Companies should inform security and cleaning staff of any seals affixed during a dawn raid. The Trade and Industry Appeals Tribunal recently ruled that the Authority for Consumers and Markets (ACM) was wrong to fine the Dutch National Association of General Practitioners (LHV) for breaking a seal affixed by ACM officials during a dawn raid. The legal provision penalising the breaking of affixed seals is directed at the person who commits the breach. According to the tribunal, the breaking of the seal could not be attributed to LHV.
The tribunal found(1) that LHV could not be held responsible for breaking the seal because a security guard at LHV's shared office building had in fact broken the seal during his rounds. The guard was not directly employed by LHV and the seal break was not carried out in LHV's ordinary course of business. In addition, LHV had taken all the necessary steps to inform all persons who could possibly enter the sealed room. It had informed cleaning staff and the facilities manager of the shared office building and had yellow tape affixed across the door as an extra precaution. The tribunal considered it unnecessary for LHV to have instructed the security guard directly, since any contact with the security staff usually ran through the facilities manager. It therefore quashed the fine imposed on LHV for the seal break.
The tribunal's reasoning applies only to seals affixed by ACM. If the European Commission affixes a seal during a dawn raid, Article 23 of Regulation 1/2003(2) applies. In that case, a fine can be imposed on the company where seals have been broken either intentionally or negligently. Recent EU case law shows that this can lead to substantial fines. Either way, it is wise for companies to inform not only their own staff, but also all persons who may have access to rooms where seals have been affixed to doors in order to prevent fines being imposed.
For further information on this topic please contact Jolling De Pree, Erik H Pijnacker Hordijk or Jaap de Keijzer at De Brauw Blackstone Westbroek by telephone (+31 70 328 53 28), fax (+31 70 328 53 25) or email (firstname.lastname@example.org, email@example.com firstname.lastname@example.org). The De Brauw Blackstone Westbroek website can be accessed atwww.debrauw.com
(1) See http://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:CBB:2014:200 (in Dutch).