Dawn Raid Powers before the Courts

In a line of recent cases the General Court has examined the limits on the powers of the European Commission to carry out dawn raids on businesses suspected of breaching competition law. Although a developed area of law, the rules around dawn raids received renewed attention following the General Court’s judgment in Michelin (Case T 263/23). The Court’s judgment in Michelin resulted in the partial annulment of a Commission inspection decision. This small victory prompted questions about the evidentiary and procedural standards the Commission must meet to lawfully conduct unannounced inspections. A further judgment from the General Court in Red Bull (Case T 306/23) reasserts the scope afforded to the Commission during the early investigative stage as it attempts to establish the existence of evidence to support its case into suspected infringements. 

The scope of the Commission’s discretion 

The Commission has a considerable margin of discretion to authorise an unannounced inspection where it has reasonable grounds to suspect an infringement of competition rules. The Commission’s discretion is clearly established under the legal framework provided by Regulation 1/2003 and the way the wording of those provisions has been interpreted in the case law of the European courts. 

On the other hand, the Commission cannot treat a dawn raid as a “fishing expedition” during which it hopes to unearth evidence to make a case against the dawn raided company for some unspecified breach of competition law. The Commission will need sufficiently serious indicia of an infringement: to indicate as precisely as possible the evidence sought and the matters to which the investigation must relate.

The decision of the General Court in Michelin was a reminder that the Commission’s discretion is not without limits. The Commission had conducted dawn raids on Michelin and other tyre companies on suspicion of anti-competitive price coordination in the market for the supply of tyres for passenger cars and trucks in the EEA. Michelin challenged the legal basis for the dawn raids on several grounds, including an argument that the Commission did not have sufficient evidence to justify the inspection. The argument was partly successful. The General Court found that the Commission’s decision clearly identified the suspected conduct, the markets concerned and the issues to be verified. However, the evidence the Commission had relied upon to form its presumption was not “contemporaneous to” the early period of the suspected infringement. As a result, the General Court annulled the Commission’s decision in so far as it related to this earlier period.

This was a narrow victory for the applicant. In its later decision in Red Bull, the General Court reiterated the traditional evidentiary standard required of the Commission to launch a lawful, unannounced inspection. The Commission needed to set out the basis for the dawn raid in terms that were not “excessively succinct, vague and generic” and which would allow the target of the inspection “to perceive the reasons for [the inspection] without excessive efforts of interpretation” (see also HeidelbergCement, C-247/14 P). 

Red Bull was raided on suspicion of using financial incentives to retailers to restrict the sale of competing products and on suspicion that it had ran a smear campaign against a competitor. Upon considering the first allegation, the General Court found that it was “not inconceivable” that such a practice may have as its object or effect the distortion of competition within the internal market. Similarly, in connection with the alleged smear campaign, the General Court concluded that it “cannot be ruled out” that this practice “may” amount to an abuse by Red Bull of its “potential” dominant position in the market. The inspection was triggered by a complaint from Red Bull’s competitor, Monster Energy, and the Commission had primarily relied on evidence provided to it by that competitor. This did not weaken the reliability of the evidence because, in the General Court’s view, Monster Energy was “very well informed of the functioning of the relevant sector”. 

 Was the dawn raid disproportionate?

Counsel for Red Bull made the argument before the General Court that the Commission’s decision was a disproportionate intrusion into the affairs of the company and its employees. According to the principle of proportionality, the Commission could not exceed the limits of what was appropriate and necessary to achieve the objectives of the inspection. This led the General Court to consider what alternative means were available to the Commission. In its judgment it concluded that Red Bull would not have voluntarily produced potentially incriminating evidence to the Commission. Moreover, the Commission’s powers of investigation would be pointless if it were to confine itself to requesting the production of documents which it would be able to identify precisely beforehand. As a result it concluded that an unannounced inspection was the least onerous, proportionate measure that the Commission could adopt.

The issue of proportionality and the role it plays in the seizure of documents during a dawn raid is currently before the Court of Justice of the European Union (IMI, C-258/23). An opinion of Advocate General Medina in IMI, delivered on 23 October 2025, draws an interesting distinction between the collection of business emails, which may contain personal data, and the seizure of a mobile phone which will contain a vast amount of personal data. Confiscating a personal phone is, in the view of AG Medina, an interference in a fundamental right protected by Article 8 of the Charter of Fundamental Rights and it must be considered to be serious, “or even particularly serious”. The nature and sensitivity of the data is then relevant to the proportionality assessment as to whether the limitation on the fundamental right to privacy is justified by the aim of enforcing competition rules. 

The procedural questions before the European Courts in Michelin, Red Bull, and IMI are being decided against the backdrop of the European Commission’s intention to revise Regulation 1/2003 (i.e., the legal basis for unannounced inspections). Multinational companies now operate with staff working across multiple locations in different countries, including outside the EU, owing to the possibilities offered by cloud computing. This may ultimately lead the Commission to adapt existing inspection powers so that they can be used independent of the power to enter physical premises, and regardless of the storage location of the data. As the Commission resolves these procedural changes, more concrete findings by the European Courts will mitigate the uncertainty around the evidentiary threshold for dawn raids and clarify the boundaries of the Commission’s investigative powers. 

For further information in relation to this topic, please contact Damien Ryan, Senior Associate, or any member of the EU, Competition & Procurement team.