Case T-141/08

E.ON Energie AG

v

European Commission

(Competition – Administrative procedure – Decision finding a breach of seal – Article 23(1)(e) of Regulation (EC) No 1/2003 – Burden of proof – Presumption of innocence – Proportionality – Duty to state reasons)

Summary of the Judgment

1. Competition – Administrative procedure – Commission decision finding an infringement – Evidence which has to be gathered – Degree of evidential value required

(Art. 81(1) EC)

2. European Union law – Principles – Fundamental rights – Presumption of innocence – Procedures in competition matters – Applicability

(Art. 6(2) EU; Charter of Fundamental Rights of the European Union, Art. 47)

3. Competition – Administrative procedure – Commission decision finding an infringement consisting in the conclusion of an anti-competitive agreement – Decision based on direct evidence – Evidential obligations of the undertakings denying the infringement

(Arts 81 EC and 82 EC)

4. Competition – Fines – Conditions for imposing Commission fines – Infringement committed intentionally or negligently – Decision finding the breaking of a seal – Burden of proof on the Commission – Limits

(Council Regulation No 1/2003, Art. 23(1)(e))

1. In the field of competition law, where there is a dispute as to the existence of an infringement, it is for the Commission to prove the infringements found by it and to adduce evidence capable of demonstrating to the requisite legal standard the existence of the circumstances constituting an infringement. For that purpose, it must gather sufficiently precise and consistent evidence to support the firm conviction that the alleged infringement took place

(see para. 48)

2. The principle of the presumption of innocence, resulting in particular from Article 6(2) of the European Convention on Human Rights, is one of the fundamental rights which, according to the case-law of the Court of Justice, reaffirmed by the preamble to the Single European Act, by Article 6(2) EU and by Article 47 of the Charter of Fundamental Rights of the European Union, are protected in the Community legal order. Given the nature of the infringements at issue and the nature and degree of severity of the ensuing penalties, the principle of the presumption of innocence applies in particular to procedures relating to infringements of the competition rules applicable to undertakings that may result in the imposition of fines or periodic penalty payments.

Where there is doubt, the benefit of that doubt must be given to the undertakings accused of the infringement. The Court cannot therefore conclude that the Commission has established the existence of the infringement at issue to the requisite legal standard if it still entertains doubts on that point, in particular in proceedings for the annulment of a decision imposing a fine.

(see paras 51-52, 238)

3. If the Commission finds, on the basis of the conduct of the undertakings concerned, that there has been an infringement of the competition rules, the Courts of the European Union will find it necessary to annul the decision in question where those undertakings put forward arguments which cast the facts established by the Commission in a different light and thus allow another plausible explanation of the facts to be substituted for the one adopted by the Commission in order to conclude that an infringement occurred.

However, where the Commission acts on the basis of direct evidence which is in principle sufficient to demonstrate the existence of the infringement, it is not sufficient for the undertaking concerned to raise the possibility that a circumstance arose which may affect the probative value of that evidence in order for the Commission to bear the burden of proving that that circumstance could not have affected the probative value of that evidence. On the contrary, except in cases where such proof cannot be provided by the undertaking concerned due to the conduct of the Commission itself, it is for the undertaking concerned to prove to the requisite legal standard, on the one hand, the existence of the circumstance which it alleges and, on the other, that that circumstance calls in question the probative value of the evidence relied on by the Commission.

(see paras 54, 56, 199)

4. Under Article 23(1)(e) of Regulation No 1/2003 on the implementation of the rules on competition laid down in Articles 81 and 82 EC, the Commission may impose fines where, intentionally or negligently, seals affixed by officials or other accompanying persons authorised by the Commission have been broken. Thus, under that provision, the onus is on the Commission to prove the breach of seal. On the other hand, it is not its responsibility to demonstrate that the room which had been sealed was actually entered or that the documents stored there were tampered with.

(see paras 85, 256)

JUDGMENT OF THE GENERAL COURT (Eighth Chamber)

15 December 2010 ( )

(Competition – Administrative procedure – Decision finding a breach of seal – Article 23(1)(e) of Regulation (EC) No 1/2003 – Burden of proof – Presumption of innocence – Proportionality – Obligation to state the reasons on which the decision is based)

In Case T‑141/08,

E.ON Energie AG, established in Munich (Germany), represented initially by A. Röhling, C. Krohs, F. Dietrich and R. Pfromm, and subsequently by A. Röhling, F. Dietrich and R. Pfromm, lawyers,

applicant,

v

European Commission, represented by A. Bouquet, V. Bottka and R. Sauer, acting as Agents,

defendant,

APPLICATION for annulment of Commission Decision C (2008) 377 final of 30 January 2008 relating to a fine pursuant to Article 23(1)(e) of Council Regulation (EC) No 1/2003 for breach of a seal (Case COMP/B‑1/39.326 – E.ON Energie AG),

THE GENERAL COURT (Eighth Chamber),

composed of M.E. Martins Ribeiro (Rapporteur), President, S. Papasavvas and N. Wahl, Judges,

Registrar: K. Andòva, Administrator,

having regard to the written procedure and further to the hearing on 14 April 2010,

gives the following

Judgment

Legal context

1 Article 20(2)(d) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1) provides that ‘[t]he officials and other accompanying persons authorised by the Commission to conduct an inspection are empowered … to seal any business premises and books or records for the period and to the extent necessary for the inspection’.

2 Under Article 23(1)(e) of Regulation No 1/2003, ‘[t]he Commission may by decision impose on undertakings and associations of undertakings fines not exceeding 1% of the total turnover in the preceding business year where, intentionally or negligently … seals affixed in accordance with Article 20(2)(d) by officials or other accompanying persons authorised by the Commission have been broken’.

Background to the dispute

3 By decision of 24 May 2006, in accordance with Article 20 of Regulation No 1/2003, the Commission of the European Communities ordered an inspection at the premises of E.ON AG and the undertakings controlled by it, in order to ascertain the validity of suspicions as regards their participation in anti‑competitive agreements. The inspection of the applicant, E.ON Energie AG, a wholly‑owned subsidiary of E.ON, commenced in the afternoon of 29 May 2006 at its business premises in Munich. On learning of the inspection decision, the applicant declared that it had no objection to it.

4 The inspection was carried out by four representatives of the Commission and six representatives of the Bundeskartellamt (the German competition authority). The documents selected during the inspection on 29 May 2006 for more detailed examination by those representatives were stored in room G.505, which was made available to the Commission by the applicant. Since the inspection could not be completed on the same day, the leader of the inspection team locked the door of that room, consisting of painted sound‑insulating door leaf panels and of a door frame made of anodised aluminium, and affixed to it an official seal measuring 90 mm by 60 mm (‘the seal at issue’). The latter was affixed with up to approximately two thirds of its surface area on the door leaf and the remainder on the door frame. A record of sealing was drawn up and signed by representatives of the Commission, the Bundeskartellamt and the applicant. The inspectors then left the applicant’s premises, taking with them the key to the door of room G.505 which had been handed over to them. In reply to a request for information, the applicant indicated that, in addition to that key handed over to the Commission, 20 other ‘master keys’ giving access to room G.505 were also in circulation (recital 19 to the contested decision).

5 The seal at issue was a blue adhesive label with yellow lines on the upper and lower edges and the yellow stars of the European flag. The lower yellow area contained a notice to the effect that the Commission may impose a fine in the event of a breach of the seal. The security label used to make the seal at issue (‘the security label’) had been manufactured by 3M Europe SA (‘3M’) in December 2002. The Commission then had the abovementioned details printed on the security label by a printing firm in the first quarter of 2004.

6 When a plastic seal, such as the seal at issue, is broken, the white adhesive by means of which the seal is fixed to the substrate remains on the latter in the form of ‘VOID’ messages about 12 Didot points (approximately 5 mm) high, distributed over the whole surface of the adhesive label. The removed seal becomes transparent at those points, so that the ‘VOID’ messages are also visible on the seal.

7 On its return, at around 08.45 hrs on 30 May 2006, the inspection team found that the condition of the seal at issue, which was still adhering to the door of room G.505, had changed.

8 At around 09.15 hrs, the leader of the inspection team opened the door of room G.505. The opening of the door caused the detachment of the part of the seal at issue which was stuck to the door leaf, whereas the other part remained stuck to the door frame.

9 A breach‑of‑seal report was drawn up, which states inter alia the following:

‘…

– The entire seal was displaced by about 2 mm upwards and sideways so that traces of adhesive were visible at the lower and right-hand edges of the seal.

– The “VOID” message was clearly visible over the entire surface of the seal, which was nevertheless still affixed crosswise from the door frame to the surface of the door and was not torn.

– After the door was opened by the Commission [official] (Mr K.), the seal remained intact, that is, it did not tear, and on the rear of the seal (the adhesive side) white traces of the “VOID” message were evident.

– When the seal is removed, the white “VOID” message normally remains on the substrate, and that was largely the case here, too, the message being in fact on the door surface.

– Numerous white traces were, however, also visible on the adhesive surface of the seal, not on, but beside the corresponding transparent sections of the “VOID” message on the rear of the seal.’

10 The breach‑of‑seal report was signed by a representative of the Commission and by a representative of the Bundeskartellamt. The applicant refused to sign it.

11 During the afternoon of 30 May 2006, some digital photographs of the seal at issue were taken with a mobile telephone.

12 On 31 May 2006, the applicant made a ‘supplementary statement … to the record of sealing of 30 May 2006’, which reads as follows:

‘1. When the door was opened, no change in the documents stored in the room was ascertained.

2. On removal of the seal on the evening of 30 May prior to resealing, the “VOID” message on the door frame was completely intact.

3. Mr K. was present when the seal was affixed on the previous evening and had the impression that the process was unusually protracted.’

13 On 9 August 2006, the Commission sent a request for information to the applicant in accordance with Article 18 of Regulation No 1/2003. The applicant replied by letter of 23 August 2006. Other requests for information were sent on 29 August 2006 to 3M, on 31 August 2006 to the cleaning company working for the applicant (‘the cleaning company’) and on 1 September 2006 to the applicant’s security service.

14 The 10 members of the inspection team completed questionnaires relating to their observations on the affixing of the seal at issue and on its condition on the morning of 30 May 2006.

15 On 2 October 2006, the Commission sent a statement of objections to the applicant. On the basis of the available information, it concluded inter alia that the seal at issue had been broken and that, because of the applicant’s organisational power in the building in question, the applicant had to be held responsible for that breach of seal.

16 On 13 November 2006, the applicant submitted its comments on the statement of objections.

17 On 6 December 2006, at the applicant’s request, an oral hearing took place, held by the Hearing Officer, which 3M also attended.

18 On 21 December 2006, at the Commission’s request, 3M confirmed in writing certain statements made during the oral hearing.

19 During the administrative procedure, the applicant forwarded to the Commission three expert opinions from an institute of natural sciences and medicine (‘the institute’).

20 On 21 March 2007, the institute produced a first expert opinion (‘institute expert opinion I’), which analysed the reaction of the seal at issue to shearing and peeling stresses.

21 On 11 April 2007, the Commission asked Mr Kr., a sworn expert in adhesives technology and the material behaviour of plastics, to draw up a report on certain aspects of the performance and handling of the seal at issue. His first report (‘Kr. report I’) was drawn up on 8 May 2007.

22 On 15 May 2007, the institute produced a second expert opinion (‘institute expert opinion II’), which analysed the reaction of the seal at issue to pulling-shearing and compression stresses and to peeling stresses following the use of the cleaning product Synto (‘Synto’).

23 By letter of 6 June 2007, the Commission informed the applicant of the new facts ascertained since the statement of objections, based on 3M’s statements and Kr. report I, and gave it the opportunity to comment on them in writing.

24 On 6 July 2007, the applicant sent the Commission written comments and requested a further hearing. That request was refused.

25 On 1 October 2007, the applicant sent the Commission the institute’s third expert opinion, dated 27 September 2007 (‘institute expert opinion III’), which analysed the reaction of the seal at issue to peeling stresses following ageing, the use of Synto and air humidity.

26 The Commission then asked Mr Kr. to comment on the arguments and remarks contained in the applicant’s letter of 6 July 2007 and in institute expert opinions II and III. Mr Kr. drew up his second report on 20 November 2007 (‘Kr. report II’).

27 By letter of 23 November 2007, the Commission informed the applicant of the additional facts identified since its letter of 6 June 2007. At the same time, it granted the applicant access to the relevant documents, and in particular to Kr. report II.

28 On 10 December 2007, the applicant commented on the documents sent on 23 November 2007.

29 On 15 January 2008, the Commission received another letter from the applicant, to which were attached affidavits from 20 persons who, according to the applicant, were in possession of a key to room G.505 on the evening of 29 May 2006 (‘the keyholders’). Those persons declared in those affidavits that, during the period in question (between 19.00 hrs on 29 May 2006 and 09.30 hrs on 30 May 2006), they had either not been in building G or had not opened the door of the room in question (recital 42 to the contested decision).

30 On 30 January 2008, the Commission adopted Decision C (2008) 377 final relating to a fine pursuant to Article 23(1)(e) of Council Regulation (EC) No 1/2003 for breach of a seal (Case COMP/B-1/39.326 – E.ON Energie AG (‘the contested decision’), a summary of which is published in the Official Journal of the European Union of 19 September 2008 (OJ 2008 C 240, p. 6).

31 The operative part of the contested decision states:

‘Article 1

E.ON Energie AG broke a seal affixed by representatives of the Commission pursuant to Article 20(2)(d) of Regulation No 1/2003 and at least negligently infringed Article 23(1)(e) of Regulation No 1/2003.

Article 2

A fine of EUR 38 000 000 is hereby imposed on E.ON Energie AG for the infringement referred to in Article 1.

…’

Procedure and forms of order sought

32 By application lodged at the Registry of the Court on 15 April 2008, the applicant brought the present action.

33 The applicant claims that the Court should:

– annul the contested decision;

– in the alternative, reduce the amount of the fine imposed to an appropriate amount;

– order the Commission to pay the costs.

34 The Commission contends that the Court should:

– dismiss the action in its entirety;

– order the applicant to pay the costs.

35 Upon hearing the report of the Judge‑Rapporteur, the Court (Eighth Chamber) decided to open the oral procedure. The parties presented their oral arguments and their replies to the oral questions put by the Court at the hearing on 14 April 2010.

Law

36 The applicant raises nine pleas in support of the action. The first seven pleas concern the finding of breach of seal, whereas the last two relate to the amount of the fine.

37 The first plea alleges failure to have regard to the burden of proof, the second, infringement of the ‘principle of inquisitorial procedure’, the third, an erroneous assumption that the seal was affixed properly, the fourth, an erroneous assumption of the ‘obvious condition’ of the seal at issue on the day following the inspection, the fifth, an erroneous assumption of the suitability of the security label for official sealing by the Commission, the sixth, disregard by the Commission of ‘alternative scenarios’ which may have been the cause of the condition of the seal at issue, the seventh, breach of the principle of the presumption of innocence, the eighth, infringement of Article 23(1) of Regulation No 1/2003 inasmuch as no fault on the applicant’s part was established and, finally, the ninth, infringement of Article 253 EC and of the principle of proportionality when the amount of the fine was set.

The first plea, alleging failure to have regard to the burden of proof

Arguments of the parties

38 The applicant submits that, in accordance with the principle of in dubio pro reo, the principle of the presumption of innocence, enshrined in Article 6(2) of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’), and the first sentence of Article 2 of Regulation No 1/2003, the Commission bears the burden of proof in proceedings capable of resulting in fines imposed under antitrust law. Since the Commission is required to observe the fundamental guarantees of criminal law and to prove to the requisite legal standard that an infringement has occurred, the undertaking in question should receive the benefit of any doubts on the Commission’s part. According to the applicant, it is apparent from the case‑law that, where the Commission acts on the basis of the assumption that facts found cannot be explained in any way other than as being the result of an infringement, it is sufficient to establish circumstances which cast the facts established by the Commission in a different light and which thus allow a different explanation of the facts to be substituted for that adopted by the Commission in order to conclude that an infringement has occurred.

39 As regards the Commission’s assertion that the alteration of the seal at issue is in any event ‘prima facie evidence’ of the material ingredient of breach of seal, the applicant submits that such evidence is incompatible with the principle of in dubio pro reo. In proceedings under Article 23(1) of Regulation No 1/2003, ‘prima facie evidence’ does not constitute admissible evidence and is not under any circumstances sufficient to prove an infringement penalised by a fine. Even if, by referring to ‘prima facie evidence’, the Commission actually meant proof by circumstantial factors, it has not adduced any proof since it has not established any circumstantial factors.

40 Furthermore, the burden of proof resting on the Commission is increased in this case as a result of its own conduct.

41 Firstly, when it used the seal at issue, the Commission did not take appropriate measures to limit the risk of ‘false positive reactions’ (that is, the appearance of ‘VOID’ messages on the seal at issue in the absence of its detachment), in particular due to the failure to comply with the shelf life of its seal. Thus, the Commission should have proved that, despite the fact that the maximum shelf life of the seal at issue had been exceeded, the seal was suitable and operational during the night of 29 to 30 May 2006. The manufacturer’s information is insufficient in that regard, since 3M mentions only a maximum shelf life of two years in the data sheet on the security label (‘the technical bulletin’) and was also unable to give a definitive opinion on the exact life of the product in the reply to the Commission’s questionnaire. Nor did the Commission adduce such proof by means of Mr Kr.’s tests which, moreover, were not carried out on the seal at issue itself. Finally, the institute’s expert opinion mentions that self-adhesive seals may be characterised by greater sensitivity depending on the circumstances in which they are affixed and the level of air humidity.

42 Secondly, the Commission failed to take, on the spot, the necessary measures to preserve evidence by taking photographs of the seal at issue prior to the opening of the door, in particular in the light of the observations relating to the condition of the seal at issue which were made by the applicant’s representatives to the representatives of the Commission on the morning of 30 May 2006. In that regard, the record of breaking of the seal does not in itself constitute sufficient proof of the condition of the seal at issue, since it was drawn up after the inspection.

43 Having regard to the principle of in dubio pro reo and to the increase in the burden of proof which resulted from the Commission’s conduct, it is not possible to find that a breaking of the seal occurred for which the applicant can be held responsible. The Commission has thus failed to prove beyond all reasonable doubt the material ingredient of the infringement.

44 Contrary to what the Commission contends, the present plea is not abstract, but specifically asserts the absence of proof that circumstances attributable to the applicant led to the alteration in the condition of the seal at issue. Thus, even without the expert opinions submitted by the applicant, the imposition of a penalty in the form of a fine would not be justified. In a proceeding resulting in a decision imposing a fine, it is not for the undertaking concerned to establish proof of exculpatory factors or ‘alternative scenarios’. On the contrary, the Commission must examine comprehensively all the inculpatory and exculpatory circumstances and adduce absolute proof beyond all reasonable doubt that circumstances attributable to the applicant led to the alteration in the condition of the seal at issue. A mere probability that the infringement occurred is not sufficient for the purpose of imposing a fine, a fortiori since the applicant has raised sufficient doubts as regards the adduction of evidence.

45 Even if it were to be accepted that, initially, the Commission provided seemingly convincing evidence establishing the constituent elements of a breach of seal, the applicant has nevertheless successfully adduced evidence in rebuttal. It has, in any case, succeeded in raising doubts as to the fact that the Commission’s evidence was sufficient to prove the infringement. Contrary to what the Commission suggests in recital 44 to the contested decision, the applicant did not, as regards the existence of the breach of seal, ‘simply … claim that alternative explanations are possible’ or merely ‘claim that an [atypical] alternative scenario was theoretically possible’, but relied on a number of expert opinions by the institute in order to adduce proof that certain circumstances, namely the use of an out‑of‑date seal, air humidity, the vibrations to which the door and its frame were subjected and the resultant shearing stresses as well as the effect of Synto, could have caused creeping of the seal at issue, creating the ‘impression of damage’ found by the inspection team. In proceedings culminating in a decision imposing a fine, any particular circumstances surrounding the choice of the seal’s intermediate product (in this case, the security label), its storage and its use by the Commission cannot be regarded as being purely and simply irrelevant.

46 In the present plea, the applicant proposes, in accordance with Article 65(c) of the Rules of Procedure of the General Court, that the oral testimony of its lawyer and an employee of E.ON should be heard with regard to the circumstances in which the seal at issue was found on the morning of 30 May 2006.

47 The Commission contends that the first plea should be rejected since it is worded abstractly and without examining the actual effects on the assessment of the evidence and on the contested decision. In the alternative, it also disputes the applicant’s arguments.

Findings of the Court

48 Under Article 2 of Regulation No 1/2003 and according to settled case‑law relating to the application of Articles 81 EC and 82 EC, in the field of competition law, where there is a dispute as to the existence of an infringement, it is for the Commission to prove the infringements found by it and to adduce evidence capable of demonstrating to the requisite legal standard the existence of the circumstances constituting an infringement (Case C‑185/95 P Baustahlgewebe v Commission [1998] ECR I‑8417, paragraph 58; Joined Cases C‑2/01 P and C‑3/01 P BAI and Commission v Bayer [2004] ECR I‑23, paragraph 62; and Case T‑201/04 Microsoft v Commission [2007] ECR II‑3601, paragraph 688). For that purpose, it must gather sufficiently precise and consistent evidence to support the firm conviction that the alleged infringement took place (see, to that effect, Joined Cases 29/83 and 30/83 CRAM and Rheinzink v Commission [1984] ECR 1679, paragraph 20; Joined Cases C‑89/85, C‑104/85, C‑114/85, C‑116/85, C‑117/85 and C‑125/85 to C‑129/85 Ahlström Osakeyhtiö and Others v Commission [1993] ECR I‑1307, paragraph 127; and Joined Cases T‑185/96, T‑189/96 and T‑190/96 Riviera Auto Service and Others v Commission [1999] ECR II‑93, paragraph 47).

49 Next, it must be recalled that, in proceedings for annulment brought under Article 230 EC, all that is required of the Courts of the European Union is to verify the legality of the contested measure (Joined Cases T‑67/00, T‑68/00, T‑71/00 and T‑78/00 JFE Engineering and Others v Commission [2004] ECR II‑2501, paragraph 174).

50 Thus, the role of a Court hearing an application for annulment brought against a Commission decision finding the existence of an infringement in the field of competition law and imposing fines on the addressees consists in assessing whether the evidence and other information relied on by the Commission in its decision are sufficient to establish the existence of the alleged infringement (JFE Engineering and Others v Commission, paragraph 49 above, paragraph 175).

51 Where there is doubt, the benefit of that doubt must be given to the undertakings accused of the infringement (see, to that effect, Case 27/76 United Brands and United Brands Continentaal v Commission [1978] ECR 207, paragraph 265). The Court cannot therefore conclude that the Commission has established the existence of the infringement at issue to the requisite legal standard if it still entertains doubts on that point, in particular in proceedings for the annulment of a decision imposing a fine (JFE Engineering and Others v Commission, paragraph 49 above, paragraph 177).

52 In the latter situation, it is necessary to take account of the principle of the presumption of innocence resulting in particular from Article 6(2) of the ECHR, which is one of the fundamental rights which, according to the case-law of the Court of Justice and as reaffirmed by the preamble to the Single European Act, by Article 6(2) EU and by Article 47 of the Charter of Fundamental Rights of the European Union proclaimed on 7 December 2000 in Nice (OJ 2000 C 364, p 1), are protected in the Community legal order. Given the nature of the infringements at issue and the nature and degree of severity of the ensuing penalties, the principle of the presumption of innocence applies in particular to the procedures relating to infringements of the competition rules applicable to undertakings that may result in the imposition of fines or periodic penalty payments (see, to that effect, in particular the judgments of the European Court of Human Rights of 21 February 1984 in Öztürk v. Germany, Series A no. 73, and of 25 August 1987 in Lutz v. Germany, Series A no. 123, of the Court of Justice in Case C‑199/92 P Hüls v Commission [1999] ECR I‑4287, paragraphs 149 and 150, and Case C‑235/92 P Montecatini v Commission [1999] ECR I‑4539, paragraphs 175 and 176; and JFE Engineering and Others v Commission, paragraph 49 above, paragraph 178).

53 The applicant relies on the case‑law concerning concerted practices prohibited by Article 81 EC, according to which parallel conduct of the undertakings concerned cannot be considered to prove concerted action contrary to that provision unless concerted action is the only plausible explanation for it (CRAM and Rheinzink v Commission, paragraph 48 above, paragraph 16). As regards concerted practices, it is thus for the Commission, in the light of the arguments put forward by the undertakings concerned during the administrative procedure, to examine all the possible explanations for the conduct at issue and to find that it is in the nature of an infringement only where the infringement constitutes the only plausible explanation.

54 Consequently, if the Commission finds, on the basis of the conduct of the undertakings concerned, that there has been an infringement of the competition rules, the Courts of the European Union will find it necessary to annul the decision in question where those undertakings put forward arguments which cast the facts established by the Commission in a different light and thus allow another plausible explanation of the facts to be substituted for the one adopted by the Commission in order to conclude that an infringement occurred (CRAM and Rheinzink v Commission, paragraph 48 above, paragraph 16, and Ahlström Osakeyhtiö and Others v Commission, paragraph 48 above, paragraphs 126 and 127).

55 However, in the same way as, where the Commission relies, in establishing an infringement of Articles 81 EC and 82 EC, on documentary evidence, the burden is on the undertakings concerned not only to put forward a plausible alternative to the Commission’s view but also to allege that the evidence relied on in the contested decision to establish the existence of the infringement is insufficient (see, to that effect, Joined Cases T‑305/94 to T‑307/94, T‑313/94 to T‑316/94, T‑318/94, T‑325/94, T‑328/94, T‑329/94 and T‑335/94 Limburgse Vinyl Maatschappij and Others v Commission [1999] ECR II‑931, paragraphs 725 to 728, and JFE Engineering and Others v Commission, paragraph 49 above, paragraph 187), it must be held that, in a case such as this, where the Commission relies on direct evidence, it is for the undertakings concerned to demonstrate that the evidence relied on by the Commission is insufficient. It has already been ruled that such a reversal of the burden of proof does not infringe the principle of the presumption of innocence (see, to that effect, Montecatini v Commission, paragraph 52 above, paragraph 181).

56 It is also important to point out that an undertaking cannot transfer the burden of proof to the Commission by relying on circumstances which it is not in a position to establish (see, to that effect, Case T‑44/00 Mannesmannröhren-Werke v Commission [2004] ECR II‑2223, paragraph 262, and JFE Engineering and Others v Commission, paragraph 49 above, paragraph 343). In other words, when the Commission relies on evidence which is in principle sufficient to demonstrate the existence of the infringement, it is not sufficient for the undertaking concerned to raise the possibility that a circumstance arose which might affect the probative value of that evidence in order for the Commission to bear the burden of proving that that circumstance was not capable of affecting the probative value of the evidence. On the contrary, except in cases where such proof could not be provided by the undertaking concerned on account of the conduct of the Commission itself (see, to that effect, Mannesmannröhren-Werke v Commission, paragraphs 261 and 262, and JFE Engineering and Others v Commission, paragraph 49 above, paragraphs 342 and 343), it is for the undertaking concerned to prove to the requisite legal standard, on the one hand, the existence of the circumstance relied on by it and, on the other, that that circumstance calls in question the probative value of the evidence relied on by the Commission.

57 In the present plea, the applicant submits that the Commission was required to prove, in the contested decision, beyond all reasonable doubt, that the alteration of the condition of the seal at issue, found on 30 May 2006, was attributable to it, after demonstrating that the various circumstances alleged by it could not have explained that condition. According to the applicant, it is not for it to establish proof of exculpatory factors or ‘alternative scenarios’. A mere probability that the infringement occurred is not sufficient for the purpose of imposing a fine, a fortiori since the applicant has raised sufficient doubts regarding the adduction of evidence. In its first plea, the applicant thus refers to the age of the seal at issue, to the air humidity, to the vibrations to which the door and door frame were subjected, to the resultant shearing stresses and to the effect of Synto, all of which could have caused creeping of the seal at issue, creating the ‘impression of damage’ found by the inspection team.

58 In that regard, it must be noted that, contrary to what the Commission contends, the plea raised by the applicant is not abstract, since, in essence, the applicant asserts that, in the light of the Commission’s disregard of the principles governing the burden of proof in Community competition law, the Commission has not proved to the requisite legal standard that circumstances attributable to the applicant resulted in the alteration of the condition of the seal at issue, so that the contested decision should be annulled.

59 However, it is clear from the contested decision that the Commission did not disregard the principles governing the burden of proof. Firstly, recital 44 to the contested decision expressly states that ‘it is the Commission’s duty to submit the facts to prove the breach of the seals’. Secondly, the Commission based its finding of a breach of seal on the condition of the seal at issue on the morning of 30 May 2006, which, according to the Commission, had ‘VOID’ messages over its entire surface and traces of adhesive on its back, as is clear inter alia from the statements of the Commission and the Bundeskartellamt inspectors and from the findings contained in the breach‑of‑seal report (recitals 75 and 76 to the contested decision).

60 Consequently, referring inter alia to the statements of six inspectors present on the spot and to the signature by the applicant of the record of sealing, the Commission first found that the seal at issue was affixed properly on the evening of 29 May 2006 (recitals 50 and 51 to the contested decision). The Commission then found, as was noted in paragraph 59 above, an alteration in the condition of that seal on the morning of 30 May 2006, which, according to it, proves the breach‑of‑seal infringement

61 Irrespective of the probative value of the evidence on which the Commission relied and which will have to be assessed in the context of the examination of the third, fourth and fifth pleas, the Commission was fully entitled to consider in recital 44 to the contested decision that ‘[t]he mere claim that an [atypical] alternative scenario was theoretically possible cannot be regarded as sufficient’ to refute the existence of an infringement. Under the principles set out in paragraphs 55 and 56 above, it was for the applicant to prove not only the genuineness of the various circumstances alleged by it for the purpose of explaining the condition of the seal at issue on 30 May 2006, but also that those circumstances call in question the probative value of the evidence produced by the Commission.

62 In the contested decision, the Commission examined the alternative explanations concerning the condition of the seal at issue on 30 May 2006 put forward by the applicant during the administrative procedure. However, the Commission took the view that those explanations did not demonstrate that that condition resulted from circumstances other than a breach of seal (recitals 62 to 68 and 77 to 98 to the contested decision). In those circumstances, no infringement of the principles relating to the burden of proof can be found to have occurred.

63 Finally, the applicant cannot claim that two circumstances, namely the alleged obsolescence of the seal at issue and the absence of photographs showing the condition of the seal at issue prior to the opening of the door, increased the burden of proof on the Commission. Assuming that the existence of those circumstances is sufficiently established, it will be necessary to examine whether, in the light of the arguments put forward by the applicant relating to those circumstances, the evidence put forward by the Commission substantiates to the requisite legal standard the finding of a breach of seal as referred to in Article 23(1)(e) of Regulation No 1/2003. That examination will be carried out in the context of the analysis of the third, fourth and fifth pleas.

64 It follows from all the foregoing that the first plea must be rejected.

The second plea, alleging infringement of the ‘principle of inquisitorial procedure’

Arguments of the parties

65 Referring to the judgments of the Court of Justice in Joined Cases 56/64 and 58/64 Consten and Grundig v Commission [1966] ECR 299 and Case C‑269/90 Technische Universität München [1991] ECR I‑5469, the applicant recalls that, under the ‘principle of inquisitorial procedure’, the Commission is required of its own motion to clarify the facts and to examine carefully and impartially all the relevant aspects of the individual case. That ‘principle’ was infringed in this case.

66 Firstly, the Commission should have remedied the ‘manifest uncertainties’ relating to the composition of Synto. The Commission should not have contented itself with asserting that it did not know which cleaning agent the institute had used in its expert analyses (recital 85 to the contested decision). In institute expert opinion II, the institute established the presence of the component 2‑(2‑Butoxyethoxy)ethanol in Synto. That component attacks a large number of organic substances. Conversely, Mr Kr. did not himself carry out an analysis of the composition of Synto, but was of the view that the cleaning product consisted of ‘a surfactant watery dilution containing elements of 2‑Butoxyethanol and 2‑Propanol (isopropyl alcohol)’. Such a substance produces only effects similar to those of an alcohol whereas the substance analysed by the institute also produces the same effects as an ether and, therefore, an additional solvent effect vis‑à‑vis inter alia adhesives and felt-tip pen marks. The results of the institute’s expert analyses should have prompted the Commission to carry out additional analyses of the composition of Synto. The Commission cannot refrain from doing so solely on the ground that the only variant of Synto which is more or less free of water (‘Synto Forte’) is not, according to the manufacturer’s product description, sold in the bottles of one litre which were used by the cleaning company (recital 85 to the contested decision). It is impossible to exclude the possibility that the manufacturer made incorrect statements and/or that the packaging used for Synto changed subsequently.

67 The Commission also failed to take account of the fact that the cleaning product used previously by the cleaning company (Synto Forte) was replaced by Synto shortly before the inspection, which was pointed out to the Commission in the applicant’s reply to the request for information of 19 October 2007. In that regard, it is impossible to discount the possibility that the cleaning company still had some Synto Forte left over. The Commission could easily have carried out an analysis of the cleaning product used, given that the applicant offered to send it some of the remaining contents of the bottle.

68 Secondly, the Commission infringed its obligation to investigate by not inquiring into the alleged possibility that the keyholders gave access to room G.505 to third parties and into the alleged possibility that someone entered that room in another way. The Commission thus disregarded, in recitals 98 and 100 to the contested decision, the fact that the door of the room in question had been not only sealed, but also locked to prevent any intrusion. The affidavits of the keyholders show that, during the night in question, the door of the room concerned was neither unlocked nor opened. The applicant requests that the necessary proof be adduced by the hearing of oral testimony from those persons, in accordance with Article 65(c) of the Rules of Procedure.

69 In so far as the Commission asserts that other persons could have obtained a key to room G.505 from the keyholders (recital 98 to the contested decision), the applicant maintains that, having regard to its obligation to clarify the facts completely, the Commission should have demanded that the affidavits be supplemented or itself inquired into the location of the keys.

70 Similarly, in so far as the Commission asserts that the affidavits do not exclude the possibility that ‘the door might have been opened by other means’ (recital 98 to the contested decision), it should have carried out investigations into the lock and the door of room G.505, which might have established breaking and entering or attempted tampering of some kind. An analysis of the surface of the door would have made it possible to establish that the opening of the door by other means could be ruled out.

71 The applicant adds that it cannot be assumed that it knowingly encouraged one of the keyholders to damage the seal at issue and/or to open the door. It submits that, under German law, by giving a false affidavit, that third party would be liable to prosecution and possibly to the payment of heavy damages.

72 Thirdly, by its framing of question No 6 in the questionnaire for the inspectors, which precluded or influenced the reproduction of the inspectors’ own observations, the Commission infringed the ‘principle of inquisitorial procedure’.

73 The Commission submits that the present plea must be rejected since the applicant merely makes general comments without showing how the complaints raised could affect the lawfulness of the contested decision. In the alternative, it disputes the applicant’s arguments.

Findings of the Court

74 As was recalled in paragraph 48 above, in the field of competition law, it is for the Commission to prove the infringements found by it and to adduce evidence capable of demonstrating to the requisite legal standard the existence of the circumstances constituting an infringement. For that purpose, it must gather sufficiently precise and consistent evidence to support the firm conviction that the alleged infringement took place.

75 It should also be noted that, for the purpose of complying with the principle of good administration, the Commission must play its part, using the means available to it, in ascertaining the relevant facts and circumstances (Consten and Grundig v Commission, paragraph 65 above, p. 347).

76 The guarantees conferred by the Community legal order include, in particular, the duty of the competent institution to examine carefully and impartially all the relevant aspects of the individual case (see, to that effect, Technische Universität München, paragraph 65 above, paragraph 14, and Case T‑167/94 Nölle v Council and Commission [1995] ECR II‑2589, paragraph 73).

77 In that regard, it must be noted as a preliminary point that the applicant’s plea seeks to show that the Commission did not examine the relevant aspects of the individual case, in particular by not remedying the uncertainties relating to the composition of Synto and by not inquiring sufficiently into the possible access to room G.505. However, such shortcomings, assuming that they may, in some circumstances, diminish the probative value of the evidence accepted by the Commission in the contested decision, could affect the lawfulness of that decision.

78 In the first place, as regards the applicant’s argument that the Commission allowed uncertainties to subsist regarding the composition of the cleaning product used on 30 May 2006, firstly, it must be pointed out that, in recital 85 to the contested decision, the Commission did not simply state that it did not know which product the institute had used for its tests. In that recital, on the one hand, the Commission stated that it was apparent from Kr. report I and Kr. report II that the effect of Synto on the surface of the seal at issue could not have had any impact on its functioning. On the other hand, it rejected the applicant’s assertion that Mr Kr. had not used the original cleaning product in his tests.

79 First of all, the Commission did indeed state that it had obtained from the cleaning company itself exactly the same detergent as that which had been used in the applicant’s rooms during the night of 29 to 30 May 2006 and that only that cleaning product had been used in the different test series. The fact also remains that the assertion, contained in recital 85 to the contested decision, that the Commission did not know which product the institute had used for its tests, is in reply to the applicant’s argument that the institute tested the product which had been sent to it by the applicant and observed that it was a water‑free solvent with 2‑(2‑Butoxyethoxy)ethanol as its main component. However, according to the manufacturer’s product description, Synto Forte, the only variant of Synto which is more or less free of water, is not sold in the bottles of one litre which were used to clean the door of room G.505 and is not used as a cleaning product, but as a stain remover.

80 Secondly, the Commission was not obliged to analyse the composition of Synto, since, in carrying out its tests, it used the Synto used by the cleaning company on the door of room G.505, which was sent to it directly by the cleaning company, a fact which the applicant did not dispute when questioned on this point at the hearing. In addition, it is apparent from the letter of 5 September 2006 sent by the cleaning company to the Commission, and in particular from the reply given by that company to the Commission’s second question, that Synto was indeed used to clean the door of that room. Finally, the safety data sheet on Synto does not mention the presence in Synto of the component. 2‑(2‑Butoxyethoxy)ethanol.

81 Thirdly, the applicant does not dispute that, according to the information on the manufacturer’s internet site, Synto Forte is not sold in the bottles of one litre which were used by the cleaning company. In that regard, the applicant’s arguments to the effect that it is impossible to exclude the possibility that the manufacturer made incorrect statements or that the packaging changed subsequently are unconvincing and, in any case, unsubstantiated.

82 Fourthly, the applicant’s arguments to the effect that it is not inconceivable that the cleaning company had left over some of the more aggressive variant of Synto, which was supposedly used previously, must also be rejected. On the one hand, the applicant does not explain why that variant, which is more harmful to wood surfaces, would have been used to clean the doors of its rooms. On the other hand, it is apparent from recital 85 to the contested decision that the Commission obtained from the cleaning company itself exactly the same cleaning agent as was used in the applicant’s rooms on 30 May 2006 and used only that product in the numerous series of tests. That assertion is not disputed by the applicant.

83 Since the cleaning agent on which the expert authorised by the Commission carried out his tests was precisely the cleaning agent used by the cleaning company during the night of 29 to 30 May 2006, the Commission had no reason to analyse its composition.

84 In the second place, the applicant submits that the Commission infringed the ‘principle of inquisitorial procedure’ by not inquiring into the possibility that the keyholders gave access to room G.505 to third parties and into the possibility that someone entered that room in another way.

85 Under Article 23(1)(e) of Regulation No 1/2003, the Commission may impose fines where, intentionally or negligently, ‘seals affixed … by officials or other accompanying persons authorised by the Commission have been broken’. Thus, under that provision, the onus is on the Commission to prove the breach of seal. On the other hand, it is not its responsibility to demonstrate that the room which had been sealed was actually entered or that the documents stored there were tampered with. In this case, it is apparent from recitals 74 to 76 to the contested decision that the Commission did indeed consider that the seal at issue had been broken. For that purpose, the Commission stated inter alia (recital 74) that ‘[t]he condition of the seal on the morning of 30 May 2006 point[ed] clearly to the conclusion that the seal was removed from the office door during the night, thus allowing the office door to be opened during that period’. In the light of the foregoing considerations, the applicant’s assertions to the effect that the door of the room concerned was neither unlocked nor opened during the night in question, which are purportedly substantiated by the keyholders’ affidavits, are irrelevant.

86 In any event, as pointed out by the Commission, the keyholders’ affidavits, made between 2 September and 22 December 2007, that is, nearly a year and a half after the facts, cannot alter its conclusion in the contested decision as regards the existence of a breach of seal, since, as is clear from the applicant’s replies to its request for information, other persons potentially had access to a key allowing the door of room G.505 to be opened. The Commission was therefore not obliged to inquire into any possibility that the keyholders gave access to the room to third parties or entered room G.505 in another way.

87 In the third place, the applicant clams that the Commission infringed the ‘principle of inquisitorial procedure’ by the framing of question No 6 in the questionnaire for the inspectors, which precluded or influenced the reproduction of the inspectors’ own observations.

88 That argument must be rejected. That question sought to ask the members of the inspection team about indicia which pointed to a finding of breach of seal, in particular in the light of the findings recorded in the breach-of-seal report, namely the presence of ‘VOID’ signs over the entire surface of the seal at issue and the presence of adhesive around and on the back of the seal. The framing of the questionnaire therefore did not preclude the reproduction of the inspectors’ own observations.

89 It is indeed clear from the answers given by the inspectors that the latter did in fact indicate, under question No 6, the elements which they had individually remembered in that regard. Thus, for example, Mr Kl. stated that he had immediately had the impression ‘that the seal had been altered since its affixing [and that he had] recorded in writing the observations allowing such a conclusion and … [had] attached them as an annex to the breach‑of‑seal report’. Mr Ko. stated that he had ‘noticed that the seal was “displaced” and that the “VOID” sign was visible’, but that he had ‘not looked at the back of the seal’. Mr L. for his part indicated that he had ‘personally checked the condition of the seal on the following day’, noting that it ‘was displaced by approximately 2 mm’, but that he had ‘not paid particular attention to the presence of a “VOID” sign on the seal’. Mr N. also indicated that he ‘clearly recall[ed] having observed personally that the “VOID” sign was visible over the entire surface of the seal’ and that ‘the traces of adhesive on the door, in immediate proximity to the edge of the seal, also seemed to point to a breach of seal’. Finally, Mr M. noted that ‘[t]he description in the report [was] accurate’ and that he ‘w[ould] word point (b) more specifically as follows: traces of adhesive on two edges of the seal; these were 1 to 2 mm long fragments of the “VOID” sign’.

90 The second plea must therefore be rejected.

The third plea, alleging an erroneous assumption that the seal was affixed properly

Arguments of the parties

91 The applicant claims that the Commission was wrong to consider, in recital 5 to the contested decision, that it was established that the seal at issue was intact when it was affixed to room G.505 on 29 May 2006 and that it was affixed tightly to the door and door frame when the inspection team left the premises at about 19.30 hrs.

92 Firstly, it is not undisputed that the seal at issue was affixed properly to the door. In its reply to the statement of objections, the applicant already disputed the perfect adhesion of the seal at issue to the surface of the substrate in question. The content of the file supports, at the very most, the conclusion that, in accordance with the superficial impression of the inspectors who were present when the seal was affixed, the seal at issue was stuck to the surface of the substrate in question, which is not sufficient to justify the finding that it was properly affixed. The applicant points out that the technical bulletin explains that this type of seal adheres to various specified surfaces provided that they have been cleaned beforehand. However, no such cleaning was carried out. In addition, the door concerned is made of painted sound‑insulating door leaf panels and the frame of anodised aluminium, materials which are not listed in the technical bulletin.

93 Nor is it established that the seal at issue was detached from its protective liner in accordance with the manufacturer’s instructions. Even 3M acknowledges the possibility of prior damage if the seal were mishandled (recital 60 to the contested decision). It is clear from institute expert opinion III that failure to affix a seal in accordance with the manufacturer’s instructions does not necessarily result in the immediate appearance of ‘VOID’ messages on the seal. Consequently, the assertion that any sign of inadequate adhesion of the seal at issue would have been noticed immediately by those present when the seal was affixed (recital 54 to the contested decision) is irrelevant. In addition, the applicant disputes the fact that the seal at issue was removed properly from its protective liner, that it was able to be affixed without any problem, that it adhered to the door and door frame of room G.505 intact and without any visible ‘VOID’ messages and that it was carefully observed by certain inspectors. The applicant has been unable to verify this and the Commission has not adduced proof of it. It adds that the inspectors’ statements regarding the process of affixing the seal at issue are contradictory.

94 As regards the assertions in recital 56 to the contested decision, the applicant submits that it is unlikely that the manufacturer would give such detailed instructions concerning the handling of the product if they were in any case superfluous. Furthermore, as the manufacturer, 3M has no interest in calling in question the reliability of its product. Consequently, the Commission could not, with sufficient certainty, have established that the seal at issue was ‘intact’ and that it was ‘affixed tightly to the door and door frame of room G 505’ (recital 5 to the contested decision).

95 Secondly, the fact that a representative of the applicant signed the record of sealing on 29 May 2006 confirms only the official affixing of a seal, but not that it was affixed properly, since the applicant was not immediately able to detect any prior damage to or defects in the application of the seal at issue.

96 Thirdly, contrary to what the Commission maintains, its claimed experience and Mr Kr.’s tests are irrelevant. The mere fact that there had allegedly been no problems of adhesion or ‘false positive reactions’ with other seals used since 2004 and originating from the same batch (recital 55 to the contested decision) does not support the conclusion that such a reaction is impossible or unlikely. Mr Kr. himself acknowledged that his analyses did not make it possible to determine to what extent his observations could be generalised. The results of the analyses carried out by Mr Kr. should have been ‘statistically confirmed’.

97 Fourthly, the Commission’s assertion that where the seals are used on ordinary office doors made of (painted) aluminium they can be expected to function properly (recital 56 to the contested decision) is irrelevant, since it has never been established that the door of room G.505 was made of aluminium. Even the frame of the door concerned is not made of painted aluminium, but of anodised aluminium, that is to say, aluminium coated with a protective oxide film for protection against corrosion.

98 The Commission contends that the plea should be rejected.

Findings of the Court

99 It is common ground that on 29 May 2006, at about 19.30 hrs, room G.505 was sealed by means of an official Commission seal. However, according to the applicant, it is not established that that seal was affixed properly. According to the applicant, the sole permissible inference from the superficial impression of the inspectors present during the sealing is that the seal at issue stuck to the surface of the substrate in question. However, it cannot be considered, with sufficient certainty, that the seal at issue, which was intact, adhered firmly to the door and door frame of room G.505 on the evening of 29 May 2006.

100 It must be pointed out that, in the contested decision, the Commission found that ‘[t]he sealing [had] … [taken] place in a proper manner’, that ‘[t]he seal adhered perfectly to the substrate consisting of the door and door frame and [that], after it had been applied …, [it] did not display any VOID markings on its blue and yellow surface’ (recital 50).

101 It relied, for that purpose, in the contested decision (recitals 5, 50 and 51) on the record of sealing and on the replies of six inspectors, who were present when the seal at issue was affixed, to question No 3 of the questionnaire addressed to the inspectors.

102 In the first place, it must therefore be examined whether the evidence mentioned in the contested decision supported the conclusion that the seal at issue was affixed properly.

103 Firstly, it must be observed that the record of sealing notes, on the one hand, that on 29 May 2006 at 19.15 hrs, room G.505 was sealed in accordance with Article 20(2)(d) of Regulation No 1/2003, and, on the other, that a representative of the applicant, Mr P., was informed of the provisions of Article 20(2)(d) and Article 23(1)(e) of Regulation No 1/2003 and of the possibility of the imposition of a fine, in accordance with Article 23(1)(e) of that regulation, where seals are broken either intentionally or negligently. The record was signed by Mr Kl., a Commission official and leader of the inspection team, Mr J., a Bundeskartellamt official, and Mr P., a representative of the applicant.

104 Contrary to what the applicant claims, the record of sealing demonstrates sufficiently that the seal at issue was affixed properly. The record in question certifies sealing ‘in accordance with Article 20(2)(d) of Regulation No 1/2003’, which was acknowledged by a representative of the applicant by affixing his signature, after having been informed of the relevant provisions. Only a proper sealing can be regarded as being in accordance with Article 20(2)(d) of Regulation No 1/2003.

105 In any event, if, on the evening of 29 May 2006, the applicant had observed an irregularity in the affixing of the seal at issue or had observed the appearance of ‘VOID’ signs on it, it may be assumed that it would immediately have made comments in that regard, given that it was perfectly aware of the significance of such signs (see also recital 51 to the contested decision). In addition, as was pointed out by the Commission, the applicant’s security service stated that, on checking the seal at issue, several hours after it had been affixed, no alteration in the seal had been observed during two patrols in building G. The applicant’s argument that the ‘VOID’ messages could have appeared only later, due to prior damage to the seal at issue caused by mishandling, must therefore be rejected.

106 Secondly, it must be observed that the replies of six Commission and Bundeskartellamt inspectors present during the sealing, to which the Commission refers in recitals 5 and 50 to the contested decision, confirm that the seal at issue was affixed properly.

107 Thus, Mr Kl., a Commission official and leader of the inspection team, stated that he was ‘absolutely certain that the seal was intact [… and that he had] personally taken special care in satisfying [him]self that it was’. He added that the seal at issue ‘adhered firmly to the door and door frame and [that] no “VOID” messages were visible’.

108 Similarly, Mr L., a Commission official, stated that he ‘[was] certain that the seal was intact when [the inspectors] left the building [and that they had] again had a good look at the seal and checked that it was well installed’.

109 Ms W., a Commission official, confirmed for her part that ‘[i]t was certain [that the seal] adhered correctly to the door[, that the] affixing ha[d] been correctly carried out [… and that] the seal seemed “normal”’. She added that the seal at issue ‘ha[d] been correctly placed on the door, [that it] had the normal dark blue and yellow colours [and that] no “VOID” message was visible’.

110 Mr N., a Bundeskartellamt official, explained that he had ‘personally observed that the seal was intact when the inspection team left the building [… and that he had] taken an even closer look at it’.

111 Mr M., a Bundeskartellamt official, stated that, ‘after Mr [Kl. had] affixed the seal, several officials, including [himself], had checked that the seal was affixed correctly’. He added that, ‘[w]hen the inspection team, including the Bundeskartellamt officials, left the corridor where the sealed room is situated, the seal was intact’. He claimed to have ‘observed [it] for [him]self’.

112 Finally, Mr B., a Bundeskartellamt official, confirmed that ‘Mr [Kl.], and other members of the team as well as [him]self, [had] checked that the seal had been correctly affixed [and that he had] personally observed that the seal was intact when the inspection team left the building’.

113 Thirdly, it must be observed that the replies to question No 3 in the Commission’s questionnaire of the other four inspectors, who had participated in the inspections at the applicant’s premises, do not call in question the probative value of the abovementioned evidence. One inspector claims not to have participated in the sealing whereas three inspectors provided further indications that the seal at issue was affixed properly and therefore confirmed the essential content of the evidence on which the Commission relied in the contested decision.

114 Thus, Mr K. stated that, ‘when [he had seen] it for the last time, the seal was intact’. Mr Me. confirmed for his part that ‘[he had] checked, at least mechanically, that the seal was intact’. Finally, Mr J. maintained that, ‘[a]s far as he remembered, the seal was intact when the inspection team left that wing of the building on 29 May 2006’.

115 It follows from the foregoing that the evidence on which the Commission relied in the contested decision supported the finding that the seal at issue had been affixed properly on 29 May 2006, that it therefore adhered to the door and door frame of room G.505 and that it was intact, inasmuch as it was not showing ‘VOID’ messages at the time when the inspection team left the applicant’s premises.

116 In the second place, it must be examined whether the circumstances alleged by the applicant are such as to call in question the probative value of the abovementioned evidence. The applicant refers for that purpose to the fact that, firstly, the door and door frame of room G.505 were not cleaned before the seal at issue was affixed, secondly, the materials of that door and door frame are not listed in the technical bulletin and, thirdly, it is not established that the seal at issue was detached from its protective liner in a manner complying with the manufacturer’s instructions.

117 Firstly, it must be observed that, in the contested decision, the Commission explained that its representatives and those of the Bundeskartellamt had ‘checked that the [substrate] was clean, so that particular cleaning of the relevant door and door frame was not necessary’ (recital 49).

118 Although it is, admittedly, recommended in the technical bulletin that the surface of the substrate be cleaned before the seal is affixed, the fact remains that that recommendation is linked to the fact that a contaminated surface could affect the adhesive force of the seal, with the result that the ‘VOID’ signs could fail to appear in the event of a breach of seal. The technical bulletin expressly states that ‘[a]ny surface contamina[nt] will adversely affect the adhesion [of the seal] and the destruct message’. The seal manufacturer, 3M, also expressly confirmed that the recommendation relating to prior cleaning of the surface of the substrates referred to primarily concerned cases in which such a surface is contaminated by oil or grease. Dust normally found in an office does not, according to the manufacturer, affect the performance of the seals.

119 However, the applicant, on which the burden of proof of the circumstances alleged by it rests, has not established that, on the evening of 29 May 2006, the door and door frame of room G.505 were covered with contaminants other than dust normally found in an office. Nor, moreover, has it established that, on the evening of 29 May 2006, the condition of the surface of the door and door frame in question was such that it could normally have affected the performance of the seal at issue. On the contrary, it may be assumed that the door of room G.505 was properly cleaned by the cleaning company. In those circumstances, the applicant’s first argument must be rejected.

120 Secondly, as regards the applicant’s arguments relating to the materials of which the door and door frame of room G.505 are made, it must be observed that the Commission noted, in recital 56 to the contested decision, that, ‘where the seals are used on ordinary office doors made of (painted) aluminium, they [could] be expected to function properly’. The Commission pointed out that ‘[t]his [had been] unequivocally confirmed by the tests carried out by [its …] appointed expert, both in situ and in the laboratory, on the sealing products and their adhesion behaviour on the substrate actually present’.

121 The applicant asserts that the frame of the door concerned is not made of painted aluminium, but of anodised aluminium. However, the applicant, on which the burden of proof of the circumstances alleged by it rests, does not put forward any evidence which would permit the inference that the fact that the door frame is made of anodised, and not painted, aluminium might have had any effect on the performance of the seal at issue.

122 In any event, 3M stated, in its reply to the Commission’s request for information, that the adhesive used in that type of seal was suitable for practically all substrates, so that the list of possible substrates in the technical bulletin (stainless steel, acrylonitrile-butadiene-styrene (ABS), polypropylene, painted metal, polyester, high-density polyethylene (HDPE), nylon, glass, polycarbonate) was not exhaustive, but was intended to provide an approximate indication of the nature and range of substrates on which the product could be used. 3M also stated that such a seal would function properly on aluminium and painted aluminium doors, while pointing out that, if a seal did not adhere sufficiently to the substrate, the ‘VOID’ messages could not appear if it was displaced, which was not the case here. The observations contained in Kr. report I and those of Mr Kr. of 9 July 2008 also confirm those statements. In those circumstances, the applicant’s second argument must be rejected.

123 Thirdly, as regards the fact that it is allegedly not established that the seal at issue was detached from its protective liner in a manner complying with the manufacturer’s instructions, it is sufficient to observe that the applicant has not adduced any evidence of the truth of that alleged fact, with the result that that argument must be rejected. In any event, according to 3M, any damage to the product when detaching its protective liner would have had the effect of causing the ‘VOID’ messages to appear even before the seal was affixed to the substrate, whereas there is no possibility of a ‘false positive reaction’ occurring subsequently. Kr. report I also rejected the relevance of the speed of separation between the seal at issue and the protective liner as regards the appearance of ‘VOID’ messages or the fact that those messages might appear only after a certain period of time. In those circumstances, the applicant’s third argument must also be rejected.

124 It is apparent from all the foregoing that the third plea cannot be upheld.

The fourth plea, alleging an erroneous assumption of the ‘obvious condition’ of the seal at issue on the day following the inspection

Arguments of the parties

125 The applicant submits that the Commission was wrong to consider, in the contested decision (recitals 9, 24, 55, 61 and 75), that, on 30 May 2006, ‘VOID’ messages were visible over the entire surface of the seal at issue.

126 Firstly, according to the perception of the applicant’s representatives, the ‘VOID’ messages were only very faintly visible and certainly not over the entire surface of the seal at issue. A Bundeskartellamt official also stated, in reply to the Commission’s questionnaire, that ‘in some places, the “VOID” sign was appearing faintly through the paper’. The members of the inspection team and the applicant’s representatives initially had doubts as to the existence of any alteration of the seal at issue. The applicant proposes for that purpose, that the oral testimony of its lawyer be heard, pursuant to Article 65(c) of the Rules of Procedure.

127 The fact that the inspectors sought to make a comparison of the condition of the seal at issue with that of the seals affixed in other parts of the building (recital 76 to the contested decision) confirms that the ‘VOID’ messages were by no means clearly visible over the entire surface of the seal at issue. In any event, in that regard, there can be no question of a perfectly convergent perception on the part of all the officials present. Furthermore, certain inspectors’ statements conflict with the breach-of-seal report.

128 Secondly, the Commission wrongly relied on the photographs of the part which remained stuck to the frame of the door of room G.505 and which were taken with a mobile telephone only during the afternoon of 30 May 2006. In that regard, the Commission’s assertion that, on the morning of 30 May 2006, the door of room G.505 was opened by the leader of the inspection team without further damaging the seal at issue (recital 10 to the contested decision) is incorrect. The act of detaching the seal at issue from the door would have been bound to damage the seal’s adhesive surface. As the inspection continued intensively from 09.30 hrs and the door of room G.505 was therefore regularly being opened and closed, the seal at issue became detached and was reaffixed on several occasions. It is inevitable that the resultant tensile and shearing stresses caused some displacement of the seal at issue which would have had the effect of making the ‘VOID’ messages appear. Moreover, after the continuation of the inspection, the seal at issue was no longer constantly monitored and it is impossible to rule out the possibility that it may have been touched or tampered with in any other way.

129 Against that background, it is contradictory for the Commission, on the one hand, to take the view that the mere appearance of ‘VOID’ messages is sufficient for it to be considered that there was a breach of seal and, on the other, to maintain that it could not have concluded definitively that a breach of seal had occurred without additional detachment of the seal at issue. It is also contradictory that, according to the statements of certain inspectors, ‘VOID’ messages were visible over the entire surface of the seal at issue, but only after its detachment.

130 As regards its reply to question No 15 in the Commission’s request for information, cited by the Commission, the applicant points out that it concerns only the visibility of the ‘VOID’ messages on the door and door frame of room G.505 after the door was opened by the inspectors and not the visibility of the ‘VOID’ messages on the seal at issue from the time of first observation on the morning of 30 May 2006. By stating that the ‘VOID’ messages are more or less contrasting, depending on the substrate, and appear to be the same colour as the seal at issue, which renders close observation necessary, the Commission confirmed that the ‘VOID’ messages were only very faintly visible, in fragments and not over the entire surface of the seal at issue.

131 The supplementary declaration to the report of 30 May 2006 has no evidential value as regards the condition of the seal at issue on the morning of 30 May 2006. It contains no statement in that regard and merely supplements some of the Commission’s own observations as regards the condition of the seal at issue after the opening of the door of room G.505.

132 Finally, the Commission does not explain how the ‘VOID’ messages appeared over the whole of the seal at issue whereas, in any event, the part of the seal at issue which was stuck to the door frame of room G.505 was not detached. According to the Commission’s account, the ‘VOID’ messages can appear only if the seal is detached (recital 75 to the contested decision). At the same time, it is practically impossible to reaffix the seal in exactly the same place, so that detachment inevitably results in traces of adhesive on the back of the seal (recital 74 to the contested decision). However, no such traces of adhesive were found on the part of the seal at issue on the frame side of the door in question. On the contrary, after the definitive detachment of the seal at issue, the ‘VOID’ messages in that location were intact and there were no residues of adhesive on that part (recital 13 to the contested decision). If, however, the part of the seal at issue which was stuck to the door frame had not been detached, it would then be impossible to explain how visible ‘VOID’ messages appeared on it. The Commission’s account, according to which ‘VOID’ messages were visible over the entire surface of the seal at issue, therefore necessarily implies that this was a ‘false positive reaction’.

133 The Commission disputes the applicant’s arguments.

Findings of the Court

134 It must be observed that, in the contested decision, the Commission considered that ‘[t]he condition of the seal on the morning of 30 May 2006 point[ed] clearly to the conclusion that the seal [had been] removed from the office door during the night, thus allowing the office door to be opened during that period’ (recital 74).

135 It relied for that purpose, in the contested decision, on the breach‑of‑seal report and on the replies of eight inspectors, who were present at the time of the finding of the breach of seal (recitals 8, 12, 75 and 76). It also observed, in recital 13 to the contested decision, that the applicant’s in-house and external representatives who were present on that day during the inspection had not disputed the alteration in the condition of the seal at issue, but had refused to sign the breach‑of‑seal report.

136 In the first place, it must therefore be examined whether the evidence relied on by the Commission in the contested decision supported the conclusion that a breach of seal had been found.

137 Firstly, as is clear from recital 7 to the contested decision, unlike a paper seal, a breach of seal in the case of a plastic seal, such as the seal at issue, is not shown by a tear. Once affixed, a plastic seal can no longer be removed from its substrate without its removal remaining visible. It is impossible to reaffix it without leaving traces. Once the product is removed, the white adhesive remains on the substrate in the form of ‘VOID’ messages about 12 Didot points (approximately 5 mm) high distributed over the entire surface of the adhesive label. The removed seal becomes transparent at these points, so that the ‘VOID’ messages are clearly visible on the seal as well. In view, in particular, of the large number and size of the ‘VOID’ messages, it is impossible in the final analysis to affix the seal in exactly the same position as that in which it was located previously. Even if that is accomplished, the ‘VOID’ signs remain clearly visible.

138 In that regard, it must be observed that the breach‑of‑seal report (see paragraph 9 above) states, on the one hand, that the entire seal was displaced by about 2 mm upwards and sideways so that traces of adhesive were visible at the lower and right-hand edges of the seal, and, on the other, that the ‘VOID’ message was clearly visible over the entire surface of the seal, which was nevertheless still affixed crosswise from the door to the door frame of room G.505 and was not torn. Thus, contrary to what the applicant maintains, the findings in that report, signed by Mr Kl., a Commission official and leader of the inspection team, and by Mr J., a Bundeskartellamt official, demonstrate sufficiently the existence of a breach of seal.

139 Secondly, it must be observed that the replies of the eight inspectors present during the finding of the breach of seal, to which the Commission referred in recital 75 to the contested decision, confirm that conclusion.

140 Thus, Mr Kl., a Commission official and leader of the inspection team, stated that ‘this [had] immediately [given] the impression that the seal had been altered since its affixing’. He indicated that he had ‘recorded in writing the observations authorising such a conclusion’ and that he had ‘attached them as an annex to the breach‑of‑seal report’.

141 Similarly, Mr Ko., a Commission official, stated ‘[that he had] noticed that the seal was “displaced” and that the “VOID” message was visible’.

142 Ms W., a Commission official, also confirmed that she had noticed that ‘the seal did not have the same appearance as on the previous evening’, that the ‘VOID’ message was legible over the entire surface of the seal at issue and that there were 2 mm traces of adhesive on the perimeter and on the back of the seal at issue next to the ‘VOID’ messages. She added that ‘the seal was not the same dark blue colour as before because the “VOID” messages were visible’.

143 Mr N., a Bundeskartellamt official, explained that he ‘recall[ed] perfectly that the “VOID” message was visible over the entire surface of the seal [and that] the traces of adhesive on the door, in the immediate proximity of the edge of the seal, also seemed to point to a breach of seal’.

144 Mr M., a Bundeskartellamt official, stated that ‘[t]he description contained in the report [was] accurate [and that he] w[ould] word point (b) more specifically as follows: traces of adhesive on two edges of the seal; these were 1 to 2 mm long fragments of the “VOID” sign’.

145 Similar observations were made by Mr Me., Mr J. and Mr B., Bundeskartellamt officials.

146 It follows from the foregoing that the evidence on which the Commission relied in the contested decision (recitals 8, 9, 74 and 75) supported the conclusion that the seal at issue had been removed from the door of room G.505 during the night of 29 to 30 May 2006 and that that door could therefore have been opened during that period, in the light of the ‘VOID’ messages over the whole surface of the seal at issue and of the presence of traces of adhesive close to and on the back of that seal on the morning of 30 May 2006. There is therefore no need to rule on the applicant’s claim that the ‘VOID’ messages on the door frame were completely ‘intact’, which means that the part of the seal at issue located on the door frame, although it had not been detached, showed ‘VOID’ messages and pointed to a ‘false positive reaction’. In any event, as the Commission pointed out, it has never adopted the views expressed by the applicant in point 2 of the supplementary declaration of 31 May 2006 (see paragraph 12 above). In addition, the mere assertion by the applicant that ‘the “VOID” message on the frame was completely intact’ cannot, in itself, demonstrate the existence of a ‘false positive reaction’ of the seal at issue.

147 In the second place, it must be examined whether the circumstances alleged by the applicant are such as to call in question the probative value of the abovementioned evidence. The applicant refers for that purpose to the fact that the ‘VOID’ messages were only very faintly visible, and certainly not over the entire surface of the seal at issue, and to the fact that the Commission wrongly relied on the photographs, taken on the afternoon of 30 May 2006, of the part of the seal at issue which remained stuck to the frame of the door of room G.505.

148 Firstly, in order to maintain that the ‘VOID’ messages were only very faintly visible, and only on one part of the seal at issue, the applicant relies on the fact that a Bundeskartellamt official stated that, in some places, the ‘VOID’ sign was appearing faintly through the paper and on the fact that the members of the inspection team and the applicant’s representatives initially had doubts as to the existence of an alteration of the seal at issue, which is purportedly attested by a visual comparison which was made between the condition of the seal at issue and the condition of the seals affixed in other parts of the building. Furthermore, certain inspectors’ statements allegedly conflict with the breach‑of‑seal report.

149 First of all, it must be stated that the applicant does not dispute that the ‘VOID’ messages were in fact visible on the seal at issue or, at least, on one part of it, during the morning of 30 May 2006. Nor does the applicant dispute that there were traces of adhesive below and to the right of it. As 3M confirmed in its reply to the Commission’s request for information of 5 September 2006, the appearance of the ‘VOID’ messages indicated that the adhesive label had been displaced. It follows that the Commission was fully entitled, in the breach‑of‑seal report, to find that the seal at issue had been broken. Furthermore, as the Commission has pointed out, although the findings relating to the appearance of the ‘VOID’ messages were set out in the breach‑of‑seal report, the applicant did not, in its supplementary declaration to the breach‑of‑seal report, make any observations in that regard (recital 13 to the contested decision).

150 Next, the condition of the seal at issue was confirmed by the statements of the eight inspectors present on the spot (see paragraph 139 above). In that regard, the applicant’s assertion that the statements of certain inspectors contradict the findings of the breach‑of‑seal report cannot be accepted. Thus, neither the statement of Ms P., that, ‘in some places, the “VOID” sign was appearing faintly through the paper’, nor the assertions of Mr L., that he saw square marks on the door on the left‑hand side of the seal at issue and did not pay particular attention to the fact that a ‘VOID’ sign was appearing on the seal at issue, do not call in question the finding of the appearance of the ‘VOID’ messages on the seal at issue, and are not such as to invalidate either the findings contained in the breach‑of‑seal report or all the other inspectors’ statements to which reference is made in paragraphs 140 to 145 above.

151 Finally, as regards the comparison between the condition of the seal at issue and the condition of the seals affixed in other parts of the building, which points, according to the applicant, to the existence of doubts regarding the alteration of the seal at issue, it must be held that, as the Commission explained in recital 76 to the contested decision, since this case of a breach of seal was the first and was not a breach of seal by tearing, it seems reasonable that the inspectors checked by comparing it with the other seals. In any event, the fact that the inspection team conducted a comparison between the seal at issue and the seals affixed in other parts of the building cannot affect the findings relating to the physical condition of the seal at issue, as recorded in the breach‑of‑seal report, and, therefore, the applicant’s claim is irrelevant.

152 Secondly, as regards the argument that the Commission wrongly relied, in order to establish the condition of the seal at issue, on photographs taken with a mobile telephone on the afternoon of 30 May 2006, it is clearly based on an erroneous premiss.

153 It is apparent from recitals 74 and 75 to the contested decision that, in order to establish that a breach of seal had occurred, the Commission relied on the condition of the seal at issue on the morning of 30 May 2006, which showed inter alia ‘VOID’ messages over its entire surface. As regards the proof of that finding, the Commission stated, in recital 76 to the contested decision, that the leader of the inspection team and a representative of the Bundeskartellamt had drawn up the breach‑of‑seal report in the presence of representatives of the applicant. It also added that the condition of the seal at issue, which is described in that report, in particular the appearance of the ‘VOID’ messages over a large part of its surface, had been unanimously confirmed by the inspection team when questioned on that point. As pointed out in paragraph 146 above, that evidence is sufficient to prove the infringement.

154 Against that background, without there being any need to rule on the evidential value of the photographs of the seal at issue, the applicant’s arguments regarding the fact that those photographs were taken by the Commission after the door of room G.505 had been opened are not such as to call in question the probative value of the evidence mentioned in paragraph 153 above and must be rejected.

155 It follows from the foregoing that the applicant, on which the burden of proving the circumstances alleged by it rests, has not established the unlawfulness of the finding of the breach of seal on the morning of 30 May 2006.

156 In those circumstances, the applicant’s fourth plea must be rejected.

The fifth plea, alleging an erroneous assumption of the suitability of the security label for official sealing by the Commission

Arguments of the parties

157 The applicant submits that the Commission erred in considering that the security label was suitable for official sealing in an investigation procedure.

158 Firstly, the security label was designed to prove that a ‘secured container or product’ has under no circumstances been opened. In that regard, the user of a security label accepts that, in the event of a positive reaction of the security label, it is not possible to know, a posteriori, whether it is a case of a ‘false positive reaction’ or whether there has actually been tampering with the product in question.

159 By contrast, in proceedings conducted pursuant to Regulation No 1/2003, it is not appropriate to make the undertaking concerned bear the risk of a ‘false positive reaction’, in particular in the light of the fines incurred for breaches of seal. The Commission should use a label in regard to which the appearance of ‘false positive reactions’ is precluded from the outset.

160 The Commission cannot rely on the assertion by 3M that, to date, it has not had a single complaint about poor performance of labels of the security label type (recital 55 to the contested decision), since the users of such labels would have reason to submit a complaint only in the event of a ‘false negative reaction’.

161 Secondly, the applicant maintains that the date of expiry of the seal at issue was exceeded. However, the institute’s expert opinions show that the more the security label ages, the less reliable it is and the more sensitive to ‘external influences’ it becomes.

162 Even though, in its reply to the request for information of 8 December 2006, 3M intimated for the first time that the security label is likely to function correctly after a storage period of more than two years, 3M avoids taking a definitive view on the length of the security label’s maximum shelf life. In addition, by minimising the effects of time on the security label, 3M fails to have regard to the current state of science and technology in the field of signs of ageing on pressure‑sensitive adhesives. In any event, information supplied by the manufacturer cannot provide any proof as to the effectiveness of the seal at issue at the precise material time and cannot take the place of an assessment by a ‘neutral expert’. The results of Mr Kr.’s expert assessments do not remove the doubts regarding the effectiveness of the seal at issue, since they fail to take into account not only the effect of time or Synto on the seal, but also the consequences of its being under tension for a long period in the area of the crack between door and door frame, in the event of the door being subjected to sustained vibrations and simultaneous shearing stresses.

163 As regards the Commission’s criticisms relating to the ageing simulation used by the institute, the applicant claims that it satisfies scientific requirements. Ageing accelerated by a slight rise in temperature was necessary, otherwise ageing could not be measured.

164 Thirdly, 3M’s refusal to acknowledge the possibility of the existence of ‘false positive reactions’ (recital 68 to the contested decision) is irrelevant and in any event unsubstantiated. The possible absence of customer complaints about ‘false positive reactions’ is not sufficient to justify the claim that such reactions are impossible. In addition, 3M’s statements relating to the unlimited shelf life of the seal are not credible and contradict the particulars in the technical bulletin. Moreover, it is clear from that bulletin that, where there is a risk of considerable economic damage, the security label is not, on its own, a suitable means of security. In that regard, 3M recommends the use of additional means of security in cases where serious consequences could arise and the Commission could therefore have used several seals per door. The Commission should be held responsible for the consequences of the fact that no additional measures were adopted by it and for the problems of proof arising from that.

165 The Commission disputes the applicant’s arguments.

Findings of the Court

166 By its plea, the applicant seeks to demonstrate that the security label was designed to prove that a ‘secured container or product’ has under no circumstances been opened. It claims that the seal is nevertheless not suitable for official sealing in the context of a Commission investigation in the field of competition law.

167 In the first place, it should be noted that it is apparent from the technical bulletin that this product line was designed to indicate tampering by self‑destructing when an attempt is made to remove the label. However, that is precisely the use to which this type of security label is put by the Commission in its investigations. Admittedly, under the heading ‘Application ideas’, 3M suggests, for such a security label, the following applications: ‘non‑transferable labels for automotive, appliance and electronics industries; tamper‑indicating labels and seals for over‑the‑counter drugs and other packaging applications’. However, the fact that the use by the Commission of the security label in its investigations does not expressly appear in the technical bulletin cannot be construed as excluding such a use of the security label, since the list of applications suggested by the manufacturer is not exhaustive. In any event, the applicant does not adduce proof that the use of this type of security label in the context of such investigations is inappropriate.

168 Although, admittedly, as the applicant points out, the manufacturer recommends the use of additional methods of security in combination with its product in instances where ‘the consequences of tampering could be severe, such as … significant monetary loss’, it must be stated that, as is apparent from the safety data sheet, that type of measure is recommended to the extent that 3M cannot exclude the possibility of a ‘false negative reaction’.

169 In the second place, as was stated in paragraph 103 above, the record of sealing refers to the affixing of the seal at issue, in accordance with Article 20(2)(d) of Regulation No 1/2003, and to the possibility of the imposition of a fine, in accordance with Article 23(1)(e) of that regulation, where seals have been broken intentionally or negligently. In addition, a sealing in accordance with Article 20(2)(d) of Regulation No 1/2003 was recognised by a representative of the applicant by signing the record of sealing. As was noted in paragraph 104 above, only the affixing of a seal suitable for such a use can be regarded as being in accordance with Article 20(2)(d) of Regulation No 1/2003. Thus, if the applicant had had doubts as to the suitability of the security label used by the Commission for sealing in accordance with the abovementioned provision, it may be assumed that it would immediately have raised objections in that regard at the time of affixing the seal at issue, the significance of which it was well aware. However, the applicant did not make any observations of that type.

170 In the third place, so far as concerns the applicant’s arguments relating to the use beyond the date of expiry of the seal at issue, which allegedly affected its sensitivity to ‘external influences’, to sustained vibrations of the door, to simultaneous shearing stresses and to the use of Synto, it must be held that those arguments do not concern the suitability of the security label for official sealing, but rather the alleged disregard by the Commission of ‘alternative scenarios’ which may have been the cause of the condition of the seal at issue found on 30 May 2006, which is covered by the applicant’s sixth plea. Reference is therefore made to the considerations relating to the examination of that plea.

171 It follows from the foregoing that the fifth plea must be rejected.

The sixth plea, alleging disregard by the Commission of ‘alternative scenarios’ which may have been the cause of the condition of the seal at issue

Arguments of the parties

172 The applicant claims that, having regard to the principle of in dubio pro reo, the Commission has not adduced sufficient proof of a breach of seal.

173 In the first place, the applicant submits that, in the light of the institute’s expert opinions, it has demonstrated that ‘external influences’ other than detachment of the seal at issue may have caused the appearance of ‘VOID’ messages on it.

174 Firstly, the applicant claims that the maximum shelf life of the seal at issue was exceeded. The applicant’s experts demonstrated that the reliability of the security label decreases with the passage of time and that its sensitivity to ‘external influences’ increases as a result. It is established, in this case, that the seal at issue exceeded by at least a year and a half the maximum shelf life stated by the manufacturer.

175 Secondly, the applicant alleges the decisive influence of Synto. In its reply to the request for information of 9 August 2006, the applicant already explained that the cleaning company’s employee did not exclude the possibility that she may have rubbed the seal at issue with a cloth soaked with Synto. Institute expert opinion III demonstrates a reduced performance of the security label and an increased tendency for it to produce ‘false positive reactions’ when that label has previously been rubbed with Synto. In connection with the security label’s being brought into contact with Synto, institute expert opinion II also raises the possibility of a phenomenon of creeping of the security label as a result of tensile and compressive shearing stresses.

176 The applicant also points out that the microfibre cloth used was, according to the statement made by the cleaning company’s employee, extremely wet when it was wiped over the seal at issue, with the result that contact of the latter with a large quantity of Synto cannot be excluded. Contrary to what the Commission suggests, the institute’s tests were carried out with Synto and not with Synto Forte. The name of the product in question does not give any indication of its actual composition in that regard. Whilst, admittedly, institute expert opinion II does contain references to Synto Forte, the detergent used was Synto. The applicant disputes the result of Mr Kr.’s reports, according to which Synto does not alter the effectiveness of the seal. Mr Kr. did not examine how lateral penetration of Synto under the label acts over a prolonged period in the event of tangential forces, which may lead to traces of adhesive next to the seal. He did not exclude the possibility that the combined effect of Synto on the seal’s acrylic adhesive, which is sensitive to humidity, and of a small mechanical load could have led to the formation of ‘VOID’ messages on the seal at issue.

177 Thirdly, the applicant refers to the decisive influence of air humidity. It is clear from institute expert opinion III that an air humidity greater than 60% has a considerable effect on the p