Action brought on 23 November 2023 – Vivendi v Commission

(Case T-1097/23)

Language of the case: French

Parties

Applicant: Vivendi SE (Paris, France) (represented by: P. Gassenbach, P. Wilhelm, E. Dumur, O. Thomas, S. Schrameck, F. de Bure and Y. Boubacir, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

before ruling, order the Commission, pursuant to Articles 89 and 90 of the Rules of Procedure of the General Court, to produce all of the documents and other information on the basis of which, on the date of Commission Decision C(2023) 6428 final of 19 September 2023, it considered that it had sufficiently strong evidence to justify sending a request for information to the applicant;

declare inapplicable to the present case, on the basis of Article 277 TFEU, Article 11(3) of Regulation 139/2004 on the grounds of infringement of Article 10 of the European Convention on Human Rights and Fundamental Freedoms (‘ECHR’) and of the protection afforded to journalists’ sources by failing to provide for an ex ante legal remedy to ensure the effectiveness of that protection and, consequently, annul the decision;

annul, on the basis of Article 263 TFEU, Commission Decision C(2023) 6428 final of 19 September 2023 as amended by Commission Decision C(2023) 7463 final of 27 October 2023;

order the Commission to pay the costs in their entirety.

Pleas in law and main arguments

In support of the action, the applicant relies on seven pleas in law.

First plea in law, alleging that the contested decision relied on an incorrect legal basis, Article 11(3) of Regulation 139/2004, and constitutes a misuse of power.

Second plea in law, alleging breach of the duty to state reasons, in that the contested decision is based on incomplete and, in any event, incorrect reasons.

Third plea in law, alleging infringement of the right to protection against arbitrary and disproportionate intervention by public authorities and infringement of the fundamental right to the inviolability of the home, in that the contested decision was adopted without the Commission having sufficiently strong evidence.

Fourth plea in law, alleging infringement of the principle of impossibilium nulla obligatio est and of the principle of the prohibition on the misuse of powers, in that the contested decision required Vivendi SE to gather and to disclose to the Commission information belonging to the Bolloré Group, one of its shareholders over which it exercises no control that could compel that group to hand over documents belonging to it.

Fifth plea in law, alleging that the decision is inconsistent with the principle of proportionality, in that it imposes on Vivendi, first, the submission of documents with no connection to the purpose of the investigation and, second, an excessive burden in the light of the requirements of that investigation.

Sixth plea in law, alleging that the contested decision is unlawful in so far as it undermines the protection afforded to journalists’ sources under Article 10 ECHR, because:

the decision is based on Article 11(3) of Regulation 139/2004, a provision which is unlawful and inapplicable in the present case, in accordance with Article 277 TFEU, in that it does not provide for any effective ex ante legal remedy to ensure effective protection of journalists’ sources;

in any event, the decision fails to have regard to the protection to be afforded to journalists’ sources by requiring the submission of a significant number of documents revealing the sources used by journalists concerned by the contested decision.

Seventh plea in law, alleging that the decision lacks any guarantee of such a nature as to protect the privacy of the persons concerned by the order made by the decision and specifically undermines it by requiring the submission, to the European Commission, of documents which enjoy such protection.

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