Fine of € 38 million (US$ 51 million) for Procedural Breach during a 'Dawn Raid' upheld by EU Court

Today, December 15, 2010, the EU's General Court upheld the European Commission's decision to impose a € 38 million fine on the Germany energy company E.ON for breaching a seal during an antitrust dawn raid.

The General Court held that E.ON was "required to take all necessary measures to prevent any tampering with the seal" and the Commission was entitled to conclude that, at very least, the seal had been broken negligently.  The scale of the fine was not disproportionate given (i) the seriousness of the incident; and (ii) the need to ensure that companies did not benefit from breaking seals.

This was the first case in which the Commission had imposed such a fine in procedural cases of this kind.  However, the Commission is now pursuing two other similar cases, one relating to the breach of a seal, the other to the refusal to submit to an inspection.  The Commission has powers to impose penalties of up to 1% of worldwide group turnover.  E.ON's fine, however, represented only around 0.14% of the turnover of the relevant subsidiary.

E.ON has already announced that it is "likely" to lodge an appeal to the European Court of Justice.

Background

On May 29, 2006, the Commission raided E.ON's Hamburg offices on suspicion of anticompetitive practices on the German electricity market.  The raid took place over several days and, at the end of the first day, the documentary evidence gathered by the inspectors was stored in a room on the fifth floor of E.ON's offices.  The door of this room was locked and an adhesive seal was attached across a section of the frame.  The seals used by the Commission are made of plastic film and, if removed, do not tear but show irreversible "VOID" signs on their surface.  When the Commission officials returned the next morning, they found that one of the seals had been tampered with.  In addition to the seal showing the "VOID" signs, pieces of glue were found around its edges, possibly indicating that somebody had tried to re-affix it.

The Commission concluded that the seal had been broken illegally and, on January 30, 2008, issued a decision imposing a € 38 million euro fine.

E.ON appealed the fine to the General Court arguing that the Commission had not provided sufficient evidence that E.ON had broken the seal and had failed to take into account alternative explanations including:

• vibrations from the next-door conference room;
• the use by cleaning staff of a potent cleaning product;
• that the seal had (allegedly) passed its use-by date; and/or
• that there had been a high level of humidity on the relevant day.

The General Court dismissed all of these arguments.

The judgment of the General Court is available online (French version). 

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