The European Commission has imposed a fine of €38 million. on E.ON Energie AG (“E.ON”) for the breach of a Commission seal in E.ON’s premises during an inspection. The seal had been affixed to secure documents collected in the course of an unannounced inspection in May 2006. When the Commission came back the next day, the seal was broken. The inspection formed part of the Commission's enforcement activities against allegations of anticompetitive practices on the German energy markets.
The seal had been affixed by Commission officials during an unannounced inspection carried out in May 2006. The inspection concerned the suspicion of anticompetitive practices on the German electricity market. It is the Commission's practice to seal rooms when carrying out surprise inspections in order to make sure that no documents can be removed by the company when the inspection team is absent (e.g. at night).
The Commission's seals are made of plastic film. If they are removed, they do not tear, but show irreversible "VOID" signs on their surface. When the inspection team returned in the morning of the second day of the inspection, it found that such "VOID" signs were clearly visible on the entire surface of one of the seals which had been affixed the evening before. Also pieces of glue were found around the seal indicating that somebody had removed the seal and tried to fix it again. The broken seal was intended to secure the room in which all documents previously collected by the Commission, i.e. highly sensitive documents, were stored. As these documents were not yet listed, the Commission was unable to ascertain whether and which documents were taken by EON.
E.ON denied breaking the seal and first argued that the Commission had the only key to the room. However later it turned out that 20 keys were in circulation among E.ON employees. E.ON also tried to argue that there might be other explanations for the appearance of the "VOID" signs on the seal. E.ON's suggested explanations were inter alia: vibrations caused by the preparation of a conference next door, the use of an aggressive cleaning product, the age of the seal, and a high level of humidity.
In order to assess these arguments, the Commission carried out a very thorough investigation, including the use of outside experts to test the seals, but came to the conclusion that the arguments were not valid. Both the manufacturer of the seal and the independent expert who tested the Commission's original seals confirmed that the state of the seal as found in the morning of 30 May 2006 cannot be explained by any other reasons than by a breach of the seal. Indeed, according to the manufacturer, similar seals have been in use for decades, without any examples of malfunction.
The use of seals is intended to prevent the possibility of evidence being lost during an inspection, thus undermining the effectiveness of the inspection. Breaches of seals are therefore a serious infringement of competition law. As regards the level of the fine, Council Regulation 1/2003 (Article 23(1) (e)) provides that the Commission can impose a fine of up to 1% of the company's total turnover for a seal broken intentionally or negligently. When fixing the amount of the fine, the Commission has, however, taken into account the fact that it was the first time that a seal has been broken by a company subject to an inspection and that a fine has been imposed under the provisions of Regulation No 1/2003 concerning obstruction or interference with a Commission anti-trust investigation. [30 January 2008]