EU court adviser backs email searches in antitrust probes, with privacy guardrails

(CN) — National regulators should be able to check company emails in antitrust investigations without running to a judge first, as long as clear rules and strong safeguards keep their powers in check, according to advice delivered Thursday to Europe’s top court.

Advocate General Laila Medina weighed in on a high-profile dispute from Portugal before the Court of Justice of the European Union, assessing how far competition watchdogs can go when digging through inboxes.

A group of Portuguese health care and payment service companies at the heart of the case said regulators went too far when prosecutors, not judges, signed off on seizing their internal emails during an antitrust probe. The firms, accused of exchanging pricing information, argue the move crossed a legal line and violated core EU privacy rights meant to protect personal data and private correspondence.

Medina disagreed, but on narrow terms. She said competition authorities may search and copy emails “without having prior judicial authorization, provided that a strict legal framework for that authority’s powers has been laid down together with adequate and effective safeguards against abuse and arbitrariness.”

The opinion drew a clear line between personal and professional spheres. Regulators, Medina wrote, “are not looking for personal data as such, but business information capable of demonstrating anticompetitive conduct.” Any private details that appear along the way, she added, are merely incidental.

Medina made a clear point about why company emails aren’t the same as personal phones. Phones, she noted, can reveal “a detailed and in-depth picture of almost all areas of the data subject’s private life,” but work emails usually can’t. That’s why, she said, competition inspectors don’t need a judge’s signoff when their searches stay within the professional sphere.

Still, she stressed that skipping a judge’s warrant doesn’t give regulators a blank check. Instead, she said, it comes with strict guardrails. Any inspection must be based on a well-founded decision backed by reasonable evidence of a potential competition violation.

Searches should stay focused — using precise keywords, gathering only material relevant to the case and handling any personal data with care, keeping it secure and confidential, and then deleting it when no longer needed.

Company representatives, she added, should be allowed to see what investigators select and challenge any files containing sensitive information. And when the inspection is over, national courts must have the power to review the whole process and throw out evidence collected unfairly.

Medina cast her opinion as a call for balance — strong enforcement, but never without limits. Her opinion also leaves space for countries that already demand a judge’s approval before competition raids, noting that EU rules don’t stop national laws from setting a higher bar for protection.

Anne Witt, a law professor at EDHEC Business School, said Medina’s latest opinion lands with more clarity on digital evidence than her first.

She pointed to a 2024 case known as Landeck , where the EU’s top court ruled that police need prior judicial approval to search a suspect’s phone, given how much personal information those devices hold.

But when it comes to work emails, Witt said that kind of scrutiny just isn’t necessary. Checking the emails first — and letting courts step in afterward — is enough to keep the process fair.

The opinion arrives as EU regulators face mounting criticism over how far their investigative powers can reach into private communications in the digital age. Competition authorities across the bloc routinely rely on email evidence to prove collusion, and recent dawn-raid challenges have increasingly invoked data-protection rights alongside procedural fairness claims.

Medina’s reasoning, if followed by the court, would affirm regulators’ ability to continue those searches while embedding privacy limits into every stage of the process.

Julian Nowag, associate professor of EU and competition law at the University of Hong Kong and Lund University, said the case could redraw the line between privacy and enforcement across the EU.

“If the court were to require judicial authorization for accessing internal communications, it would mark a significant shift in EU competition law,” he said, warning that such a move could shake up how national watchdogs and the European Commission work together.

But if the judges find no such approval is needed, Nowag said it would reinforce the EU’s commitment to tough antitrust enforcement. The real test, he added, is whether member states can still set stricter rules. If they can, it might “complicate cross-border evidence sharing between agencies with different procedural standards.”

The companies involved in the case, as well as the Portuguese Competition Authority, did not respond to requests for comment.

The Court of Justice is set to rule in the coming months. Advocate general opinions don’t bind the judges but often shape a case’s outcome. If the court follows the adviser’s lead, regulators could search company emails without a judge’s signoff as long as every step stays sharp, justified and within the limits of EU rights.

Courthouse News reporter Eunseo Hong is based in the Netherlands.