Provisional text

9 July 2025 (*)

( Competition – Agreements, decisions and concerted practices – Administrative procedure – Decision ordering an inspection – Article 20(4) of Regulation (EC) No 1/2003 – Subject matter and purpose of the inspection – Obligation to state reasons – Sufficiently serious indicia – Protection of privacy – Judicial review )

In Case T‑188/24,

Compagnie générale des établissements Michelin, established in Clermont-Ferrand (France), represented by E. Sarrazin, J. Brousseau and J.‑P. Gunther, lawyers,

applicant,

European Commission, represented by T. Baumé, N. Cambien and M. Domecq, acting as Agents,

defendant,

THE GENERAL COURT (Second Chamber),

composed of A. Marcoulli, President, V. Tomljenović and L. Spangsberg Grønfeldt (Rapporteur), Judges,

Registrar: L. Ramette, Administrator,

having regard to the written part of the procedure, in particular:

–the application lodged at the Registry of the General Court on 8 April 2024,

–the first measures of organisation of procedure of 16 December 2024 and the applicant’s and the Commission’s responses filed at the Court Registry, respectively, on 16 and 20 January 2025,

–the second measures of organisation of procedure of 4 February 2025 and the applicant’s and the Commission’s responses filed at the Court Registry, respectively, on 21 and 19 February 2025,

further to the hearing of 5 March 2025,

gives the following

By its action under Article 263 TFEU, the applicant, Compagnie générale des établissements Michelin, seeks the annulment of Commission Decision C(2024) 243 final of 10 January 2024, ordering it and all the companies directly or indirectly controlled by it to submit to an inspection in accordance with Article 20(4) of Council Regulation (EC) No 1/2003 (Case AT.40863 – Hoops) (‘the contested decision’).

I.Background to the dispute

The applicant is active, inter alia, in the manufacturing and sale of tyres for cars and trucks in the European Economic Area (EEA) as well as worldwide.

On 10 January 2024, in the context of an investigation opened ex officio, the European Commission adopted the contested decision which ordered the applicant to submit to an inspection in accordance with 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 TFEU] (OJ 2003 L 1, p. 1).

Article 1 of the contested decision reads as follows:

‘[The applicant is required] to submit to an inspection regarding [its] potential participation in agreements or practices infringing Article 101 [TFEU] and Article 53 of the Agreement on the European Economic Area. The suspected agreements and/or concerted practices concern the coordination between the main tyre manufacturers of the prices (in particular the wholesale prices) of new replacement tyres for cars and trucks in the EEA. The suspected agreements and/or concerted practices include the deliberate use of the undertakings’ public communications in order to inform each other about their future respective pricing intentions and strategies so as to influence their respective pricing policies. That inspection may take place at any of [the applicant’s] premises, in particular those located in France.’

In Article 2(2) of the contested decision, the Commission recalls that its inspectors have the power to seize documents during the course of the inspection. Article 3 of the contested decision states that the inspection may commence on 30 January 2024 or shortly thereafter.

The relevant reasoning for the contested decision is set out in the following recitals:

–‘(2) The Commission has information indicating that the main tyre manufacturers in the EEA, including [the applicant], participated and could still be participating in anticompetitive agreements and/or concerted practices relating to the coordination of the prices (in particular the wholesale prices) of new replacement tyres for cars and trucks sold in the EEA.

–(3) In particular, according to the information in the Commission’s possession, the tyre manufacturers, including [the applicant], exchanged commercially sensitive information (including via generally accessible public channels) about their respective pricing intentions and strategies so as to influence their respective pricing policies.

–(4) That conduct started at least in [year stated], but it cannot be ruled out that it started earlier, and is still ongoing [(‘the main period’)]. Evidence points to prior coordination in relation to those goods at least [in the course of an earlier period] [(‘the earlier period’, which precedes the main period by a number of years)].

–(5) The evidence in the Commission’s possession shows that the conduct relates to new replacement tyres for cars and trucks on sale in the EEA.

–…

–(8) … In each undertaking, the managers and a limited number of trusted staff members, including those who assist internally in the preparation of public statements by the undertaking, are likely to have clear knowledge of the existence of the suspected coordination agreements and of their precise subject matter, grounds and operation. … Since restrictive agreements and anticompetitive practices are infringements of EU competition law that may give rise to financial penalties, there is a risk that, if information were gathered by means of requests for information or if the inspection were announced in advance, the relevant information might be compromised or destroyed. This applies to the information relating to the suspicions of future coordinated conduct on the markets concerning the prices (in particular the wholesale prices) of the goods in question, as well as to the suspicions regarding the manufacturers’ choice to inform competitors publicly about future pricing policies.’

On 30 January 2024, Commission inspectors, accompanied by representatives of the Autorité de la concurrence (Competition Authority, France), went to the applicant’s premises to notify it of the contested decision and to carry out the inspection. In that context, the Commission visited the offices, collected equipment (laptops, mobile telephones, tablets, storage devices), interviewed a number of people and copied the contents of the equipment collected.

The inspection was suspended on 2 February 2024.

Following the inspection’s suspension, the applicant sent the Commission a document dated 2 February 2024 in which it expressed reservations as to the content of the contested decision and to the conduct of the inspection, disputing both the material and the temporal scope of the suspected infringement as well as certain requests made by the Commission inspectors during the inspection.

The inspection resumed at the Commission’s premises in Brussels (Belgium) on 4 March 2024. It was completed on 7 March 2024.

II.Forms of order sought

The applicant claims, in essence, in the final form of its pleadings, that the Court should:

–annul the contested decision;

–order the Commission to pay the costs.

The Commission contends that the Court should:

–dismiss the action;

–order the applicant to pay the costs.

III.Law

As a preliminary point, in procedural terms, it should be observed that, at the defence stage, the Commission provided explanations and material elements to enable the Court to determine whether the Commission had reasonable grounds for suspecting infringement of the competition rules and thus to justify its decision to avail itself of its inspection powers at the applicant’s premises.

Following that provision of explanations and material elements, the Court adopted two series of measures of organisation of procedure with a view to obtaining, first, comments from the applicant on those explanations and elements and, secondly, clarifications from the Commission about certain findings made in the contested decision.

As part of the first measures of organisation of procedure, the applicant had the opportunity to amend in writing the line of argument put forward in the application, taking into account the developments of which it had become aware from reading the defence and its annexes. In the context of the second measures of organisation of procedure, the applicant was able to comment in writing on the explanations and material elements submitted by the Commission in response to the first measures of organisation of procedure. The hearing also allowed the applicant to comment on the observations made by the Commission, as part of the second measures of organisation of procedure, on the responses given by the applicant to the first measures of organisation of procedure.

Accordingly, the application for annulment of the contested decision must be examined taking account of the explanations and material elements provided by the Commission, the contents of which will be set out below when examining their classification as sufficiently serious indicia to justify a decision ordering an undertaking to submit to an inspection.

In support of the application for annulment, the applicant relies on two pleas in law, alleging, first, infringement of Article 296 TFEU and of Article 20(4) of Regulation No 1/2003 on the ground that the contested decision contains an inadequate statement of reasons and, secondly, infringement of the fundamental right to respect for the home and communications, also referred to as the ‘right to the inviolability of the home’ or the ‘right to privacy’, on the ground that the contested decision is arbitrary and disproportionate.

In that regard, it should be noted that, while the measure contested by the present action is indeed the decision ordering the inspection at issue and while all the pleas raised by the applicant seek exclusively the annulment of that decision, certain remarks and certain arguments put forward by the applicant in the written part of the procedure relate to the conduct of the inspection which the Commission carried out to give effect to the contested decision.

It must be recalled, in that regard, that, according to settled case-law, the way in which a decision ordering an inspection is applied has no bearing on the lawfulness of that decision, and that an undertaking cannot therefore plead unlawfulness of the investigation procedures to support claims for annulment of the measure on the basis of which the Commission carried out that investigation (see judgment of 20 June 2018, České dráhy v Commission, T‑325/16, EU:T:2018:368, paragraph 22 and the case-law cited; see also, in that respect, Opinion of Advocate General Pitruzzella in Les Mousquetaires and ITM Entreprises v Commission, C‑682/20 P, EU:C:2022:578, points 67 and 68).

That said, since the applicant does not allege that the conduct of the inspection itself is the reason why inadequate reasons are stated for the contested decision or why its privacy was unlawfully infringed, the applicant must be regarded as having drawn attention to the conduct of the inspection solely to illustrate the alleged lack of clarity and of precision vis-à-vis the statement of reasons or the extent of the interference authorised by a decision ordering it to submit to an inspection (see, by analogy, judgment of 20 June 2018, České dráhy v Commission, T‑325/16, EU:T:2018:368, paragraphs 23 and 24).

It is therefore from that perspective that the remarks and arguments at issue must be assessed when examining the pleas for annulment of the contested decision.

A.The first plea, alleging an inadequate statement of reasons

The applicant submits that the contested decision does not satisfy the obligation to state reasons on account of its excessively succinct, generic, vague and ambiguous contents. It claims that the statement of reasons is imprecise and broad owing to the use of the words ‘and/or’, ‘in particular’, ‘including’ and ‘at least’. Consequently, the material and temporal scopes of the suspected infringement are equivocal, unjustified and unreasonable, with the result that it prevented the applicant from understanding clearly what it was accused of and, therefore, denied it the opportunity to protect its rights fully.

The Commission disputes the applicant’s arguments.

1.Preliminary observations

As a preliminary point, it should be recalled that the statement of reasons required under Article 296 TFEU for measures of institutions of the European Union must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted that measure in such a way as to enable the person concerned to ascertain the reasons for it and to enable the competent Court of the European Union to exercise its jurisdiction to review legality (see judgment of 25 June 2014, Nexans and Nexans France v Commission, C‑37/13 P, EU:C:2014:2030, paragraph 31 and the case-law cited).

The requirement to state reasons must be assessed by reference to the circumstances of the case, in particular the content of the measure in question, the nature of the reasons given and the interest which its addressee may have in obtaining explanations. It is not necessary for the reasoning to specify all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see judgment of 25 June 2014, Nexans and Nexans France v Commission, C‑37/13 P, EU:C:2014:2030, paragraph 32 and the case-law cited).

It is also necessary to take into account the legal context in which the inspections by the Commission take place. Articles 4 and 20(1) of Regulation No 1/2003 confer inspection powers on the Commission which are designed to enable it to perform its task of protecting the internal market from distortions of competition and to penalise any infringements of the competition rules on that market (see judgment of 25 June 2014, Nexans and Nexans France v Commission, C‑37/13 P, EU:C:2014:2030, paragraph 33 and the case-law cited).

Thus, so far as concerns, specifically, the Commission’s inspection decisions, it is apparent from Article 20(4) of Regulation No 1/2003 that those inspection decisions must indicate, inter alia, the subject and the objective of the inspection. That obligation to state specific reasons constitutes, as the Court of Justice has made clear, a fundamental requirement not only to show that the intervention envisaged within the undertakings concerned was proportional, but also to put those undertakings in a position to understand the scope of their duty to cooperate, while at the same time preserving their rights of the defence (see judgment of 25 June 2014, Nexans and Nexans France v Commission, C‑37/13 P, EU:C:2014:2030, paragraph 34 and the case-law cited).

In that regard, it must be recalled that the Commission is not required to communicate to the addressee of a decision ordering an inspection all the information at its disposal concerning the suspected infringements, or to make a precise legal analysis of those infringements, providing it clearly indicates the suspicions which it intends to investigate (see, to that effect, judgment of 25 June 2014, Nexans and Nexans France v Commission, C‑37/13 P, EU:C:2014:2030, paragraph 35 and the case-law cited).

Although, admittedly, the Commission is obliged to indicate as precisely as possible the evidence sought and the matters to which the investigation must relate, it is, on the other hand, not essential in a decision ordering an inspection to define precisely the relevant market, to set out the exact legal nature of the suspected infringements or to indicate the period during which those infringements were committed, provided that that inspection decision contains the essential elements set out in paragraphs 24 to 28 above (see judgment of 25 June 2014, Nexans and Nexans France v Commission, C‑37/13 P, EU:C:2014:2030, paragraph 36 and the case-law cited).

Having regard to the fact that inspections take place at the beginning of an investigation, the Commission still generally lacks precise information to make a specific legal assessment and must first verify the accuracy of its suspicions and the scope of the incidents which have taken place, the aim of the inspection being specifically to gather evidence relating to a suspected infringement (see, to that effect, judgment of 25 June 2014, Nexans and Nexans France v Commission, C‑37/13 P, EU:C:2014:2030, paragraph 37 and the case-law cited).

2.The complaint based on a succinct or generic statement of reasons

In the present case, it should be observed that the contested decision contains a specific statement of reasons relating to the subject and the objective of the inspection which, in accordance with the case-law referred to in paragraphs 24 to 30 above, is intended to show that the intervention envisaged at the applicant’s premises is proportional and to put the applicant in a position to understand the scope of its duty to cooperate, while at the same time preserving its rights of the defence. That statement of reasons is thus meant to satisfy the Commission’s obligation to indicate clearly the suspicions which it intends to investigate and, as precisely as possible, the evidence sought and the matters to which the investigation must relate, without it however being required to disclose to the applicant all the information in its possession when notifying the inspection decision or when carrying out, in that decision, a meticulous legal classification of an infringement which is as yet merely suspected and by no means established.

In that regard, it is apparent from Article 1 of the contested decision, which sets out the subject and the objective of the inspection, that the Commission’s suspicions relate to the applicant’s potential participation in agreements or practices infringing Article 101 TFEU and Article 53 of the EEA Agreement relating to ‘the coordination between the main tyre manufacturers of the prices (in particular the wholesale prices) of new replacement tyres for cars and trucks in the EEA’ (‘the suspected coordination’).

The statement of reasons contained in the contested decision also provides a number of clarifications which help to better define the coordination suspected by the Commission, which concerns ‘in particular wholesale prices’ (Article 1 and recital 2 of the contested decision), includes ‘the intentional use of the undertakings’ public communications to provide information to each other about their future respective pricing intentions and strategies in order to influence their respective pricing policies’ (Article 1 of the contested decision) and gave rise, in particular, to ‘exchanges of commercially sensitive information [between tyre manufacturers] (including via generally accessible public channels) about their respective pricing intentions and strategies in such a way as to influence their respective pricing policies’ (recital 3 of the contested decision).

Contrary to what the applicant claims, such a statement of reasons cannot be regarded as succinct or generic, since it sets out the suspicions which the Commission intended to investigate during the inspection regarding the suspected coordination and indicates the evidence sought and the matters to which the investigation was to relate.

3.The complaint based on a vague, ambiguous, imprecise or broad statement of reasons and its consequences for understanding what is alleged

As regards the question of whether the statement of reasons for the contested decision is clear and as precise as possible, it is necessary, when examining the statement of reasons, to make sure that the Commission’s description of the suspected coordination contained in that decision does not contain inaccuracies or ambiguities such that the applicant is unable to understand the scope of its duty to cooperate and preserve at the same time its right of the defence within the meaning of the case-law referred to in paragraphs 24 to 30 above.

In that regard, the use of the alternative construction ‘and/or’ in the description of the form taken by the suspected coordination, which – according to the Commission – may have occurred by means of agreements between undertakings just as well as via concerted practices, does not have any particular consequence for the applicant. In the present case, the exact legal nature of the suspected coordination, whether an agreement between undertakings or a concerted practice, is dependent on an assessment which cannot be required when the inspection decision is drafted (see, to that effect, judgment of 25 June 2014, Nexans and Nexans France v Commission, C‑37/13 P, EU:C:2014:2030, paragraphs 36 and 37). In addition, and in any event, that nature does not appear in the present case capable of altering the scope of the applicant’s duty to cooperate or the extent of its rights of the defence during the inspection. When questioned on this point at the hearing, the applicant was thus unable to identify such a consequence as far as the present case was concerned.

As for the use of the words ‘in particular’ or ‘including’ to describe the Commission’s suspicions, their use makes it easier to understand the statements in which they appear, that is to say, ‘in particular wholesale prices’ and ‘including via generally accessible public channels’, enabling the applicant to gain a better of understanding of what it is alleged to have done when it is ordered to submit to an inspection.

First, those statements set out the content of the suspected coordination. Thus, the Commission’s suspicions relate to an infringement of the competition rules consisting in the coordination of the prices of new replacement tyres for cars and trucks sold in the EEA. By indicating that the suspected coordination concerns ‘in particular’ – that is to say, in a noteworthy manner – wholesale prices, the Commission provides a clarification as to what the applicant is alleged to have done. Similarly, by making clear that the coordination of the prices of the main tyre manufacturers, including the applicant, took the form of an exchange of commercially sensitive information about their respective pricing intentions and strategies which involves – as is clear from the meaning of the word ‘including’ – exchanges made on generally accessible public channels or includes the intentional use of the undertakings’ public communications, the Commission clarifies the suspected coordination.

Secondly, the use of the words ‘in particular’ or ‘including’ makes it clear that the information in the Commission’s possession is not just the information that follows those words. The Commission’s suspicions thus encompass more broadly the coordination by manufacturers of the prices, and not just the wholesale prices, of new replacement tyres for cars and trucks in the EEA, and imply that means other than generally accessible public channels may have been used to exchange commercially sensitive information about those manufacturers’ respective pricing intentions and strategies.

The use of the words ‘in particular’ and ‘including’ demonstrates that the examples provided are not exhaustive indications of the material scope of the suspected infringement.

As for the use of the words ‘at least’ to define the temporal scope of the suspected coordination, it is apparent from the first sentence of recital 4 of the contested decision that that coordination began ‘at least’ during a main period, that it could not be ruled out that it began earlier and that it was still ongoing when the contested decision was adopted. It is likewise apparent from the second sentence of that recital that there are factors indicating prior coordination in relation to new replacement tyres for cars and trucks sold in the EEA ‘at least’ over the course of an earlier period.

In the present case, it should be observed that, by deciding on its own initiative to provide certain indications as to the temporal scope of the suspected coordination, the Commission took the view that that information had to be set out in the contested decision in order for the applicant to be able to understand the scope of its duty to cooperate and to protect its rights of the defence during the inspection. Those indications thus form part of the statement of reasons and, as such, make it possible to determine the matters to which the inspection was to relate.

Thus, it must be held that the statement of reasons set out in paragraph 41 above enables the applicant to understand the scope of the contested decision and the General Court to exercise its power of review. That statement of reasons indicates, first, that the suspected coordination ‘began at least’ during the main period, it being impossible to rule out that it ‘began earlier’ or that it ‘is still ongoing’, and, secondly, that there are factors indicating prior coordination ‘at least’ during the earlier period. That statement of reasons must also be understood as meaning – as the Commission confirms before the General Court – either that the suspected infringement could have lasted for a long period of time, that is to say, from the start of the earlier period until the end of the main period indicated in the contested decision, or that the suspected infringement began at least during the earlier period and recommenced at least during the main period and that, in those circumstances, it would be necessary to determine whether it had been continued or repeated, including during the interim period separating the earlier period from the main period as referred to in the contested decision.

It is clear from those meanings, which the applicant was able to understand, that the applicant was not in a situation in which it was prevented from understanding the Commission’s suspicions clearly and, therefore, was denied the opportunity to protect its rights of the defence fully after the contested decision was notified.

In that regard, it must be stated, as the Commission points out, that that statement of reasons enabled the applicant to allege that no evidence whatsoever was provided as regards the period between the two periods mentioned in the contested decision.

Similarly, more broadly, the applicant’s line of argument concerning the ambiguous, unjustified or unreasonable nature of the statement of reasons vis-à-vis the material and the temporal scope of the suspected infringement does not in fact concern a problem of comprehension, but is rather based, in essence, on the idea that the information provided by the Commission in the contested decision concerning the substance of its suspicions is not supported by sufficiently serious indicia.

Such matters, which are concerned not with the existence of a statement of reasons as such but rather with the existence of grounds capable of justifying the suspicions indicated, will be examined below in the context of the second plea, taking into account the explanations and material elements provided by the Commission to enable the judicial review of a decision of an administrative nature which orders its addressee to submit to an inspection for the reasons set out in that decision.

It follows from the foregoing that the first plea must be rejected as unfounded, since the statement of reasons for the contested decision does enable the applicant, pursuant to Article 296 TFEU, to ascertain the reasons for the measure adopted and the General Court to exercise its power of review. That statement of reasons also indicates, in accordance with Article 20(4) of Regulation No 1/2003, the subject and the objective of the inspection in a sufficient manner to show that the intervention envisaged within the applicant’s premises is proportional and to put it in a position to understand the scope of its duty to cooperate, while at the same time preserving its rights of the defence.

B.The second plea, alleging infringement of the right to respect for the applicant’s home and communications

The applicant claims that the contested decision does not respect the right to respect for its home and communications, also referred to as the ‘fundamental right to the inviolability of the home’. That plea is divided into two parts. The applicant submits, first, that the contested decision is arbitrary because the Commission did not have reasonable grounds to suspect the applicant’s involvement in an infringement of competition law. Secondly, the contested decision constitutes disproportionate interference in its operation and its performance. As a preliminary point, the applicant essentially argues that, given the similarity between an example taken from the Guidelines on the applicability of Article 101 [TFEU] to horizontal co-operation agreements (OJ 2023 C 259, p. 1; ‘the 2023 Guidelines’) and the suspected coordination, the sole purpose of the present case is to give substance to the theoretical case cited in that example, without account being taken of the particular features of the situation being examined.

1.Preliminary observations

It must be stated that a legal person may rely, just like a natural person, on the fundamental right to the inviolability of the home, which forms part of the protection of privacy.

It should be recalled that the need for protection against arbitrary or disproportionate intervention by the public authorities in the sphere of private activities of any person, whether natural or legal, is recognised as a general principle of EU law (see judgment of 20 June 2018, České dráhy v Commission, T‑325/16, EU:T:2018:368, paragraph 34 and the case-law cited; judgment upheld on appeal by judgment of 30 January 2020, České dráhy v Commission, C‑538/18 P et C‑539/18 P, not published, EU:C:2020:53).

It should also be noted that the fundamental right to the inviolability of the home is a general principle of EU law, as expressed in Article 7 of the Charter of Fundamental Rights of the European Union (‘the Charter’), which corresponds to Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (see judgment of 18 June 2015, Deutsche Bahn and Others v Commission, C‑583/13 P, EU:C:2015:404, paragraph 19 and the case-law cited).

Thus, under Article 7 of the Charter, everyone has the right to respect for his or her home and communications. Article 52(1) of the Charter states in that regard that any limitation on the exercise of that right must be provided for by law and respect the essence of that right and the principle of proportionality, according to which limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others.

Similarly, under Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, everyone has the right to respect for his or her home and his or her correspondence and there is to be no interference by a public authority with the exercise of that right except such as is in accordance with the law and is necessary in a democratic society.

In practice, in order to protect the sphere of activities of a legal person against arbitrary or disproportionate intervention by the public authorities and to respect the fundamental right to the inviolability of the home, that is to say, the right of a legal person to respect for its home and its communications, first, it should be recalled that a decision ordering an inspection must be directed at gathering the necessary documentary evidence to check the actual existence and scope of a given factual and legal situation concerning which the Commission already possesses certain information, constituting reasonable grounds for suspecting an infringement of the competition rules (see judgment of 20 June 2018, České dráhy v Commission, T‑325/16, EU:T:2018:368, paragraph 35 and the case-law cited).

In other words, having reasonable grounds for suspecting infringement of the competition rules is a prerequisite for the Commission to order an inspection pursuant to Article 20(4) of Regulation No 1/2003 (judgment of 20 June 2018, České dráhy v Commission, T‑325/16, EU:T:2018:368, paragraph 36).

Likewise, also in accordance with the principles referred to in paragraphs 51 to 56 above, the terms of a decision ordering an inspection must not exceed the scope of the infringement which may be suspected on such grounds (judgment of 20 June 2018, České dráhy v Commission, T‑325/16, EU:T:2018:368, paragraph 37).

Since the statement of reasons for a decision ordering an inspection circumscribes the powers conferred on the Commission’s agents, a search may be made only for those documents coming within the scope of the subject matter of the inspection (judgment of 18 June 2015, Deutsche Bahn and Others v Commission, C‑583/13 P, EU:C:2015:404, paragraph 60). The general principle mentioned in paragraph 51 above thus precludes wordings, in inspection decisions, that would extend the scope of those powers beyond that which arises from the reasonable grounds which the Commission has at its disposal on the date of adoption of such a decision (see judgment of 20 June 2018, České dráhy v Commission, T‑325/16, EU:T:2018:368, paragraph 41 and the case-law cited).

It is in that context that it is necessary to assess the applicant’s line of argument concerning the arbitrary or disproportionate nature of the contested decision in the light of the right to respect for its home and communications.

2.The similarity between an example mentioned in the 2023 Guidelines and the suspected coordination

The applicant questions the statement of reasons and both the need for and the proportionality of the contested decision, in so far as that decision appears to be intended to apply an example which has no basis in case-law and was not submitted for public consultation. Thus, shortly before the inspection, the Commission gave the example of a new case of infringement of the competition rules in the 2023 Guidelines. That example was not included in the draft guidelines submitted for public consultation and contains no reference to case-law or to decision-making practice. In the applicant’s view, the similarity between that example and the contested decision, which essentially refers to information relating to transcriptions of ‘earnings calls’, unilateral public announcements of price increases and an alleged sector discipline to maintain margins, is therefore surprising.

The Commission contends that, even if the similarity referred to did exist, the applicant fails to explain how that would make the contested decision arbitrary and disproportionate.

In the present case, it must be observed first of all that, in its presentation of the explanations and material capable of justifying the contested decision, the Commission began by arguing that, in its assessment, public statements by undertakings could facilitate coordination and supplement, or even replace, secret communications with a view to implementing anti-competitive collusive practices. In order to consider such a scenario, the Commission pointed out that it had provided an example relating to ‘unilateral public announcements’ in the part of its 2023 Guidelines relating to the compatibility of exchanges of information. That example, example 4 in paragraph 432 of the 2023 Guidelines, reads as follows:

‘Situation: The [Chief Executive Officer (CEO)] of a major producer of a homogeneous product refers publicly in a regular earnings call to the need to respond to recent raw material price increases and address the current excessively low profit margins by means of an industry-wide price increase. She mentions that she would go along with any price increase that competitors would announce in the market. She also expresses her conviction that the industry is ‘disciplined enough’ to know what it takes now to ‘get the margins right again’. After all, she says, the industry successfully implemented price increases ten years ago, when it found itself in a similar situation.

Analysis: The statements of the CEO in the earnings call can be read as a unilateral invitation to collude. The fact that the announcement takes place in public does not as such exclude that it could constitute a concerted practice within the meaning of Article 101(1) [TFEU]. The statements may provide a potential focal point for coordination between competitors. If, for instance, other competitors make contemporary statements or behave in the market showing that they have taken the invitation to collude into account when determining their own future course of action on the market, and, depending on the legal and economic context, the conduct may amount to a restriction of competition by object within the meaning of Article 101(1) [TFEU]. Other competitors may limit such risk by publicly distancing themselves from the announcements or by reporting the announcements to the public authorities.’

Similarly, it must be stated that, in the contested decision, the Commission referred to suspicions relating to a practice infringing Article 101 TFEU relating to ‘the coordination between the main tyre manufacturers of the prices … of new replacement tyres for cars and trucks in the EEA’, which includes ‘the intentional use of undertakings’ public communications to provide information to each other about their respective future intentions and pricing strategies in order to influence their respective pricing policies’ and which gave rise, in particular, to ‘exchanges of commercially sensitive information [between tyre manufacturers] (including via generally accessible public channels) about [those] intentions and strategies’.

Nevertheless, while there is a degree of similarity between the situation set out in example 4 in paragraph 432 of the 2023 Guidelines and the suspected coordination, that similarity cannot as such support the conclusion that the contested decision, which has already been found to have complied with the obligation to state reasons following the examination of the first plea in law, was consequently arbitrary or disproportionate.

First, in general terms, it should be borne in mind that, as the institution responsible for implementing competition policy, the Commission has the opportunity to provide, in guidelines, guidance as to its interpretation of the compliance with competition law of conduct which has not yet been penalised.

Secondly, as far as concerns the present case more specifically, it is apparent from the explanations and the elements provided by the Commission in the defence that the contested decision was adopted at the end of a process which involved identifying a particular situation which satisfied the criteria defined by the Commission as part of its role to implement competition policy.

In those circumstances, nothing in the file supports the finding that the contested decision was adopted with the sole purpose of giving substance to an example set out in the 2023 Guidelines. On the contrary, the explanations and elements provided by the Commission in the defence and in response to the first measures of organisation of procedure rather support the finding that the contested decision is the result of the implementation of objectively defined principles which do not concern one sector or certain undertakings in particular (see paragraphs 91 to 104 below).

Accordingly, the similarity between an example set out in the 2023 Guidelines and the suspected coordination in the present case cannot as such call into question the need for or the proportionality of the contested decision. The line of argument put forward in that regard by the applicant must therefore be rejected as unfounded.

3.The first part, alleging that the contested decision is arbitrary

The applicant claims that the contested decision is arbitrary in nature, in that it allowed the Commission to conduct a fishing expedition at its premises and into its communications. First, the contested decision states that ‘the Commission has information’ and ‘evidence’ relating to a suspected coordination, without providing further details about their nature, form, date or originator. Secondly, that lack of detail, just like the imprecise and incomplete description of the suspected coordination, suggests that the Commission did not have reasonable grounds to substantiate its suspicions. It is therefore for the Courts of the European Union to determine whether the Commission had such grounds. Thirdly, the emphasis placed on communication made via generally accessible public channels or on a general and unsubstantiated assessment of the concept of price points to a manifest disregard for how a company sets prices, which is a particularly complex process and cannot be reduced to a few statements. That lack of understanding renders the reasons for the inspection set out in the contested decision ineffective.

The Commission disputes the applicant’s arguments. It argues that it had reasonable grounds for suspecting the existence of the anti-competitive conduct referred to in the contested decision and thus to justify the inspection, as is apparent from the information provided to the Court.

In the present case, it is necessary to determine, first, whether the Commission had reasonable grounds for suspecting an infringement of the competition rules by the applicant and, secondly, whether the scope of the inspection as circumscribed by the contested decision was restricted to the infringement which could be suspected by the Commission on the basis of such grounds.

(a)No need to disclose all the information at the Commission’s disposal in the contested decision

It should be noted that the parties agree that, while it is for the Commission to provide certain information in a decision ordering an inspection, namely a summary of the suspicions upon which it relies and a statement that provides grounds to substantiate those suspicions reasonably, that decision does not have to set out all the information at the Commission’s disposal at that stage of the investigation. A balance must be struck between what must be set out in the contested decision and what does not have to be stated therein.

Such balance is referred to on several occasions in the case-law.

Thus, while the Commission is not required to disclose to the addressee of a decision ordering an inspection all the information at its disposal concerning the suspected infringement, it must, however, state in the inspection decision, as precisely as possible, the suspicions that it wishes to investigate, namely what it is looking for and the matters to which the inspection must relate (see judgment of 20 June 2018, České dráhy v Commission, T‑325/16, EU:T:2018:368, paragraphs 38 and 39 and the case-law cited).

Similarly, if, in order to establish that an inspection is justified, the Commission is required to show, in a properly substantiated manner, in the decision ordering the inspection, that it is in possession of information and evidence providing reasonable grounds for suspecting the infringement of which the undertaking subject to the inspection is suspected, at the preliminary investigation stage it cannot be required to indicate the evidence, that is to say, the indicia leading it to consider that Article 101 TFEU has possibly been infringed. Such an obligation would upset the balance struck by the case-law between preserving the effectiveness of the investigation and upholding the rights of the defence of the undertaking concerned (see, by analogy, judgment of 20 June 2018, České dráhy v Commission, T‑325/16, EU:T:2018:368, paragraph 45 and the case-law cited).

It is apparent from the foregoing that, in the contested decision, the Commission had to set out the substance of its suspicions in the form which it considered appropriate and state that it had grounds to substantiate those suspicions if required. In addition, it was also required, where appropriate, to establish that such a decision did not unduly interfere with the right to respect for the home and communications.

In that context, contrary to what the applicant claims, the Commission cannot be criticised for having stated in the contested decision that it ‘had information’ and ‘evidence’ relating to the suspected coordination or to certain aspects of it without providing further details than those stated therein about the nature or the form of that information and evidence, or even clarifications as to their date or originator. Such indications or clarifications are not required when the Commission notifies the decision ordering an inspection.

(b)The reasonable nature of the grounds put forward by the Commission to justify the contested decision

(1)Preliminary observations

It should be noted that the parties are in agreement that, when the Courts of the European Union are called upon, as in the present case, to review a decision ordering an inspection for the purposes of ensuring that that decision is in no way arbitrary, they must satisfy themselves that there are reasonable grounds for suspecting an infringement of the competition rules by the undertaking concerned (see judgment of 20 June 2018, České dráhy v Commission, T‑325/16, EU:T:2018:368, paragraph 48 and the case-law cited).

In that regard, it is apparent from the case-law that, when the undertaking which is the recipient of a decision taken under Article 20(4) of Regulation No 1/2003 produces some evidence casting doubt on whether the Commission had reasonable grounds for adopting such a decision, the Court must examine those grounds and determine whether they are reasonable (see judgment of 20 June 2018, České dráhy v Commission, T‑325/16, EU:T:2018:368, paragraph 49 and the case-law cited). Such a determination, which requires the Court to obtain disclosure of the reasonable grounds considered relevant by the Commission for the purposes of that demonstration, was made in the cases which gave rise to the judgments of 14 November 2012, Nexans France and Nexans v Commission (T‑135/09, EU:T:2012:596), and of 20 June 2018, České dráhy v Commission (T‑325/16, EU:T:2018:368), as well as in the cases which gave rise to the judgments of 5 October 2020, Casino, Guichard-Perrachon and AMC v Commission (T‑249/17, EU:T:2020:458); Intermarché Casino Achats v Commission (T‑254/17, not published, EU:T:2020:459); and Les Mousquetaires and ITM Entreprises v Commission (T‑255/17, EU:T:2020:460).

As is apparent from the judgment of 18 June 2015, Deutsche Bahn and Others v Commission (C‑583/13 P, EU:C:2015:404, paragraphs 30 to 36), the presence of an in-depth, post-inspection judicial review of legality, carried out on the basis of the evidence adduced by the applicant in support of the pleas in law relied upon and covering both questions of law and questions of fact, is capable of offsetting the lack of prior judicial authorisation and ensuring the compatibility of the inspection measure with the fundamental right to inviolability of the home.

In the present case, that judicial review is carried out taking account of the key features of the suspected coordination that were set out by the Commission in the contested decision.

Thus, in material terms, the suspected coordination concerned ‘in particular wholesale prices’, included ‘the intentional use of the undertakings’ public communications to provide information to each other about their respective future pricing intentions and strategies in order to influence their respective pricing policies’ and gave rise, in particular, to ‘exchanges of commercially sensitive information [between tyre manufacturers] (including by generally accessible public channels) about [those] intentions and strategies’.

Similarly, in terms of its timing, the suspected coordination took place, ‘at least’, during the main period and the earlier period, for which the Commission indicated the corresponding years.

It should also be recalled that, in the present case, the Commission provided in the defence explanations and material elements to enable the Court to determine whether it had reasonable grounds to support its suspicions and to justify the inspection, which facilitated the review by the Court.

As to whether those explanations and those material elements can be regarded as sufficiently serious to justify the inspection, the following must be borne in mind.

First, the issue here is not to ascertain whether the corresponding indicia can establish, and not just be grounds for suspecting, the existence of the suspected anti-competitive conduct in the light of the criteria defined in Article 101(1) TFEU. Such a task is as yet premature, since what matters in particular at that stage of the investigation is whether an inspection, which is intended to substantiate the suspicions that may be inferred from those indicia, could enable the Commission to gather the information which might still be missing in order to establish the suspected infringement, thus justifying the Commission’s interference with the applicant’s right to respect for its home and its communications.

It follows from the distinction between evidence of an infringement and indicia forming the basis of a decision ordering an inspection that the latter do not have to demonstrate the existence or the content of an infringement, unless the powers conferred on the Commission by Article 20 of Regulation No 1/2003 are to be entirely deprived of their purpose (see, to that effect and by analogy, judgment of 14 March 2014, Cementos Portland Valderrivas v Commission, T‑296/11, EU:T:2014:121, paragraph 59).

Therefore, the fact that the evidence held by the Commission may be subject to different interpretations does not preclude it from constituting reasonable grounds, since the interpretation favoured by the Commission is plausible (see, by analogy, in relation to a decision requesting information, judgment of 14 March 2014, Cementos Portland Valderrivas v Commission, T‑296/11, EU:T:2014:121, paragraph 59). In assessing such plausibility, it should be borne in mind that the Commission’s power of investigation implies the power to search for various items of information which are not already known or fully identified (see judgment of 14 November 2012, Nexans France and Nexans v Commission, T‑135/09, EU:T:2012:596, paragraph 62 and the case-law cited), provided that that information can be linked, after examination, to the subject matter of the inspection and to the sufficiently reasonable grounds forming the basis of the suspicions of an offence justifying the decision ordering an inspection.

It should also be recalled that the various indicia on the basis of which an infringement can be suspected must not be assessed separately but as a whole, and can be mutually corroborative (see, to that effect, judgments of 27 November 2014, Alstom Grid v Commission, T‑521/09, EU:T:2014:1000, paragraph 54 and the case-law cited, and of 29 February 2016, EGL and Others v Commission, T‑251/12, not published, EU:T:2016:114, paragraph 150 and the case-law cited).

In addition, it should also be observed that the context of the present case is that of a case in the preliminary investigation stage, that is to say, at a time when the Commission has not yet taken a view on whether the suspected infringement actually exists. At that stage, the fact that the Commission carried out an inspection does not mean that the undertaking concerned is guilty of anti-competitive conduct and in no way prejudices the outcome of the ongoing investigation. It should therefore be recalled that the applicant enjoys the presumption of innocence and that it will be for the Commission, as the case may be, in the final decision to prove the existence of the infringement of Article 101(1) TFEU suspected in the contested decision.

(2)The methodology followed to identify the suspicious statements

Before examining the explanations and material elements put forward by the Commission, a decision must be reached regarding the parties’ arguments concerning the methodology used to identify the tyres sector.

It should be recalled that, in its presentation of the explanations and material elements capable of justifying the contested decision, the Commission explained that the attention drawn to the incidences of anti-competitive coordination by means of public channels (see paragraph 62 above) had led it to establish a system of market monitoring to analyse several hundred thousand earnings calls in various sectors and in a number of geographical areas to identify suspicious public statements. The Commission stated in that regard that earnings calls were organised periodically between an undertaking’s management and analysts, investors and the media to discuss that undertaking’s financial results, and that the content of those earnings calls reproduced in transcriptions was accessible to the public, with some undertakings publishing them on their website, or could be consulted in pay-to-view databases.

According to the Commission, the purpose of the analysis which it carried out was to identify those situations in which the management of rival undertakings used, with particular frequency and for an extended period, phrases that could point to collusion. The result of that analysis was that the tyres sector differs in that regard from other industries on account of the high number of suspicious public communications identified by the Commission.

In the context of the first measures of organisation of procedure, the Court asked the Commission to clarify the content of the steps taken by the Commission to identify the tyres sector. In so doing, the Court acted upon the observations submitted at the same time by the applicant about the information disclosed by Commission in the defence. According to those observations, the information provided concerning the identification of the tyres sector was highly evasive and was unable to explain why that sector was ‘problematic’.

In response to that request, first of all, the Commission stated that it had compiled a database consisting of hundreds of thousands of earnings calls obtained from a financial data provider. It also indicated that it had carried out a qualitative analysis of the data in that database using key search terms over a lengthy period which included not just the main period but also the earlier period (‘the search period’) in order to identify the existence of potential collusive practices and, thus, those sectors in which all earnings calls would be further examined in detail on the basis of a qualitative analysis. According to what the Commission stated, two categories of key search terms had been used: a first category composed of approximately 100 bigrams (that is, two consecutive words) related to relevant strategic commercial decisions and a second category composed of more than 400 bigrams intended to identify statements relating to how competitors behaved or would behave in the future. In its response, the Commission provided some examples of bigrams used for each of those categories.

As regards the results obtained, the Commission went on to note that, while half of all earnings calls analysed did not contain any mention of bigrams falling into those categories, the earnings calls of the main tyre manufacturers were characterised by a significant number of communications including at least one bigram connected with strategic commercial decisions and a significant number of communications including at least one bigram connected to competitive conduct. In addition, a not insignificant proportion of those earnings calls were in the ‘Top 5’ or ‘Top 10’ of the earnings calls of all undertakings considered over the search period which mentioned those bigrams most often. The earnings calls of the main tyre manufacturers also stood out by virtue of the frequency of use of the bigrams falling into one of the two categories.

As examples of those results, the Commission referred to certain earnings calls of the main tyre manufacturers, all of which took place during the main period or shortly beforehand, for which it stated the number of bigrams cited, the category of bigrams concerned (commercial strategy or competitive conduct) and the ranking of those earnings calls at the top of the list of earnings calls which most often mentioned bigrams in that category.

It was on the basis of that information that the Commission took the view that the main tyre manufacturers differed from undertakings in other sectors on account of the higher number of communications including bigrams that might indicate potential collusive conduct, which were subsequently examined in qualitative terms in order to understand better the context in which the identified bigrams appeared. The Commission explained in that regard that the qualitative analysis of the earnings calls of those main tyre manufacturers had covered both earnings calls identified on completion of the quantitative analysis and earnings calls which that analysis had not identified. The information set out above thus enabled the Commission to establish the link that existed, in its view, between theoretical conduct consisting of unilateral public announcements and the present case.

The observations submitted by the applicant regarding the description of the steps taken by the Commission in the context of its initial quantitative analysis cannot call into question the methodology and the results of the analysis set out above.

In its observations on the clarifications provided by the Commission, the applicant alleges that the quantitative analysis is entirely incapable of providing the slightest indication of collusion. It submits that the examples of bigrams provided by the Commission are not at all problematic, as they are frequently used by companies in the tyres sector or other sectors, and the corresponding statements could easily be explained by data relating to the goods, the market or the period at issue. In that regard, the applicant submits extracts of earnings calls of undertakings operating in other industries or of other tyre manufacturers which include statements of the same kind as the statements at issue. It also argues that there are many justifications for such statements, such as the implementation of an innovation-based industrial strategy, the presence of external inflationary tensions or the need to reply to analysts’ questions.

It must, however, be stated that those observations relate, in essence, less to the initial quantitative analysis than to the results of the subsequent qualitative analysis.

As the Commission explains, the quantitative analysis simply enabled the tyre sector to be identified in the sense that, following the examination of the earnings calls which appeared in its database, the earnings calls of the main tyre manufacturers were characterised by the – at least significant – presence of one or more bigrams used as key search terms. As the Commission likewise explains, the presence of a bigram in an earnings call was not sufficient in itself. It was only after the ‘qualitative’ analysis, which the Commission also refers to as the manual examination, that the corresponding statement was regarded as capable of indicating potential collusion. Furthermore, the Commission makes clear that the qualitative analysis was the decisive factor in identifying the statements at issue in the present case, in particular since that analysis enabled it to understand better the context in which the bigrams appeared, to dismiss irrelevant documents or even to identify potentially problematic public statements by the main tyre manufacturers which the quantitative analysis had been unable to identify.

It thus appears that the applicant’s observations essentially concern the context in which a statement initially identified most often using a bigram and subsequently analysed in qualitative terms arises, in order to come to the conclusion that, in the Commission’s view, that statement is one capable of indicating potential collusion. That line of argument will thus be examined below as part of the assessment of the arguments relating to the arbitrary nature of the contested decision, which is not based on reasonable grounds to justify the suspicions identified.

Furthermore, even assuming, as the applicant claims, that companies in other sectors or other tyre manufacturers might have made statements including bigrams falling into one of the two categories defined by the Commission, this cannot however prevent the Commission from examining in greater detail, as it states that it did in qualitative terms, the tyres sector or those of tyre manufacturers which made the statements identified on completion of its quantitative analysis.

(3)The methodology followed to identify the suspicious statements

In that context, two conclusions vis-à-vis the sufficiently serious nature of the indicia disclosed by the Commission can be reached by examining those indicia and the observations submitted in relation to them.

(i)The sufficiently serious nature of the indicia disclosed

With regard to the applicable law, first of all, it should be recalled that the anticompetitive conduct suspected by the Commission consists in price coordination and, more specifically, ‘coordination between the main tyre manufacturers of the prices (in particular wholesale prices) of new replacement tyres for cars and trucks in the EEA’.

If it is proven, that type of conduct is prohibited by Article 101(1)(a) TFEU, whether it takes the form of an agreement between undertakings or of a concerted practice, if its object or its effect is to ‘directly or indirectly fix purchase or selling prices or any other trading conditions’. Furthermore, under EU law, the common intention expressed by a number of undertakings to fix prices on the market in a decisive manner is regarded by the Commission as one of the most serious infringements of competition.

In addition, in factual terms, it should be observed that, as the Commission rightly set out, certain statements made by the main tyre manufacturers which it investigated in connection with their earnings calls and announcements relating to the price of tyres or the price of raw materials, all of which took place during the main period, constituted reasonable grounds to support the suspicions relating to the coordination suspected during that period.

–The statements submitted by the Commission

It can be stated, on the basis of the examination of the various statements highlighted by the Commission in a number of earnings calls made in the course of a part of one year of the main period, that various tyre manufacturers had publicly announced their respective pricing intentions and strategies.

Thus, in its presentation of the explanations and material elements justifying the contested decision, the Commission stated that, having examined a significant number of transcriptions of earnings calls and of presentations by the main tyre manufacturers in the EEA, including the applicant, it had come to the conclusion that a number of statements made by those manufacturers were suspicious, since the manufacturers made regular public announcements on how their competitors had to determine their prices, on their willingness to act as a price leader or follower on the market and on the way in which they would react to their competitors’ price changes.

To illustrate those claims, the Commission provided two series of earnings calls made during one part of one year of the main period. For each of those earnings calls, the Commission set out the precise content of the statements which appeared to it relevant to substantiating its suspicions. The Commission also explained that it considered that that type of statement did not meet a legal requirement and that, by comparison, the examination of the earnings calls of undertakings operating in other sectors confirmed that the regularity with which the tyre manufacturers made such statements was not consistent with normal practice.

Subsequently, in response to a question from the Court on the temporal scope of the suspected coordination, the Commission disclosed other earnings calls as well as a presentation. Those documents supplemented the earnings calls previously disclosed with the defence covering the other part of the year of the main period considered (see paragraph 111 above). For each of those documents, the Commission set out the precise content of the statements which appeared to it relevant to substantiating its suspicions as regards the year in question.

The Commission refers, in that regard, to statements beginning with the words ‘we want to send a signal’, ‘we have a plan to’, ‘the strategy is to focus on’, ‘we strive to stick to’, ‘we will do our best to’, ‘we are able to’ and ‘[it is] not our intention to go for’, which in its view were used by the tyre manufacturers investigated to announce publicly conduct which had just been adopted or was going to be implemented or even, sometimes, to suggest to competitors that they adopt such conduct.

Given the existence of such statements relating to the main period, the Commission was entitled to suspect that it was at the very least plausible, in terms of what is reasonably conceivable, that those unilateral public statements could have had as their object to send a signal to their main competitors so that the information that they contained relating to the pricing intentions and strategies of the manufacturers concerned were picked up or taken into account.

–The other elements presented by the Commission

As the Commission rightly argues, it was also plausible to consider that the suspicions arising from the statements identified following a qualitative analysis were corroborated by its observations made after its examination of certain announcements on the price of tyres or on the upward or downward trend in raw material and energy prices.

First, the Commission explained that it had examined the price announcements of the main tyre manufacturers over the period concerned and found that the dates of those announcements had often been close to one another. To illustrate those claims, the Commission submitted various communications taken from a specialist website which tracked those announcements, which had occurred at the same time during the main period.

Secondly, on the basis of an analysis of the trend in raw material and energy prices, the Commission pointed to an alignment in the statements of the manufacturers when the raw material and energy prices changed. Thus, the Commission found that the earnings calls of various manufacturers contained similar statements which tended to indicate that tyre prices had to be increased when an increase in raw material and energy prices had occurred. Similarly, the Commission found that, when raw material and energy prices fell, the manufacturers made statements which tended to indicate that a price reduction had to be avoided. To illustrate those claims, the Commission produced two earnings calls made at the beginning of one year in the main period and, for each of them, set out the precise content of the statements which appeared to it relevant to substantiating those findings. The Commission also referred to a presentation made in the context of an earnings call to show the price trend in certain materials, in particular in the course of certain years in the main period. Furthermore, the Commission observed that, due to the COVID-19 pandemic, raw material prices had increased substantially. Against that backdrop, the undertakings’ communications covered the sharp increase in prices, as is shown by two earnings calls made during one year of the main period, for which the Commission set out the precise content of the statements which appeared to it relevant to substantiating that finding.

–The observations submitted by the applicant

The observations submitted by the applicant on the statements set out by the Commission and the other elements upon which it relies do not call the Commission’s assessments into question, since those observations remain too general or are based on the idea that the Commission must have evidence of the suspected infringement (see, to that effect, judgment of 31 March 1993, Ahlström Osakeyhtiö and Others v Commission, C‑89/85, C‑104/85, C‑114/85, C‑116/85, C‑117/85 and C‑125/85 to C‑129/85, EU:C:1993:120, paragraphs 70 and 71 and the case-law cited).

Firstly, to argue that the statements cited by the Commission do not constitute sufficiently serious indicia for the existence of the suspected coordination, the applicant claims that those statements are commonplace and regular statements made in the tyres sector as in other industrial sectors.

However, it must be stated that, even assuming that statements of that kind and as regular as those observed in the earnings calls disclosed can be found in earnings calls of other tyre manufacturers or companies in other sectors, this cannot prevent the Commission from verifying the suspicions arising from the sufficiently serious indicia at its disposal in relation to the tyre manufacturers which it has identified.

Secondly, the applicant states that the extracts of the earnings calls cited by the Commission are all taken from statements made during the part of those earnings calls corresponding to the question and answer sessions. Such statements are therefore not spontaneous but made in response to questions from financial analysts representing commercial banks and not competitors. An undertaking participating in an earnings call and the related question and answer session is expected to present and explain its outlook in the light of the macroeconomic context. Such statements also meet, at least in the case of companies established in France, a legal requirement of transparency, under which any information that has not been made public and which, if it were disclosed, could influence the stock market price of the undertaking concerned must be continuously disclosed to the markets.

In that regard, first, it should be stated that the interpretation of the statements at issue favoured by the Commission does not call into question the undertakings’ right to organised earnings calls as such. In the context of the present case, nor does that interpretation undermine a legal requirement in relation to financial transparency. That interpretation is rather based on the idea that, although undertakings can organise earnings calls and must respect the legal requirements relating to financial disclosure, they cannot however use earnings calls to act in such a way that the Commission suspects may constitute a collusive practice. In that regard, the Commission is entitled to take the view that neither a need to answer analysts’ questions nor a legal obligation in relation to financial transparency authorises the undertakings concerned to agree ‘directly or indirectly to fix purchase or selling prices or any other trading conditions’ within the meaning of Article 101(1)(a) TFEU.

Secondly, as for the question of whether the statements at issue can be explained not by the interpretation favoured by the Commission but by the other interpretations proposed by the applicant, namely the ad hoc need to answer an analyst’s question or the general requirement of transparency in relation to financial disclosure, it must be stated that such a question is premature at that stage of the investigation. In the present case, it is enough to observe that the applicant’s claim that the statements at issue, in particular those which the Commission regards as concerning the way in which competitors had to determine their prices, their way of acting as a price leader or follower or how the manufacturer in question responded to its competitors’ price changes, stems from the need to answer analysts’ questions or satisfies regulatory requirements cannot suffice to call into question the plausibility of the interpretation favoured by the Commission to justify the contested decision (see paragraph 87 above).

Thirdly, the applicant claims that the statements cited by the Commission contain only general information about the competitive environment in the tyres sector, including references to the pressure on prices and the inflationary context, and about its pricing policy, which is linked to its ‘premium positioning’. The first category of information is general and well known. It relates to external factors which are known to analysts who are seeking to determine their consequences for undertakings’ economic performance. The second category simply restates a clear positioning held by the applicant for a number of years. In addition, the statements relating to trends in competitors’ prices are simply a reflection of the economic rationality of any undertaking and a demonstration of normal competition. This also explains the observations inferred by the Commission from the announcements relating to tyre prices and input prices.

It follows that the applicant itself acknowledges that what it puts forward to contest the plausibility of the interpretation favoured by the Commission consists in arguing that there are ‘other credible justifications’ than that used at that stage by the Commission to explain the content of the statements cited by it.

However, in the light of the content of the public statements taken into account (see paragraph 113 above), which, on the basis of the interpretation favoured by the Commission, may indicate coordination on tyre prices, as well as various elements produced to corroborate the suspicions arising from those statements, it was plausible to consider that the suspected coordination might exist and that it was therefore necessary to carry out an investigation.

In that context, the examination of the other credible justifications put forward by the applicant will come at a later stage, if the Commission’s suspicions are proven to be confirmed by the results of its investigations. As such, those other explanations are insufficient to dismiss the plausibility of the interpretation favoured by the Commission.

Fourthly, further to the questions put by the applicant, in particular in the light of the statement of reasons for the contested decision (see paragraph 47 above), it should be recalled that, in response to the first measures of organisation of procedure, the Commission provided clarifications about its interpretation of the information at its disposal as far as concerned the scope of the prices covered by the suspected coordination.

On that point, the Commission stated that its investigation focused on the information relating to the future intentions and pricing strategies disclosed by the main tyre manufacturers inter alia by means of their earnings calls.

In that regard, the Commission stated that it had observed that, in the context of the earnings calls, the main tyre manufacturers often referred to ‘sell-in prices’ or ‘wholesale prices’, the first prices applied in the value chain. They are normally the prices which tyre manufacturers charge when the tyres leave their factory. The Commission also explained that it had noted, in that same context, regular references to sell-out prices, that is to say, the prices charged downstream on the value chain.

To illustrate those claims, the Commission presented two earnings calls by the applicant’s competitors, the first made during the main period and the second before the main period but not connected with the earlier period. It is clear from the statements taken from those earnings calls set out by the Commission that the price, inventory and market share positions are referenced having regard both to the ex-factory and the ex-distributor sales made.

In that context, the Commission explained that it took the view that all the prices charged along the entire value chain were of interest in the context of the inspection ordered to verify its suspicions about the suspected coordination. It observes, in that regard, that the statements made during the earnings calls reflect the directions from the highest level of the relevant manufacturers’ management about their future intentions and their pricing strategies. Those directions may, as such, be repeated along the entire value chain. According to the Commission, those statements concern both directions to increase prices or to keep them at a certain level as well as a strategy focussed on price rather than on competition on volume. For those reasons, the Commission argues that the statements at issue can prove relevant for determining both wholesale and retail prices.

Furthermore, the Commission stated that the main tyre manufacturers in Europe were generally vertically integrated and therefore active both in the manufacture of tyres and the retail tyre market. It is therefore in their interest for price increases at the wholesale market level to be passed on to retail prices downstream in order to secure margin targets along the entire value chain. According to the Commission, it could not therefore be ruled out that the pricing strategies disclosed in the earnings calls at issue had to implemented downstream to achieve the desired outcome.

In that regard, in its observations, the applicant claims that the clarifications provided by the Commission should have appeared in the contested decision. More generally, the applicant also observes, with regard to the sell-in and sell-out prices, that the statements cited by the Commission cannot, by definition, constitute sufficiently serious indicia for various reasons relating, for example, to the fact that the statements at issue refer to firm decisions to change prices, that those statements are general and imprecise or that, in the case of sell-out prices, all retail sales prices for tyres are public information that is easily accessible.

It must be observed however that, by stating that the suspected coordination relates to the ‘coordination of prices (in particular wholesale prices) between the main tyre manufacturers’, the Commission used a form of words reflecting the substance of indicia at its disposal, which are sufficiently serious to substantiate its suspicions regarding a potential collusive practice arising from certain public statements made by the tyre manufacturers concerned by the contested decision in the context of their earnings calls.

137In addition, according to the clarifications provided by the Commission at the stage at which the Courts of the European Union examine the substance of those indicia, which are confirmed by the statement made by the applicant at the hearing that a proportion of its new replacement tyre sales within the EEA are retail sales, it was plausible for the Commission to take the view that its suspicions and the sufficiently serious indica at its disposal covered the entire value chain mentioned during the earnings calls and not just or exclusively the sales made at wholesale prices.

138In that context, the various explanations put forward by the applicant will be examined at a later stage if it emerges that the Commission’s suspicions are confirmed by the results of those investigations. As such, those alternative explanations are insufficient in the present case, at the stage of the judicial review of the contested decision, to dismiss the plausibility of the interpretation favoured by the Commission about the scope of the concept of price mentioned in that decision to justify the inspection.

139In conclusion, it follows from the foregoing that, in the light of the content of the various public statements disclosed as well as various elements produced to corroborate the suspicions arising from those statements, the interpretation favoured by the Commission that those indicia taken together supported the view that it was plausible that the main tyre manufacturers concerned by the contested decision coordinated their new replacement tyre prices for cars and trucks within the EEA during the main period is well founded, it being impossible to rule out that any such coordination began earlier and that it was still ongoing at the time of the inspection.

140In those circumstances, the complaint alleging that the contested decision is arbitrary on the ground that the suspicions corresponding to the main period, within the meaning defined in the first sentence of recital 4, are not substantiated by sufficiently serious indicia must be rejected as unfounded.

(ii) The lack of sufficiently serious indicia to substantiate the suspicions relating to price coordination during the earlier period

141With regard to the earlier period and further to a question put by the Court about the temporal scope of the suspected coordination, it must be observed that the Commission acknowledges, as it confirmed at the hearing, that it has not provided the Court with indicia contemporary with that period.

142That element is relevant to the assessment since, as the applicant notes, it is apparent from the explanations provided by the Commission that the search period used for the quantitative analysis of the hundreds of thousands of earnings calls obtained by that institution is long enough to encompass both the main period and the earlier period (see paragraphs 95 to 98 above).

143Thus, it must be observed that, while the Commission was able to identify certain earnings calls relating to the main period based on the two categories of bigrams which it had defined and the qualitative analysis that it conducted subsequently, it did not state that it was able to identify such earnings calls in relation to the earlier period. In view of the number and the diversity of the bigrams used for the quantitative analysis, the view may be taken that, if there had been relevant earnings calls pertaining to the earlier period, they would have been identified in the same way as those related to the main period. However, the Commission did not provide the Court with any explanation or any corresponding documentation in that regard, even though it had been asked to submit, in the form which it deemed appropriate to demonstrate the sufficiently serious nature of the indicia at its disposal, the various elements to which it referred in the second sentence of recital 4 of the contested decision, which mentions the earlier period.

144In those circumstances, the Court must take into consideration the fact that the Commission was unable to submit to it, as it was able to do in relation to the main period, public statements from the main tyre manufacturers made in the course of earnings calls which took place during the earlier period.

145Furthermore, as regards the indicia corresponding to the suspicions set out in the contested decision in relation to the earlier period, the Commission argues that its attention had been drawn to that period by a number of earnings calls made after that period.

146According to what the Commission stated in that regard, those earnings calls postdating the earlier period referred to that period in the context of comments made by the main tyre manufacturers mentioned in the contested decision in relation to the impact of the raw material price rises.

147For instance, the Commission referred to a public statement made by a competitor in the context of an earnings call, which occurred during the main period, which refers to a ‘cycle [corresponding to the earlier period]’. According to that statement, the lost profits associated with the increase in the costs of raw materials were fully recovered in the year which had followed that cycle.

148Other earnings calls disclosed by the Commission likewise referred to the earlier period. Three of those earnings calls took place in the course of earlier years close to the main period, and four of them together with one presentation were made in the course of the main period. According to the content of those statements, as set out by the Commission, the main tyre manufacturers concerned equated the situation prevailing at that time with the situation which it had experienced, each in its own regard, at a time when the market had witnessed significant increases for raw materials.

149According to the Commission, those references may be an indication of coordination during the earlier period, a fact which the applicant contests in its observations on that point.

150In that regard, it should be stated that the statements to which the Commission referred as proof of the existence of seriously sufficient indicia to establish the suspicions of coordination mentioned in the contested decision in relation to the earlier period are not of the same kind as those examined in connection with the main period. That finding was confirmed by the Commission at the hearing.

151Even though the coordination suspected by the Commission is based on the idea that the main tyre manufacturers were providing each other with information about their respective future pricing intentions and strategies and that the indicia disclosed relating to the main period covered public statements that may be taken into account to establish such coordination, the various statements submitted regarding the earlier period did not mention respective future intentions or pricing strategies that might be implemented over that period.

152It is apparent from those statements, for example from the oldest one cited by the Commission, that the manufacturer in question is reminding the addressees of that statement that this is not the first time that the price of raw materials has risen and that, in the past, it had been able to pass on that increase. The coordination that a public statement on passing on an increase would likely involve, based on the interpretation favoured by the Commission, would however apply only to the future. In the present case, the Commission does not provide grounds for the view that, during the earlier period, when the price of raw materials also rose significantly, the main tyre manufacturers acted in coordination in a manner similar to that documented subsequently in relation to the main period or in a way other than that in which they were supposed to have acted during that main period.

153Moreover, the Commission has not provided the Court with the slightest evidence for another type of coordination to be considered than that suspected in the present case.

154In conclusion, it follows from the foregoing that, firstly, given the lack of relevant evidence contemporary with the earlier period, even though that period had been covered by the search period used by the Commission for its quantitative analysis (see paragraph 95 above), and, secondly, in the light of the lack of other relevant elements capable of establishing the existence of any coordination during the earlier period, the interpretation favoured by the Commission to the effect that it was plausible that the main tyre manufacturers concerned by the contested decision coordinated their prices for new replacement tyres for cars and trucks within the EEA over the earlier period is not sufficiently established.

155In those circumstances, the complaint based on the arbitrary nature of the contested decision, on the ground that the suspicions corresponding to the earlier period, within the meaning defined in the second sentence of recital 4, are not substantiated by sufficiently serious indicia, must be regarded as well founded. The contested decision must therefore be annulled in part in that respect.

4.The second part, based on the disproportionality of the contested decision

156The applicant claims that the contested decision does not respect the principle of proportionality for the following reasons: the lack of risk in respect of the evidence, the excessive impediment to the undertaking’s proper functioning, the excessive publicity given to the decisions ordering an inspection and the possible recourse to a less onerous measure, namely a request for information.

157The Commission disputes the applicant’s arguments.

158In the first place, as regards the risk in respect of the evidence, it should be recalled, as the Commission points out, that the purpose of the contested decision was to enable it to gather the information needed to investigate the existence of the suspected coordination.

159In that regard, the fact that the Commission had gathered sufficiently serious indicia to justify an inspection cannot have the effect of preventing it from obtaining supplementary information or from examining the information in its possession in the course of an inspection.

160Similarly, the fact that those indicia are essentially based on the content of certain public statements made by the tyre manufacturers mentioned in the contested decision in the course of their earnings calls cannot prevent the Commission from examining the relevant documents or questioning those involved in order to obtain the information needed to supplement or investigate its suspicions.

161In that regard, the Commission cannot be criticised for having sought to gather such information from a limited group of people who, within the undertaking concerned, might hold the evidence that could better define the object and functioning of, and the reasons for, the suspected coordination. The Commission is right to state in that regard that it was relevant for it to obtain the information relating to the internal discussions on the preparation and the follow-up of the earnings calls and the preparation of the pricing decisions regarding the price coordination between tyre manufacturers described in that decision.

162In such a situation, the Commission could not rule out the possibility that, without an unannounced inspection, there was a risk that certain relevant information might be compromised or destroyed. Furthermore, recital 8 of the contested decision refers to such a risk in respect of the evidence relating to ‘information concerning the suspicions of future coordinated conduct on the markets in relation to the prices (in particular the wholesale prices) of the goods concerned as well as the suspicions about the manufacturers’ choice to inform competitors of future pricing policies by public means’.

163Therefore, in the light both of the statement of reasons for the contested decision regarding the content of the suspected coordination and of the sufficiently serious indicia corroborating those suspicions, the Commission could not rule out the existence of a risk of the evidence sought being concealed or destroyed, and recourse therefore had to be had to a decision ordering an inspection to take that risk into account.

164In the second place, as for the possible recourse to a request for information instead of a decision ordering an inspection, the view must be taken that such a request would not have allowed all the information and the evidence necessary to the investigation to be gathered.

165In the present case, and as is apparent from the contested decision, the Commission took the view that a decision ordering an inspection was necessary to examine all the facts relating to the suspected coordination, the context in which it occurred and the identity of the undertakings in question, in order to prevent the relevant information from being compromised or destroyed, which could be the case if it were collected by means of a request for information or an inspection announced in advance, and to guarantee the effectiveness of the inspection by enabling it to be carried out simultaneously at all the suspected undertakings’ premises without them having been pre-warned.

166In addition, as the Commission observes, there is a significant difference between the amount of a fine incurred for infringement of Article 101(1) TFEU and the amount of a fine incurred for having failed to respond to a request for information. Given that difference, it cannot be ruled out that an undertaking to which a request for information is addressed may be tempted not to comply with that request, even if it means being penalised for failing to do so, if this may enable it to avoid being penalised for infringement of Article 101(1) TFEU.

167The choice of the instrument used to gather the information relevant to the investigation, whether an inspection ordered by a decision in accordance with Article 20(4) of Regulation No 1/2003 or a request for information adopted on the basis of Article 18 of that regulation, thus depends on an analysis carried out by the Commission, taking account of the circumstances specific to the ongoing investigation. The mere fact that the Commission may have issued requests for information in other cases, to which the applicant refers, cannot be sufficient in that regard to call into question the legality of the choice made in the present case for the reasons set out in the contested decision.

168It follows from the foregoing that the applicant’s arguments that the contested decision was not necessary as there was no risk to the evidence or that recourse could have been had to a less onerous measure must be rejected as unfounded.

(b) The complaints based on the harmful consequences of the contested decision

174The applicant claims that the contested decision had harmful consequences, first, for its proper functioning during the course of the inspection and, secondly, for its economic performance following the publicity given to that inspection. In that context, in view of the such excessive consequences of the contested decision, that decision cannot be regarded as compatible with the principle of proportionality.

175The Commission disputes the applicant’s arguments.

176In the first place, as to the excessive disruptions to the proper functioning of an undertaking which is ordered to submit to an inspection, it must be stated that the applicant’s line of argument in that regard is lacking.

177First of all, it should be borne in mind that, by definition, inspections prove necessary when the Commission has suspicions about the existence of an infringement of the competition rules laid down in the FEU Treaty. Such interference by the public authorities with an undertaking’s right to respect for its premises and its communications thus remains proportionate when it comes within the limits justified by the subject matter defined in the inspection decision. This means that implementing such a decision entails necessary and inherent disturbances to the proper functioning of an undertaking of which the applicant must be aware.

178In addition, in the present case, in view of the sufficiently serious indicia in the Commission’s possession, the contested decision must not be regarded as capable, as such, of giving rising to a disproportionate impediment to the applicant’s proper functioning.

179Furthermore, it should be observed that the explanations provided by the Commission appear, in any event, capable of establishing that the disturbances caused by the choice to order an inspection are not disproportionate and intolerable having regard to the stated aims of the inspection in question.

The Commission thus effectively argued, without being contradicted by the applicant, that the inspection was conducted with as little intrusion as possible. In particular, the Commission states that it seized the work equipment of just four individuals and returned that equipment after a short period of time. Those individuals’ mobile telephones were returned in close to (and generally less than) 24 hours and, in order to enable them to continue their work using their normal telephone numbers, the Commission returned some SIM cards before the mobile telephones were returned. As for the laptops seized, one of the four individuals recovered his laptop on the same day and the other laptops were returned within a period of 48 hours. Since all data is stored on the applicant’s servers, the fact that those individuals did not have access to their laptops for that short period did not prevent them from working by using other means. In addition, while extracting the data stored on electronic media took longer than was usually the case, this was because of the security system implemented by the applicant, which made the extraction difficult. In any case, the applicant could not claim that its functioning was disturbed because two employees in its IT department had to help the Commission with that task.

181The applicant’s argument relating to the alleged harmful consequences relating to its proper functioning must therefore be rejected as unfounded.

182In the second place, as for the harmful consequences for an undertaking’s performance resulting from the excessive publicity given to the inspection ordered by the Commission, it should be stated at the outset that such a line of argument is concerned more with a question of compensation for harm suffered than with litigation specific to the legality of a measure.

183In that regard, it must be stated that, according to very line of argument put forward by the applicant, the publicity given to the inspection by the Commission is given by a measure separate from the contested decision. The measure in question here is press release IP/24/561, entitled ‘Commission carries out unannounced antitrust inspections in the tyres sector’, published on the Commission’s website on 30 January 2024, at a time corresponding to the start of the inspection conducted at the applicant’s premises (‘the press release’).

184However, first, the press release is not contested as such in the present case.

185Secondly, and in any event, as the Commission argues, it can be observed that the publication of a press release is in line with the Commission’s standard practice. It may also be noted that that press release did not name the applicant, rather it simply referred to the tyres sector within the European Union.

186In the present case, the press release explained that ‘the Commission [was] concerned that price coordination [had taken] place amongst the inspected companies, including via public communications’.

187The press release also stated that a conclusion as to the guilt of the undertakings concerned should not be inferred from it, since ‘unannounced inspections are a preliminary investigatory step into suspected anticompetitive practices’ and the fact that such inspections are carried out ‘does not mean that the companies are guilty of anti-competitive behaviour, nor does it prejudge the outcome of the investigation itself’.

188In those circumstances, the effects described by the applicant cannot reasonably be relied upon to establish the disproportionate nature of the contested decision in the present case.

189The applicant’s argument relating to the alleged harmful consequences relating to its performance following the Commission’s publication of the press release must be rejected as ineffective.

190It follows from the foregoing that the applicant has not established how the inspection decision was disproportionate. The second part of the second plea in law must therefore be rejected.

5.Conclusion

191It follows from the foregoing that, in the absence of sufficiently serious indicia to substantiate the suspicions referred to in the second sentence of recital 4, the contested decision must be annulled in part in that regard on account of its arbitrary nature and of the infringement of the applicant’s right to respect for its home and its communications.

192The action is dismissed as to the remainder.

IV.Costs

193Under Article 134(3) of the Rules of Procedure of the General Court, where each party succeeds on some and fails on other heads, the parties are to bear their own costs. However, if it appears justified in the circumstances of the case, the General Court may order that one party, in addition to bearing its own costs, pay a proportion of the costs of the other party.

194In the present case, in so far as the contested decision must be annulled in part, the Court considers that it is appropriate to order each party to bear its own costs.

On those grounds,

hereby:

1.Annuls Commission Decision C(2024) 243 of 10 January 2024 ordering Compagnie générale des établissements Michelin, and all companies directly or indirectly controlled by it, to submit to an inspection in accordance with Article 20(4) of Council Regulation (EC) No 1/2003 (Case AT.40863 – Hoops), in so far as that decision concerns the period referred to in the second sentence of recital 4;

2.Dismisses the action as to the remainder;

3.Orders Compagnie générale des établissements Michelin and the European Commission to bear their own costs.

Marcoulli

Tomljenović

Spangsberg Grønfeldt

Delivered in open court in Luxembourg on 9 July 2025.

[Signatures]

Contents

I.Background to the dispute

II.Forms of order sought

III.Law

A.The first plea, alleging an inadequate statement of reasons

1.Preliminary observations

2.The complaint based on a succinct or generic statement of reasons

3.The complaint based on a vague, ambiguous, imprecise or broad statement of reasons and its consequences for understanding what is alleged

B.The second plea, alleging infringement of the right to respect for the applicant’s home and communications

1.Preliminary observations

2.The similarity between an example mentioned in the 2023 Guidelines and the suspected coordination

3.The first part, alleging that the contested decision is arbitrary

(a)No need to disclose all the information at the Commission’s disposal in the contested decision

(b)The reasonable nature of the grounds put forward by the Commission to justify the contested decision

(1)Preliminary observations

(2)The methodology followed to identify the suspicious statements

(3)The sufficiently serious nature of the indicia disclosed

(i)The presence of sufficiently serious indicia to substantiate the suspicions relating to price coordination during the main period

–The statements submitted by the Commission

–The other elements presented by the Commission

–The observations submitted by the applicant

(ii)The lack of sufficiently serious indicia to substantiate the suspicions relating to price coordination during the earlier period

4.The second part, based on the disproportionality of the contested decision

(a)The complaints alleging that there was no need for the contested decision

(b)The complaints based on the harmful consequences of the contested decision

5.Conclusion

IV.Costs