Judgment;Abstract — ECLI:EU:T:2025:686
Date: 2025-07-09
Language of the case: French
Court formation: Second Chamber
Procedure: Action for annulment - unfounded;Action for annulment - successful
Origin: France

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. 73 Such balance is referred to on several occasions in the case-law. 74 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). 75 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). 76 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. 77 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 78 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). 79 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). 80 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. 81 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. 82 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’. 83 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. 84 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. 85 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. 86 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. 87 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). 88 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. 89 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). 90 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 91 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. 92 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. 93 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. 94 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’. 95 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. 96 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. 97 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. 98 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. 99 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. 100 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. 101 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. 102 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. 103 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. 104 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 sufficiently serious nature of the indicia disclosed 105 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 presence of sufficiently serious indicia to substantiate the suspicions relating to price coordination during the main period 106 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’. 107 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. 108 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 109 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. 110 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. 111 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. 112 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. 113 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. 114 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 115 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. 116 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. 117 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 118 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) and not just, at that stage, reasonable grounds for suspicions. 119 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. 120 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. 121 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. 122 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. 123 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). 124 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. 125 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. 126 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. 127 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. 128 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. 129 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. 130 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. 131 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. 132 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. 133 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. 134 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. 135 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. 136 In 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. 137 In 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. 138 In 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. 139 In 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 140 With 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. 141 That 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). 142 Thus, 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. 143 In 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. 144 Furthermore, 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. 145 According 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. 146 For 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. 147 Other 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. 148 According 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. 149 In 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. 150 Even 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. 151 It 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. 152 Moreover, 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. 153 In 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. 154 In 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 155 The 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. 156 As a preliminary point, it should be borne in mind that the principle of proportionality, which is among the general principles of EU law, requires measures adopted by the EU institutions not to exceed the limits of what is appropriate and necessary in order for the desired objective to be attained. However, when there is a choice between several appropriate measures, recourse must be had to the least onerous one, and the disadvantages caused must not be disproportionate to the aims pursued (see judgment of 25 November 2014, Orange v Commission, T‑402/13, EU:T:2014:991, paragraph 22 and the case-law cited). 157 In the case of a decision ordering an inspection, observance of the principle of proportionality presupposes that the intended measure does not constitute, in relation to the aim pursued, a disproportionate and intolerable interference. Specifically, the Commission’s choice between a request for information and an inspection ordered by a decision does not depend on matters such as the particular seriousness of the situation, extreme urgency or the need of absolute discretion, but rather on the need of an appropriate inquiry, having regard to the special features of the case. Therefore, where a decision ordering an inspection is intended solely to enable the Commission to gather the information needed to assess whether the Treaty has been infringed, such a decision is not contrary to the principle of proportionality (see, to that effect, judgment of 25 November 2014, Orange v Commission, T‑402/13, EU:T:2014:991, paragraph 23 and the case-law cited). 158 It is, in principle, for the Commission to decide whether a particular item of information is necessary in order to enable it to bring to light an infringement of the competition rules and even if it already has some indicia, or indeed proof, of the existence of an infringement, the Commission may legitimately take the view that it is necessary to order further investigations enabling it better to define the scope of the infringement or to determine its duration (see judgment of 25 November 2014, Orange v Commission, T‑402/13, EU:T:2014:991, paragraph 24 and the case-law cited). 159 In the present case, the applicant’s arguments in support of the infringement of the principle of proportionality can be divided into two categories, according to whether they criticise the necessity of the contested decision, which presupposes the absence of another less onerous option, or they criticise the excessive consequences of a decision ordering an inspection on its functioning and its performance, which, as a result, demonstrates that recourse to a less onerous measure would have been preferable. (a) The complaints alleging that there was no need for the contested decision 160 The applicant claims, first, that there was no risk of the evidence mentioned in the contested decision being concealed or destroyed, since the information sought was already known to the Commission or could easily be known to it and, secondly, that there was a less onerous option than the adoption of such a decision, namely, in the present case, a request for information submitted pursuant to Article 18 of Regulation No 1/2003, which penalises the failure to respond or an incomplete response with a fine of up to 1 % of the total turnover in the preceding business year, meaning that that provision, which is used in other cases of the same kind, is greatly effective. 161 The Commission disputes the applicant’s arguments. 162 In 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. 163 In 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. 164 Similarly, 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. 165 In 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. 166 In 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’. 167 Therefore, 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. 168 In 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. 169 In 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. 170 In 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. 171 The 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. 172 It 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 173 The 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. 174 The Commission disputes the applicant’s arguments. 175 In 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. 176 First 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. 177 In 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. 178 Furthermore, 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. 179 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. 180 The applicant’s argument relating to the alleged harmful consequences relating to its proper functioning must therefore be rejected as unfounded. 181 In 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. 182 In 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’). 183 However, first, the press release is not contested as such in the present case. 184 Secondly, 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. 185 In 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’. 186 The 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’. 187 In 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. 188 The 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. 189 It 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 190 It 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. 191 The action is dismissed as to the remainder. IV. Costs 192 Under 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. 193 In 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, THE GENERAL COURT (Second Chamber) 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 * Language of the case: French.