No ‘Carte blanche’ for dawn raids under EU Antitrust Law: General Court partially annuls European Commission’s inspection decision against Michelin

The Commission initiated an investigation into potential coordination among leading tyre manufacturers regarding prices for new replacement tyres for cars and trucks within the EEA. The core concern was that these undertakings might have used public statements or earnings calls to signal future pricing intentions, thereby facilitating tacit collusion. The EU Commission’s suspicions were based, inter alia, on AI-assisted screening of publicly available documents (such as documentations of earning calls), that had – according to the EU Commission – undergone a qualitative manual review.

In January 2024, the Commission conducted an unannounced inspection at Michelin’s premises, relying on an inspection order issued pursuant to Article 20(4) of Regulation (EC) No 1/2003. Michelin subsequently brought an action for annulment before the General Court.

I. Procedural safeguards and evidentiary thresholds

The General Court partially annulled the Commission’s inspection decision. As clarified in previous case law, inspections must be necessary and not excessive relative to the objective pursued (Article 20(4) of Regulation 1/2003).

Michelin had argued that the Commission’s inspection order lacked clarity, particularly due to vague language such as “notably” or “at least.” The Court acknowledged that, at the preliminary investigative stage, the Commission must set out concrete indicia of suspected conduct.

However, the Court found that the Commission had failed to provide sufficiently serious indicia for the earlier part (“at least”) of the alleged infringement period. References to that period were made only retrospectively and were not supported by contemporaneous evidence. By contrast, for the main period of concern, the Commission had presented sufficiently serious indicia that plausibly indicated potential collusion of tyre manufacturers by public means. The inspection order was thus upheld for that period only.

II. "Signalling" through public communication

The Court also addressed the concept of “signalling” in the context of competition law. It defined signalling as the intentional use of public communication to inform competitors about future pricing intentions or commercial strategies, with the aim or effect of influencing their market behaviour – even in the absence of an explicit agreement.

According to the Court, public statements by company executives may amount to unilateral invitations to collude if they are intended to coordinate future conduct. If competitors respond in kind or adjust their market behaviour accordingly, this may even constitute a restriction of competition by object under Article 101(1) TFEU.

In this case, the Commission found that such communications were made with a signalling intent, rather than simply fulfilling legal disclosure requirements. The Court found it plausible that certain statements – such as “we want to send a signal,” “we have plans to,” or “the strategy is to focus on…” – could back a sufficient suspicion of illegal signalling (for the main period).

It’s noteworthy that the EU Commission’s defence statement refers to a highly controversial statement in the new Horizontal Guidelines (para. 432) indicating that where a company becomes aware of a potentially collusive public statement by a competitor, it may publicly distance itself or notify competition authorities, in order to mitigate exposure and demonstrate a lack of intent to participate in a concerted practice.

This judgment highlights the principle that while competition authorities possess broad investigatory powers, those powers are not without limits. In particular:

• The scope of an inspection must be justified by specific and contemporaneous indicia. Authorities may not rely on vague suspicions or seek evidence in a manner akin to a “fishing expedition.”
• Public communications, even if made pursuant to transparency obligations, can serve as the basis for antitrust investigations if they are plausibly intended to coordinate market conduct.
• However, public disclosure does not shield companies from liability: A concerted practice under Article 101(1) TFEU can arise even through public means if it facilitates coordination among competitors.

From a compliance perspective, this ruling has several practical implications:

• Legal and compliance teams should ensure that public communications – especially those by senior executives – do not inadvertently signal future pricing or strategic intentions.
• Companies should consider internal vetting processes for market-sensitive disclosures, particularly in concentrated or transparent markets, and carefully select their sources for information gathering.
• Where a company becomes aware of a potentially collusive public statement by a competitor, it must consider how to mitigate the corresponding risk. In this respect it appears worthwhile exploring whether there are other equally efficient and more practical means to demonstrate a lack of intent to participate in a concerted practice than suggested by the EU Commission (i.e. public distancing or turning to the antitrust authorities). 

Looking ahead, the case is highly important for the Commission’s approach to evidence-gathering and inspection orders – especially in sectors where market transparency and public disclosures are commonplace. It is, however, important to keep in mind that the General Court has only backed the Commission’s ability to investigate its suspicion. Neither has the Commission drawn a final conclusion nor has the Court made a final decision on whether there has been an infringement.