The Fundamental Importance of Gathering Sufficient Evidence to Carry out Competition Dawn Raids – Part II

Article 20 of Regulation N°1/2003 enables the European Commission ("Commission") to inspect undertakings when it suspects potential infringements of competition rules might have occurred. These unannounced inspections (called "dawn raids") have grown longer and more complex and are now carried out with the use of very sophisticated tools including forensic IT technology and the involvement of data experts. As such, inspections are a very powerful weapon for the Commission to uncover evidence, but put at risk a number of rights of companies and individuals such as the right to privacy.

In 2023, in the French Supermarkets case, the Court of Justice of the EU completely annulled an inspection decision ordered because the Commission had not gathered sufficient evidence to justify ordering such an intrusive measure¹. In that case, the Commission had only collected internal notes summarizing interviews with suppliers. The French Supermarkets judgment led to the complete closure of the case after seven years of investigation and it was questioned whether the Commission’s ability to investigate was affected in a context where the number of leniency applications is reducing and the Commission therefore has to start so-called ex-officio or own initiative investigations, without evidentiary elements voluntarily brought forward by the companies involved.

Since French Supermarkets, several companies subject to ex-officio investigations have appealed their inspection decision, similarly questioning whether the grounds for suspicion were sufficient. This was inter alia the case of Symrise, a company inspected in 2023 in the Commission’s fragrances investigation. During the procedure, Symrise was given access to the evidence gathered by the Commission prior to ordering the inspection which largely consisted of information collected from several requests for information and an open source intelligence report.

In its judgment dated 30 April 2025 (Case T-263/23), the General Court of the EU rejected Symrise’s appeal, ruling that, with the information gathered in this case, the Commission did have reasonable grounds for suspecting the alleged infringement detailed in the inspection decision. As such, the Symrise judgment confirms that the Commission’s power to order inspections in ex-officio cases is not altered by the requirement to obtain sufficient elements before considering such an intrusive measure.

In the light of this ruling, the Commission is expected to continue to run inspections in ex-officio investigations while companies subject to a competition inspection should not rely too strongly on the possibility of bringing a successful challenge to the inspections ordered in such a context. 

The Antitrust team at Mayer Brown can assist with all aspects of competition inspections and resulting liaison with competition authorities around the world. For an in-depth analysis of the legal and practical aspects of competition inspections under EU law, please see this practical guide published with Concurrences by Nathalie Jalabert-Doury, a partner in the Paris and Brussels offices who is widely recognised as a leading expert in this field.