Case C-862/26 P, Vivendi v Commission – a merger rule with no shield for sources
Lagardère’s appeal, reported here last month, attacks a decision. Vivendi’s, from the same investigation, also attacks the rule the decision was taken under.
Facts
In its examination of the Vivendi/Lagardère concentration (Case M.11184), the Commission adopted Decision C(2023) 6428 of 19 September 2023, amended on 27 October 2023, under Article 11(3) of Regulation (EC) No 139/2004, requiring Vivendi to produce documents identified by search criteria across the files of named persons. Vivendi controls a media group, and early in the procedure it raised the protection of journalistic sources and the private life of the persons concerned. The Commission responded with procedural safeguards: documents capable of revealing journalistic sources would receive special protection modelled on the procedure for lawyer-client privilege, and sensitive personal material would go to a virtual data room. Documents claimed to fall under those heads were placed under seal in February and July 2024. On 3 June 2026 the General Court (Ninth Chamber, extended composition) dismissed Vivendi’s action in Case T‑1097/23 (ECLI:EU:T:2026:355), the same day as Lagardère’s (T‑1119/23). Vivendi appeals on seven grounds. In the alternative it asks the Court to refer the case back and to prohibit the Commission from accessing the documents placed under seal on 5 and 6 February 2024 and 16 July 2024 until final judgment.
Grounds of Appeal
According to the Official Journal notice, Vivendi asks the Court principally to declare Article 11(3) of Regulation No 139/2004 inapplicable under Article 277 TFEU “on the grounds of infringement of Article 10 of the ECHR and of the protection afforded to journalists’ sources by failing to provide for an ex ante legal remedy to ensure the effectiveness of that protection”, and to annul the decision in so far as it requires disclosure of documents that may undermine that confidentiality. It relies on seven grounds:
1. The General Court, in its assessment of the criticisms made by Vivendi regarding the search criteria set out in the decision at issue, infringed the appellant’s right to an effective remedy, to a fair trial and not to incriminate itself.
2. The General Court’s assessment of the reasoning in the decision at issue contains an error in law, defective reasoning and is based on a distortion of Vivendi’s plea in law.
3. The General Court erred in law and distorted the appellant’s plea in law by failing to verify that there was sufficiently strong evidence before the decision at issue was adopted.
4. The General Court should have annulled the decision at issue on the basis of the principle impossibilium nulla obligatio est, the content and scope of which it misconstrued.
5. The judgment under appeal is vitiated by an error of law, a failure to state reasons and a distortion of the facts in its assessment of the proportionality and the actual effects of the decision at issue. — The General Court should have set aside the requirement to provide documents the disclosure of which was not necessary. — The General Court should have found that the decision at issue imposed a disproportionate burden on Vivendi.
6. The General Court erred in law and distorted the facts by finding that the procedural safeguards proposed by the Commission were equivalent to an ex ante judicial review of the decision at issue, infringing the right to an effective judicial remedy and the fundamental principle of the protection of journalistic sources. — The General Court should have drawn the appropriate conclusions from the fact that Article 11(3) of Regulation No 139/2004 infringes the right to a preventive remedy against interference with the protection of journalistic sources. — The General Court should have found fault with the interference with the protection of journalistic sources expressly referred to in the decision at issue.
7. The judgment under appeal is vitiated by an error of law and a failure to state reasons in its assessment of the infringement of the right to respect for private life to which the decision at issue gives rise.
Sources
OJ notice C/2026/5212 (EUR‑Lex) · Case file on CURIA · Judgment under appeal, T‑1097/23 (ECLI:EU:T:2026:355) · Lagardère v Commission, C‑861/26 P · Regulation (EC) No 139/2004
Comment
The sixth ground is where the appeal leaves its sister case behind. Lagardère complains that the decision addressed to it invaded journalists’ sources; Vivendi says that Article 11(3) itself is defective because it contains no mechanism by which a court can examine a demand for documents that may expose sources before the documents are handed over. Its premise is the Strasbourg reading of Article 10 of the European Convention on Human Rights, under which an order to disclose sources must be open to review by a judge or other independent body before the material is accessed, because review after the fact cannot undo the disclosure. A request for information under the Merger Regulation is reviewable only by an action for annulment, after compliance — by which time the sources, if any, are already in the Commission’s hands.
The General Court’s answer, on Vivendi’s account, was that the Commission’s safeguards did the job of prior review. Those safeguards were real: documents capable of revealing sources were to be handled under a procedure modelled on the one for lawyer-client communications, and contested material was placed under seal. But a procedure the Commission designs and operates, however careful, is not a court; the question is whether the Charter and the Convention require that the check be judicial, and whether a regulation that leaves the matter to the investigating authority’s discretion can stand. A plea of illegality under Article 277 TFEU that succeeded on that basis would not merely annul one request; it would require the legislature to add a judicial step to the Commission’s information powers wherever journalistic material is involved.
The other grounds overlap heavily with Lagardère’s: whether the search criteria were adequately reasoned, whether the Commission held “sufficiently strong evidence” before compelling production, whether an order to collect material held by employees is impossible to comply with lawfully, and whether the burden was proportionate. Vivendi also asks, as Lagardère did, that the Commission be ordered to disclose the evidence on which it acted. The two appeals together will settle how far the Commission’s merger-control information powers can reach into a media group — and whether the absence of a judge before the fact is a gap the Court can tolerate.