Case C-726/26 P, Red Bull v Commission – what a continued inspection owes the inspected
This is not the Red Bull antitrust case. It is the bill for it — or rather, for the part of the investigation the Commission chose to conduct at its own desks rather than Red Bull’s.
Facts
By decision of 8 March 2023 the Commission ordered an inspection under Article 20(4) of Regulation No 1/2003, carried out from 20 to 24 March 2023 at Red Bull’s premises in Fuschl am See, Paris and Amsterdam. At the closing meeting the Commission announced that the inspection would continue at its premises in Brussels, to examine the documents copied and further data to be supplied; that continuation ran from 14 to 20 June and from 29 August to 29 September 2023. Following the Court’s judgment in Nexans, the Commission invited a reasoned request for the additional costs caused by the continuation. Red Bull claimed travel, accommodation and subsistence for the employees and lawyers who attended in Brussels, and the whole of its lawyers’ fees, including those of a second, Brussels law firm instructed alongside its usual Austrian counsel. By decision of 23 October 2024 (Case AT.40819 – RED BULL) the Commission agreed to pay everything except the lawyers’ fees, reasoning that Red Bull had used lawyers continuously during the on-site inspection and would have done so had the examination continued there, so the fees were not costs incurred solely because of the move to Brussels. On 22 April 2026 the General Court (First Chamber, extended composition) dismissed Red Bull’s action in Case T‑682/24 (ECLI:EU:T:2026:276). Red Bull now appeals on four grounds.
Grounds of Appeal
According to the Official Journal notice, the appellants claim that the Court should set aside the General Court’s judgment, annul the Commission’s decision of 23 October 2024, and order the Commission to pay the costs before both courts.
In support of their appeal, the appellants (‘Red Bull’) rely on four grounds.
1. Error of law concerning the Commission’s hypothetical counter-scenario
Red Bull criticise the error of law made by the General Court in applying the criterion set out in the judgment in Nexans (C-606/18 P) to determine the hypothetical counter-scenario. The General Court did not properly define the normative criterion for determining the reference scenario and, consequently, incorrectly applied the legal concept of ‘additional costs’. It failed to comply with its obligation to state reasons in two respects, in that, first, it endorsed the counter-scenario put forward by the Commission without sufficient justification, although that scenario was disproportionate and therefore unlawful, and, secondly, it did not explain how that specific scenario was decisive. The General Court also infringed the principle of equality of arms, the right to be heard and the rights of the defence of Red Bull by wrongfully imposing on Red Bull the burden of justifying the determination of the counterfactual scenario.
2. Error of law concerning the consequences of the disproportionate nature of the continued inspection on the decision on costs
Red Bull criticises the General Court for failing to have regard to the link between the proportionality of the continued inspection and the extent of the obligation to reimburse the costs and, therefore, wrongly rejected the examination of that link on the ground that it was inadmissible.
3. Error of law concerning the definition of the concept of ‘additional costs’
Red Bull claims that the General Court incorrectly interpreted and applied the legal concept of ‘additional costs’. In particular, the presumption accepted by the General Court of categorically ruling out the legal costs is vitiated by an error of law, since it replaces the causality criterion set out in the Nexans case with a fixed classification and prevents Red Bull from establishing, on a case-by-case basis, the existence of additional costs that can be causally attributed.
4. Error of law/distortion of evidence concerning the rejection of the claim in the alternative
In its judgment, the General Court erred in law and distorted the evidence by refusing to consider the merits of Red Bull’s alternative argument seeking to annul the taxation of costs in so far as the taxation of costs did not provide for the reimbursement of the fees of the Brussels law firm which related to the continued inspection. Instead, the General Court rejected that argument on the ground that the Commission did not have the necessary information, although it had been communicated to the Commission and the General Court, and that Red Bull only emphasised its principal claim.
Sources
OJ notice C/2026/4293 (EUR‑Lex) · Case file on CURIA · Judgment under appeal, T‑682/24 (ECLI:EU:T:2026:276) · Regulation (EC) No 1/2003
Comment
The rule in play is six years old and was written as a safeguard. In Case C‑606/18 P, Nexans France and Nexans v Commission (ECLI:EU:C:2020:571) the Court accepted that the Commission may carry an inspection on from the undertaking’s premises to its own in Brussels, but on a condition: the continuation must not encroach on the undertaking’s rights beyond what an on-site inspection already involves, and where it “gave rise to additional costs for the undertaking under inspection solely as a result of that continuation”, the Commission may proceed only if it agrees to reimburse them on a reasoned request (paragraph 90). Red Bull is the first case to test what that promise is worth in money, and the answer so far is: the hotels, not the lawyers.
Everything turns on the counterfactual — what Red Bull would have spent had the Commission stayed in Fuschl am See. The Commission’s position, adopted by the General Court, is that a company which had lawyers at its elbow throughout the on-site phase would have kept them there for a further seven weeks, so their fees are not costs of the move but costs of the inspection. Red Bull’s first and third grounds attack that reasoning from two sides: that the General Court never articulated what the reference scenario is or why the Commission’s version of it should prevail, and that treating legal fees as categorically non-recoverable replaces the causal test in Nexans with a rule of thumb. The second point has some force. Nexans asked whether costs arose “solely as a result of” the continuation, which is a question of fact in each case; a presumption that lawyers’ fees never qualify converts it into a question of category. A company that would otherwise have used one firm and had to instruct a second in Brussels — which is Red Bull’s fourth ground — has at least an argument that the second firm’s fees are exactly what Nexans described.
The second ground is the ambitious one. Red Bull contends that the proportionality of the decision to continue in Brussels at all bears on how much must be reimbursed — in effect, that an unnecessarily long continuation should be paid for more generously. The General Court declined to examine the link and Red Bull says that was an error. If the Court of Justice engages, it will be deciding whether the Nexans condition is purely compensatory or also disciplinary: whether the reimbursement obligation is meant to make the undertaking whole, or to make the Commission think twice about how long it stays in Brussels.
None of this touches the substance of the investigation into Red Bull’s conduct in the energy drinks market, which continues on its own track. But dawn raids are where competition enforcement meets the rights of the defence most directly, and the practice of continuing them in Brussels has grown since Nexans made it lawful. A ruling on what that practice costs the Commission will be read closely by every company that has been inspected since, and by the law firms whose invoices are the subject of the dispute.