Summary of the Commission Decision of 30 January 2008 relating to a proceeding under Article 23(1) of Council Regulation (EC) No 1/2003 (Case COMP/B-1/39.326 — E.ON Energie AG)
Date: 2008-01-30
Institutions: European Commission
Subjects: competition law, confidentiality, dominant position, energy industry, fine, offence, restriction on competition

C 240/6

EN

Official Journal of the European Union

19.9.2008

Summary of the Commission Decision

of 30 January 2008

relating to a proceeding under Article 23(1) of Council Regulation (EC) No 1/2003

(Case COMP/B-1/39.326 — E.ON Energie AG)

(Only the german text is authentic)

(2008/C 240/06)

On 30 January 2008, the Commission adopted a decision relating to a proceeding under Article 23(1) of Council
Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in
Articles 81 and 82 of the Treaty (1). A non-confidential version of the full text of the decision can be found in the
authentic language of the case on the website of the Directorate-General for Competition, at the following address:

http://ec.europa.eu/comm/competition/antitrust/cases

The decision concerns an EUR 38 million fine imposed on
E.ON Energie AG (EE) under Article 23 of Regulation (EC)
No 1/2003 for breaking a seal affixed by the Commission
during an inspection in May 2006. EE is headquartered in
Munich, Germany, and belongs to the E.ON group. This is the
first case in which the Commission has fined a company under
the said Article 23.

1. SUMMARY OF THE FACTS

Having come across evidence of anticompetitive practices by the
E.ON group, the Commission on 29 May 2006 carried out an
unannounced inspection at the premises of EE and of other
E.ON group companies. On the evening of the first day of the
inspection, the inspection team placed a large number of docu-
ments, uncopied and only partly catalogued, in a room made
available to the Commission by EE for that purpose. The leader
of the inspection team locked the room with a key provided by
EE and affixed an official Commission security seal to the door
and door
room against
unauthorised access. EE was informed of the significance of the
seal and of the possible consequences of breaking it.

to secure

in order

frame

the

When the inspection team returned at around 8.45 on 30 May
2006, it found in the presence of company representatives and
lawyers representing EE that the ‘VOID’ message was clearly
evident over the entire surface of the seal affixed the previous
evening. Furthermore, the seal had been displaced by about
2 mm upwards and sideways, as was evident from the fact that
traces of adhesive were to be seen on the door and door frame.
After the seal was detached, traces of adhesive (remains of the
‘VOID’ message) were also evident on the rear of the seal, which
was likewise evidence of a breach of seal.

Once the door to the room was opened, the inspection team
was unable to ascertain whether the documents stored there
were still complete.

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

2. COURSE OF THE PROCEEDINGS

In order to clarify the facts, the Commission sent requests for
information to 1. EE; 2. the manufacturer of the label stock
material, 3M Europe SA/NV (3M); 3. the cleaning firm which
cleans EE's premises; and 4. the security firm which looks after
the security of EE's premises. As a possible explanation for the
change in the seal, EE suggested that a ‘partial loosening of the
seal’ might have occurred as a result of ‘poor adhesion of the
seal to the surface (e.g. because of the building materials used)’.
EE also stated that a cleaner working for the cleaning firm had
wiped the seal with a damp microfibre cloth and cleaning
product and might possibly have displaced the seal slightly as a
result. Lastly, EE asserted that, during the night in question, no
unauthorised access
to the building had been observed,
although, besides the key that had been entrusted to the leader
of the inspection team, other keys to the room in question were
in circulation.

In it,

On 2 October 2006, the Commission sent EE a statement of
objections.
the Commission came to the preliminary
conclusion that the seal had been broken and that such breach
had to be attributed to EE because of its organisational control
of
the relevant office building. The Commission remarked
further that the proper functioning of the seal had not been
affected by the fact that the official guarantee period (‘shelf life’)
of the seal had expired. In particular, the possibility that a defec-
tive seal had led to the ‘VOID’ message appearing (‘false posi-
tive’) was excluded. If anything, a defective seal would have
resulted in a false negative, that is to say, in the event of the seal
being broken no ‘VOID’ message would have appeared.

The Commission granted EE access to the file. On 13 Novem-
ber 2006, EE replied to the statement of objections, arguing that
the Commission's
exposition was based on incorrect or
unsound, i.e. scientifically and technically unsubstantiated, facts.
the oral hearing on 6 December 2006, EE used video
At
evidence which it had produced itself to demonstrate how, in its
view, external
factors such as vibrations in the office wall
(caused, for instance, by shaking of the locked door), possibly
combined with other factors (such as a lack of prior cleaning of
the substrate), could have resulted in the ‘VOID’ markings. It
should be stressed, however, that the video did not show any
extensive ‘VOID’ markings such as had been observed on 30 May
the interface
2006, but merely showed ‘VOID’ markings at

19.9.2008

EN

Official Journal of the European Union

C 240/7

between door and frame, where there was some play in the seal.
EE proposed that further tests be carried out to determine the
performance of the seal.

In March 2007, EE sent the Commission an expert opinion
drawn up by a scientific institute on ‘investigations into the reac-
tion of sealing films to shearing and peeling forces’. Three
months later EE sent a further expert opinion on ‘investigations
into the reaction of sealing films to pulling shearing stresses,
compression shearing stresses and peeling stresses following the
use of Synto’. Both expert opinions were based on tests of 3M's
standard label stock 7866, as used for the Commission's seals
and as available commercially. The experts came to the conclu-
in combination with the
sion that vibrations in the wall,
cleaning product and other factors, could lead to a ‘false posi-
tive’ (some occurrence of ‘VOID’ markings and traces of adhe-
sive on the edges of the seal). The Commission found, however,
that the tests had been carried out under fundamentally different
conditions from those obtaining on the spot during the inspec-
tion. It also found that there was no evidence whatsoever of an
occurrence of ‘VOID’ markings over the entire surface of the
seal. 3M confirmed, moreover, that the shelf life of the Commis-
sion's seals far exceeded their guaranteed shelf life and that the
‘VOID’ message was proof as it were that the seal had performed
properly.

In its decision defending its viewpoint, the Commission also
relied on expert opinions by its own expert. In April 2007, this
expert carried out appropriate tests on a few seals in EE's office
building in Munich in the presence of EE representatives and of
two external experts acting on behalf of EE. The tests were
carried out on the door to which the seal had been affixed on
29 May 2006. In addition, the expert carried out further tests in
his laboratory. In his expert opinion of May 2007, the expert
confirmed that the performance of the seal had been affected
neither by the fact that the manufacturer's guarantee period had
expired nor by the fact that the inspection team had omitted to
test the seal beforehand or to clean the relevant door. He also
confirmed that the hypothesis of the occurrence of a false posi-
tive result, with the ‘VOID’ markings becoming apparent under
the influence of office cleaning products and vibrations in the
walls even without any removal of the seal, was unrealistic. He
concluded that the appearance of the ‘VOID’ markings could
realistically be explained only by a breach of the seal and that
the seal had therefore been removed and replaced.

In a letter of facts dated 6 June 2007, to which the expert
opinion was attached, the Commission informed EE of these
additional findings and of the conclusions drawn therefrom. EE
replied by letter dated 6 July 2007, expressing continued doubts
about the performance of the seal. It argued that the Commis-
sion could not entirely rule out other explanations for the
tampered state of the seal. It maintained that the number of
seals tested by the Commission's expert was too small. For the
reasons set out above, the Commission was not swayed by these
arguments.

In October 2007, EE submitted a further expert opinion,
the seal could possibly be
claiming that

the condition of

explained by the influence of humidity or a combination of
various factors (ageing of the seal, the effect of the cleaning
product, etc.) on the seal. The Commission's expert demon-
in a further study carried out in November
strated, however,
2007 that humidity or a combination of humidity and other
factors could not have caused any malfunctioning of the seal.
He also highlighted numerous weaknesses
in EE's expert
opinion, the assumptions underlying which differed considerably
the
from the realities on the ground. EE was informed of
expert's findings in a further letter of facts, after which it raised
no more arguments questioning the Commission's conclusions.
The sworn statements by key holders presented by EE in
January 2008 to the effect that in any event they themselves
had not opened the door added nothing of significance.

3. CONCLUSION

It is thus clear that the seal which was affixed on the first day of
the inspection on the premises of EE was broken within the
meaning of Article 23 of Regulation (EC) No 1/2003. That
provision does not require proof that the door was actually
opened or that documents placed in the sealed room were
removed. Realistically, an intentional breach of seal took place.
At the very least, a negligent breach of seal took place, it being
the entire responsibility of EE to order its affairs in such a way
that the injunction not to break the seal was obeyed. In this
connection the Commission has established that EE did not
inform every employee with access to the building — such as,
for example, the cleaners — of the existence of the seal and its
significance. Apart
this is the first case
involving a breach of seal
in which it has imposed a corre-
sponding penalty, the Commission has been unable to find any
mitigating circumstances. In particular, EE has not cooperated
with the Commission to an extent beyond the legal obligation
to cooperate.

from the fact

that

4. LEGAL CONSEQUENCES

Where the conditions for a breach of seal within the meaning of
Article 23(1)(e) of Regulation (EC) No 1/2003 are met, the
Commission can impose a fine of up to 1 % of turnover. Quite
apart from this specific case, breaches of seals are in principle a
serious infringement. It must therefore be ensured that the fine
has a deterrent effect. It must not be in the interests of an
undertaking involved in an inspection to break a seal. On the
other hand, in determining the amount of the fine, the Commis-
sion took account of the fact that this is the first case in which
the new provision in Regulation (EC) No 1/2003 has been
applied. The Commission therefore
fine of
EUR 38 million.

imposed a

5. ADVISORY COMMITTEE

On 25 January 2008, the Advisory Committee on restrictive
practices and dominant positions gave a favourable opinion on
the draft decision.