Case ‘highlights shift in EU competition probes’
Lawyers at Mason Hayes & Curran (MHC) say that a recent EU court case has highlighted a shift in the European Commission’s approach to competition-law investigations.
The business-law firm says that, historically, most of the commission’s inspection decisions have relied on evidence provided by whistleblowers.
In a note on the firm’s website, MHC lawyers point out that the EU body is now adopting a “more proactive approach” to detecting anti-competitive behaviour – including a growing use of quantitative analysis of large datasets.
Dawn raid
The lawyers were considering a recent judgment by the EU’s General Court in a case taken by tyre company Michelin, which had sought an annulment of a commission decision to carry out a dawn raid (unannounced inspection) in 2024.
The commission’s decision was based on suspected anti-competitive conduct arising from market monitoring, which involved the analysis of hundreds of thousands of earnings calls in different sectors.
The EU body alleged that tyre companies had co-ordinated pricing strategies through public statements that communicated future intentions and strategies for tariffs.
‘Earlier period’
The problematic public statements were identified in earnings calls that took place during a ‘main period’. The commission, however, considered that the behaviour may have started in an ‘earlier period’, and the inspection covered both periods.
Michelin argued that the dawn raid was based on insufficient reasoning and was “arbitrary and disproportionate”.
The MHC lawyers note that, while the EU court rejected most of Michelin’s arguments, it agreed that the commission did not present “sufficiently serious evidence” to support suspicions of price co-ordination during the ‘earlier period’.
As a result, the commission’s analysis of mass data could not justify extending the inspection to cover the earlier period.
‘Vast troves of data’
The MHC lawyers say that companies should be aware that the European Commission is moving away from its traditional practice of relying on leniency applications from whistleblowers.
“Instead, it is now investing significant resources to detect collusion in other ways – including by parsing vast troves of data.
“We are also aware that the detection of algorithmic pricing collusion is an enforcement priority for the European Commission, and is another area where the European Commission is likely to deploy data analytics to mass data,” MHC adds.
Its lawyers highlight that the public statements that prompted the commission’s inspection decision were not part of scripted investor presentations, but emerged during unscripted question-and-answer sessions.
“This highlights the limitations of relying solely on prepared remarks to manage legal risk. Everyone involved in drafting or delivering public communications, especially for earnings calls, should be thoroughly briefed on the company’s competition-law obligations,” the lawyers conclude.