On 26 November, the General Court ("GC") upheld a decision by the European Commission ("Commission") to impose a EUR 2.5 million fine on two Czech companies for refusing to submit to an inspection in 2009. This judgment serves as a reminder that companies are responsible for ensuring that all of the persons acting on their behalf do so in accordance with the Commission's instructions during unannounced inspections.
In this particular case, two incidents had occurred during unannounced inspections that led to the Commission's decision to impose a fine. First, the Commission had found that the companies had negligently allowed access to a blocked e-mail account of a person holding a key position. This had happened after a subordinate of the person responsible for the companies' IT services had reset the password of the blocked e-mail account after receiving a phone call from the owner of that account. Second, the Commission had discovered that one of the key person's inboxes did not contain any new e-mails, because the IT department had been instructed to prevent the e-mails addressed to the account from arriving in that inbox. The Commission qualified these incidents as a refusal to submit to inspections.
In its judgment, the GC followed the Commission's reasoning. As regards the first incident, the GC agreed with the Commission that when an inspection decision has been correctly notified to an authorized person within an undertaking, the Commission must be able to carry out the investigation without being under an obligation to inform each person concerned of his duties. Thus, after the Commission had correctly notified the inspection decision, it was up to the companies under inspection to take all the necessary measures to implement the Commission's instructions and to ensure that the persons authorized to act on their behalf did not obstruct the process. As regards the second incident, the GC agreed with the Commission that this constituted an intentional diversion of e-mails that thwarted the Commission's instructions and the purpose of its investigation.
This judgment underlines the need for companies to ensure that both employees and other persons acting on their behalf, including IT departments, are made fully aware of the Commission's instructions during unannounced inspections and subsequently closely observe those instructions.
The GC's ruling comes several weeks after the European Court of Human Rights ("ECHR") ruled that unannounced inspections by the Czech Antitrust Office in 2003 had violated the right to a private life. Specifically, the ECHR considered that Czech legislation did not provide sufficient ex post facto control measures by an independent court to counterbalance the absence of ex ante court approval for the execution of unannounced inspections. As a result, the Czech Antitrust Office has temporarily stopped conducting unannounced inspections.