Table of Contents
- EU Court Confirms EC Power to Review Personal Devices
- UK CMA Approves Acquisition on Basis That Buyer Is a Failing Firm
- Rare Interim Measures Imposed on Meta for Access to WhatsApp
- UK Day Traders Settle Information Exchange Investigation
EU Court Confirms EC Power to Review Personal Devices
On 3 June 2026, the EU General Court (GC) handed down an important judgment on the scope of the European Commission’s (EC) document gathering powers during merger control investigations. The ruling is also relevant to investigations by the EC under its general EU competition law powers and will influence the position in other jurisdictions.
The case arose from an investigation by the EC into media conglomerate Vivendi’s alleged partial implementation of its acquisition of Lagardère prior to the EC’s clearance of the transaction under the EU Merger Regulation (known as “gun-jumping”). The EC identified possible interference by Vivendi in the editorial and human resources decisions as well as the radio programming of its target.
During its investigation, the EC issued formal requests for information (RFI) to the companies. In accordance with normal practice, the RFIs were wide-ranging, including the requirement to produce relevant emails, instant messages and other electronic documents from the devices of employees and journalists. This included devices that had been used at least once for professional communications.
The EC put in place an encrypted virtual data room separate from the EC’s normal case file to protect documents containing sensitive personal data or journalists’ sources. The parties nevertheless appealed the RFIs.
The companies based one of their appeal grounds on privacy protection under human rights law, which they argued limited the EC’s ability to obtain material from personal devices and accounts. The GC found the EC’s approach was proportionate and justified. It concluded the RFIs’ inclusion of personal devices that had been used for professional purposes at least once was proportionate, as any other threshold would risk relevant documents escaping disclosure. The GC also noted the limited scope of the custodian list and the use of search terms to limit the review.
The parties also argued protection of freedom of expression under human rights law limited the EC’s ability to obtain information that would put journalists’ sources at risk of disclosure. The GC disagreed with that argument, holding that the virtual data room provided adequate protection.
Vivendi stated it will appeal the judgment to the European Court of Justice.
The judgment confirms case law finding that the EC has broad investigative powers across its areas of competition law work. Various practical issues are highlighted by the case, including that personal devices can and will be reviewed, with complete message threads in scope even if they contain personal exchanges. Best practice is to require individuals to have a separate device for personal use. When a party receives an RFI, it should carefully consider the scope of the request and, as necessary, challenge it with the EC. It should also seek to negotiate suitable practical protections for sensitive documents at the outset.
UK CMA Approves Acquisition on Basis That Buyer Is a Failing Firm
When investigating an acquisition, the UK Competition and Markets Authority (CMA) compares the transaction’s effects with the counterfactual, what would likely happen if the transaction did not occur. One type of counterfactual is known as the “exiting firm” scenario.
Under this scenario, the CMA considers whether, absent the transaction, one of the companies, usually the target, is likely to exit the market. The parties are required to demonstrate this likelihood of exit through failure or otherwise — usually when the company is failing financially — and, if so, that there would not have been an alternative, less anti-competitive transaction.
The exiting firm scenario is difficult to prove and rarely successful, particularly when companies argue that the buyer is the party that would exit. However, the CMA’s approval on 16 June 2026 of the acquisition by Associated British Foods (ABF) of Hovis is a rare example of it accepting the buyer as the exiting firm.
ABF, via its Allied Bakeries (AB) unit, and Hovis are directly competing UK bread suppliers, and their merger would normally raise material substantive concerns. However, the CMA found that AB had significant losses over the last 14 years, despite exploring a range of options to improve performance. Along with other suppliers, it faced an overall decline in demand for bread, an increase in demand for lower-margin private-label products and significant increases in costs, such as energy, wheat and distribution.
The CMA accepted that if the merger did not go ahead, the most likely outcome would be that AB would exit the market entirely in Great Britain and Northern Ireland. The competitive pressure from AB would be lost, with or without the transaction, and the merger, therefore, would not raise competition concerns.
The case shows that the CMA will accept suitably argued exit arguments in a merger investigation. This is particularly relevant in the current climate of macro-economic shocks and the UK’s poor general economic environment. In relevant situations, this could in effect allow for an agreed restructuring of overcapacity between competitors, which would usually not be acceptable under general competition law.
Rare Interim Measures Imposed on Meta for Access to WhatsApp
In an extremely rare move, on 9 June 2026, the EC imposed interim measures on Meta to preserve the status quo pending a full EU competition law investigation.
In December 2025, the EC opened a competition law investigation into Meta’s new policy that in effect made competing AI providers inaccessible on its WhatsApp product. Meta’s own AI service, Meta AI, would remain available to users on the platform.
The EC concluded during its investigation that interim measures were warranted to prevent “serious and irreparable damage to competition in the growing market for general-purpose AI assistants.” This conclusion was based on a preliminary finding that, with WhatsApp, Meta has held a dominant position in the EEA-wide market for consumer communication applications since at least January 2023, and its action amounted to an abuse of that position through its refusal to provide access to an infrastructure developed for and previously open to third parties. A revised policy introduced on 4 March 2026 under which Meta would charge a fee is, in the EC’s preliminary view, equivalent in practice to the previous access ban.
In addition, the EC considers the position urgent because the policy change risks harming competition in the market for general-purpose AI assistants at a “key moment” for the development of that market.
Meta was therefore ordered to reinstate access for third-party general-purpose AI assistants to WhatsApp under the same terms and conditions that were in place before the original change of policy. This will remain in place until the EC adopts a final decision on the case.
The most recent decision imposing interim measures was in 2019 in an abuse of dominance case concerning exclusivity clauses used by Broadcom. The investigation ended with the company committing to end its use of the clauses.
UK Day Traders Settle Information Exchange Investigation
On 24 June 2026, the UK Financial Conduct Authority (FCA) announced it proposes to settle a UK competition law investigation into 11 commodity futures day traders. The FCA was concerned that the traders may have exchanged potentially sensitive information about their trading and/or coordinated their trading strategies with each other. The case is a reminder that independent traders and other contractors are competitors and should operate independently.
Day traders in commodity futures contracts are noncommercial participants in the market. They generally trade their own proprietary funds and seek to profit from short-term price movements in the underlying products. The individuals investigated by the FCA focussed their trading on energy futures contracts on exchange.
The 11 day traders traded commodity futures through a trading arcade, which provided them with access to trading platforms, software and market venues via the arcade’s relationship with an exchange clearing member. All the traders were members of a trading group called Futures Trading Facilities Ltd (FTF) that was run and owned by one of the day traders along with another individual.
The relationship among FTF, the trading arcade and the individual traders within FTF was set out in a group trading agreement under which each operated as an independent contractor rather than an employee of the trading arcade. This structure meant that each trader was a separate business for competition law purposes and should therefore have been competing with the other traders by independently deciding their own trading intentions and actions on the market.
No infringement was found, but the FCA “is concerned” that during a seven-month period the individuals frequently exchanged various types of competitively sensitive information. This included information about their future trading intentions and actions and their current trading positions and recent orders and/or trades. The FCA “is also concerned” the individuals may have coordinated their trading strategies by making plans about their respective strategies and occasional “in the moment” coordination.
To settle the case, the traders proposed commitments to change the way they handle sensitive information, undertake annual competition law training and arrange a £1M ex gratia payment to the UK government’s Crisis and Resilience Fund.
The trainer must be a lawyer qualified in England and Wales specialising in UK competition law and must “explain UK competition law rules and how they apply to the [individual’s] business activities.”
Additional EU and UK competition law news coverage can be found on McGuireWoods’ Insights page. McGuireWoods also publishes legal alerts on U.S. antitrust developments and numerous other topics.