5

The reasons given for the first inspection decision are as follows: ‘The Commission is in possession of information suggesting that DB Energie is able to give preferential treatment to the concerned subsidiaries of the DB group with a presence in the passenger and freight rail transport markets in the Member States where those subsidiaries operate, particularly in Germany, by means of a rebate system concerning the supply of electric traction energy. That preferential treatment may, in particular, arise from the structure of the rebates offered by DB Energie and may not be objectively justified. The Commission has evidence indicating that DB Energie may have applied similar rebate systems for the supply of electric traction energy in the past, at least since 2002. Furthermore, it cannot be ruled out that DB Energie may have applied those rebate systems or similar systems before that date. It is presumed that this method of doing business gives the concerned subsidiaries of the DB group an advantage over their competitors in the downstream rail transport markets, in the Member States where those subsidiaries pursue activities in the passenger and freight rail transport sector, particularly in Germany, and that the DB group can therefore obstruct competition in those markets. The conduct described above, if proved, constitutes an infringement of Article 102 TFEU and Article 54 of the EEA Agreement. It is necessary for the Commission to carry out inspections under Article 20 of Regulation No 1/2003 in order to examine all of the relevant facts relating to the alleged concerted practices and to the overall context, and to establish the precise extent to which all of the legal persons concerned were involved. The decisions on the fixing of prices within the DB group are probably taken at different levels in the undertaking. Furthermore, it is likely that relevant evidence may also be recovered from the DB group subsidiaries that in all probability benefited from the potentially unjustified advantageous prices, obstructing competition in the rail transport markets. Therefore, there is reason to believe that evidence may be found at each of the places listed in Article 1 of this decision. According to information held by the Commission, the pricing system that DB Energie previously applied in the German passenger and freight rail transport markets has already been the subject of proceedings in Germany, proceedings in which the regulatory and competition authorities appeared as parties. Consequently, the legal persons concerned know that regulatory and competition authorities monitor their charging system. In addition, the Commission has found, in the past, that the practices of the DB group concerning the fixing of prices infringed Article 102 TFEU, a finding that was confirmed by the courts of the European Union. As a result, the legal persons concerned might try to conceal, destroy or deny evidence relating to those practices, with a view to preventing the detection of possible unlawful practices involving the fixing of prices. In order to ensure that the inspections are effective, they must be conducted without informing the legal persons who are alleged to have participated in the infringement beforehand and be carried out simultaneously at several locations. To that end, a decision taken under Article 20(4) of Regulation No 1/2003 ordering an inspection of legal persons is necessary.’