EU General Court partially annuls European Commission raids on Michelin (T-188/24)

The General Court of the European Union has partially annulled the decision authorising the European Commission to search and seize the premises of Compagnie générale des établissements Michelin (Michelin) - a company dedicated to the production and marketing of car and truck tyres in the European Economic Area (EEA) and globally - as well as other companies in the sector. The proceedings took place in January 2024, with the participation of officials from the European Commission and agents from the French competition authority.

On 10 January 2024, as part of an investigation initiated ex officio, the European Commission adopted the contested decision, ordering the applicant to submit to an inspection under Article 20(4) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 101 and 102 of the TFEU.

The Commission was investigating a possible exchange of commercially sensitive information during conference calls on financial results. This included searches of offices, seizure of devices (laptops, telephones, storage units), interviews and copying of data.

At issue in the present case was point 4 of the contested decision, which motivated the searches, according to which:

"(4) This behaviour would have started at least in the year [year mentioned], although it cannot be excluded that it started earlier, and may still be ongoing [(hereinafter referred to as the "main period")]. Certain elements would indicate the existence of prior coordination for those products, at least [during an earlier period] [(hereinafter referred to as the 'earlier period', which precedes the main period by several years)]."

Michelin contested the legality of the search, alleging, among other things, a lack of sufficiently serious evidence. The General Court partially agreed, concluding that the Commission had only provided sufficiently serious evidence of anti-competitive conduct for the "main period" under investigation, and not for the "preceding period" which was also covered in the decision authorising the searches.

The Court recalled that judicial review is exercised taking into account the essential characteristics of the suspected coordination, as set out by the Commission in the contested decision. In this context, the Commission had considered that the suspected coordination concerned "in particular wholesale prices", included "the intentional use of the undertakings' public communications to inform each other of their future tariff intentions and strategies, with the aim of influencing their respective pricing policies" and had given rise, in particular, to "exchanges of commercially sensitive information [between tyre manufacturers] (including through public channels accessible to all), on those intentions and strategies".

The evidence presented for the main period is based on public statements that could be interpreted as signs of possible coordination. However, the General Court took the view that, with regard to the previous period, the statements analysed do not reveal future intentions or concrete tariff strategies that could be implemented in that timeframe.

More specifically, the Court considered that, from those statements - particularly the earliest one referred to by the Commission - it only appears that the manufacturer in question reminded its interlocutors that the increase in the price of raw materials was not a new phenomenon and that, on other occasions, that increase had been passed on to consumer prices.

The Court considered that, according to the interpretation defended by the Commission, a public statement on the possible passing on of costs could, at most, indicate a form of coordination, but only with regard to future actions. It therefore concluded that the Commission had not provided sufficiently solid evidence to show that in the previous period - also characterised by significant increases in raw material prices - the main tyre manufacturers had acted in concert, either in a similar way to that identified in the main period, or in a different way, but with the same presumed collusive objective.

In view of the absence of relevant elements contemporaneous with the preceding period and, in addition, the lack of other relevant evidence proving the existence of any coordination in that same period, the General Court concluded that the interpretation put forward by the Commission - according to which it would be plausible for the main tyre manufacturers concerned by the contested decision to have coordinated the prices of new replacement tyres for cars and trucks in the EEA during the preceding period - has not been sufficiently demonstrated. Consequently, the contested decision was annulled insofar as it referred to the previous period mentioned in point 4.

This judgement reinforces the essential importance of judicial control - either a posteriori, as is the case in European Commission proceedings, or a priori, as in the Competition Authority's proceedings in Portugal - in relation to search and seizure procedures. It also emphasises the rigour that must guide the competition authorities' duty to give reasons for their evidentiary measures.