by Martina Maier and Philipp Werner

The European Commission (EC) imposed a EUR 8 million fine on Suez Environnement for the breach of a seal affixed during an antitrust inspection.  This is the second case of such a fine on an EU level after the EC imposed a fine of EUR 38 million on E.ON in 2008.  The fine was imposed even though Suez Environnement was able to prove that the breach of the seal was caused by negligence.  The decision shows how serious the EC is about interference with antitrust inspections.

Therefore, in cases of ‘room-sealing’ during an EC investigation, it is crucial for companies to take all steps to ensure that the seal will not be broken, as even proof of negligence will not protect the company against a high fine.  It may even be worth using security to protect seals against “accidents” involving cleaning or other personnel.

The decision concerns an incident that occurred in April 2010 when EU officials inspected Lyonnaise des Eaux (LDE), a subsidiary of Suez Environnement, due to suspicions of anticompetitive conduct.  Before leaving the premises at the end of the first day of the inspection, the EC placed a seal on an office door.  The next morning, that seal was broken.  In this case, evidence suggested that the seal was broken by accident.  However, neither the recordings of the surveillance-camera nor the testimonies of witnesses or the perpetrator himself helped the company to avoid a fine.

In the E.ON case, the company denied breaking the seal and maintained that the seal breach resulted from the ‘reduced adhesiveness of aging seals.’  However, despite this assertion, the fine was upheld by the EU General Court in December 2010.  The Court clarified that the EC was right to assume at the very least a negligent breach of the seal in the present case, and that it is not necessary for the EC to prove how the seal was actually broken or that evidence had actually been manipulated after the breach of the seal to impose a fine (Case T-141/08).

It should be noted that fines can also be imposed for the breach of a seal affixed in the context of antitrust inspections by a national competition authority.