At the end of January, E.ON was fined EUR 38 million for violating an official seal which had been fixed by European Commission (the Commission) officials during a dawn raid.

In terms of Regulation 1/2003, the Commission is entitled to seal any business premises and books or records for the period and to the extent necessary for its inspection. The Commission is also entitled to impose a fine of up to 1% of an undertaking's total turnover in the preceding business year for intentional or negligent breach of such a seal.

In 2006, the Commission conducted a raid at E.ON's premises in Germany and, in order to secure documents which it had located during the raid (but which had not yet been catalogued), it placed them in an office whose door was then sealed using a special plastic film seal. On their return to the office the following morning, the Commission's inspection team found that "VOID" signs were clearly visible on the entire surface of one of the seals which had been affixed the evening before. According to the Commission's technical experts, the appearance of these signs were consistent with the seal having been removed (see link here). There were also signs that someone had tried to 'glue' the broken seal back into place.

In response to the Commission's allegations that it had violated the seal (at the least negligently), E.ON made various claims, including that any apparent breach was in fact attributable to: vibrations caused by meeting preparations next door, the use of an 'aggressive cleaning product', the age of the seal and a high level of humidity. None of these explanations, however, convinced the Commission. Despite not having proof that the breach had been intentional, it concluded that it had been negligent, noting for instance that E.ON had not informed all personnel in the building about the need to respect the seal.

In considering the seriousness of the breach, the Commission noted that E.ON would have had the opportunity to remove incriminating documents (none of which had been catalogued by the inspectors), and so to compromise the investigation.

The Commission decided in all the circumstances to impose a fine of EUR 38 million, notwithstanding that this was the first time that a seal has been broken by a company subject to an inspection. In addition, E.ON will now also appreciate that, if the Commission's main investigation results in a conviction, then its behaviour during the raid will count as an aggravating factor in any further fining decision.