EN Official Journal of the European Union C 251/4

Summary of the Commission Decision

of 24 May 2011

relating to a proceeding under Article 23 of Council Regulation (EC) No 1/2003 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty

(Case COMP/39.796 — Suez Environnement — Breach of seal)

(notified under document C(2011) 3640 final)

(Only the French text is authentic)

2011/C 251/04

On 24 May 2011, the Commission adopted a Decision relating to a proceeding under Article 23 of Council Regulation (EC) No 1/2003 (1) on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (2). In accordance with Article 30 of Regulation (EC) No 1/2003, the Commission publishes herewith the names of the parties and the main content of the Decision, including any penalties imposed, having regard to the legitimate interest of undertakings in the protection of their business secrets. A non-confidential version of the Decision is available on the Competition Directorate-General’s website at the following address:

http://ec.europa.eu/competition/elojade/isef/case_details.cfm?proc_code=1_39796

1. INTRODUCTION

(1) The Decision is addressed to Lyonnaise des Eaux France SA (‘LDE’, France) and Suez Environnement Company SA (‘Suez Environnement’, France). It imposes a fine on them for the breach of a seal affixed by Commission officials during an inspection of LDE's headquarters, an infringement referred to in Article 23(1)(e) of Council Regulation (EC) No 1/2003.

2. PROCEDURE

(2) On 21 May 2010 proceedings were initiated against Suez Environnement with a view to adopting a decision sanctioning the breaking of a seal at the headquarters of LDE, a wholly-owned subsidiary of Suez Environnement.

(3) On 21 October 2010 a statement of objections was sent to Suez Environnement and LDE. Based on the facts available, the statement of objections concludes that the seal affixed at LDE's headquarters was broken within the meaning of Article 23(1)(e) of Regulation (EC) No 1/2003 and that LDE and Suez Environnement bore responsibility for that infringement.

(4) On 8 December 2010 Suez Environnement and LDE submitted their comments in reply to the statement of objections. In their reply they contested neither the materiality nor the legal interpretation of the facts. They also did not contest the attribution of liability for the infringement to Suez Environnement.

(5) The Advisory Committee on Restrictive Practices and Dominant Positions was consulted on whether an infringement had been committed and the amount of the proposed fine on 2 May 2011. The Advisory Committee unanimously issued a positive opinion on the Commission’s draft Decision, including the amount of the proposed fine.

(6) The Hearing Officer submitted his final report on 3 May 2011. The report finds that the rights of the parties to be heard have been respected.

3. FACTS

(7) On 14 April 2010, during an inspection at the headquarters of LDE conducted under Article 20(4) of Regulation (EC) No 1/2003 in the context of Case COMP/39.756 (Water and waste water purification markets), a seal affixed by Commission officials was broken.

4. ANALYSIS

(8) First, the Decision determines that the seal in question was affixed in line with the provisions of Article 20(2)(d) of Regulation (EC) No 1/2003 and that it was intact when affixed.

(9) Second, the Decision determines that the seal was broken within the meaning of Article 23(1)(e) of Regulation (EC) No 1/2003 and that the breach was due at the very least to negligence.

(10) Third, the Decision determines that LDE was liable for the infringement in that it was committed on LDE's premises. Furthermore, Suez Environnement also bears responsibility for the infringement, given the business, organisational and legal ties between LDE and Suez Environnement and the fact that the latter was closely involved in the inspection carried out at LDE.

5. FINE

(11) Since the infringement referred to by Article 23(1)(e) of Regulation (EC) No 1/2003 has been established, the Commission may impose on the undertakings fines not exceeding 1 % of their turnover.

(12) In the present instance, regarding the amount of the fine, the Decision takes both the serious nature of the infringement and the special circumstances of the case into account.

(13) Concerning the serious nature of the infringement, the Decision notes that the breaking of a seal represents a major violation of the Commission's investigative powers in the competition field. Moreover, the Decision underlines that LDE and Suez Environnement, large companies with expertise in competition law, were fully aware of the risk of sanctions being incurred for this kind of infringement.

(14) As far as the special circumstances of the case are concerned, the Decision states that Suez Environnement and LDE, on discovering the breach of seal, voluntarily and without delay passed on to the Commission a great deal of information shedding light on the facts and facilitating the Commission's investigation. They also provided information on the basis of which they admit that an LDE employee broke the seal.

(15) In this connection the Decision emphasises that Suez Environnement and LDE provided information far beyond what the Commission could have insisted on under Article 18 of Regulation (EC) No 1/2003.

(16) Furthermore, the Decision notes that Suez Environnement and LDE accepted the findings of the statement of objections as to the materiality and legal interpretation of the facts, as well as the fact that the infringement was attributable to them.

6. CONCLUSION

(17) On the basis of all of the above, the Decision imposes a fine of EUR 8 000 000 jointly and severally on LDE and Suez Environnement.

(1) OJ L 1, 4.1.2003, p. 1.

(2) With effect from 1 December 2009, Articles 81 and 82 of the EC Treaty have become Articles 101 and 102 respectively of the TFEU. The provisions laid down in the respective articles are, in substance, identical in both cases. For the purposes of this Decision, references to Articles 101 and 102 TFEU should be understood as references to Articles 81 and 82 of the EC Treaty where appropriate.