Brussels, 20 December 2010
The European Commission has sent a Statement of Objections (SO) to Energetický a průmyslový holding and J&T Investment Advisors, active in the electricity sector in the Czech Republic. The Commission's preliminary view is that the companies obstructed an inspection carried out by Commission officials from 24 to 26 November 2009 at their premises in Prague as part of an antitrust investigation. Such obstruction would be in breach of companies' obligations to cooperate with Commission officials during such inspections and to disclose all documents relevant to the investigation.
Based on the information at its disposal at this stage, the Commission has sent a Statement of Objections to Energetický a průmyslový holding and J&T Investment Advisors because its preliminary view is that the two companies obstructed the Commission's inspection. In May 2010, the Commission had opened proceedings against the two companies for such obstruction (see IP/10/627).
From 24 to 26 November 2009, the Commission carried out inspections at the premises of Czech companies active in the electricity and lignite sectors, investigating a potential violation of EU antitrust rules (Articles 101 and 102 TFEU, see MEMO/09/518).
The power to carry out inspections is one of the Commission's most important investigative tools to detect infringements of the antitrust rules. Inspectors are empowered to examine and take copies of documents related to the business, irrespective of the medium on which they are stored. In order to avoid any destruction of electronic files, inspectors routinely take steps ensuring them access to the complete files during an inspection, as foreseen by the antitrust Regulation 1/2003.
In particular inspectors identify the e-mail accounts of key persons in a company under inspection and block access to these e-mail accounts during the inspection in order to prevent destruction. The Commission needs to review not only e-mails that pre-date the inspection but also e-mails that are exchanged in the course of the inspection. Moreover, the right to uninhibited access to companies' premises and to take copies of business documents implies, as far as electronic documents are concerned, that passwords which may be used to secure e-mails have to be given to the inspectors.
During the inspection at Energetický a průmyslový holding and J&T Investment Advisors, a number of incidents relating to the handling of e-mail accounts and the access to electronic records occurred. These incidents concerned the failure to block an e-mail account, the failure to open encrypted e-mails and the diversion of incoming e-mails.
If the Commission investigation concludes that there is sufficient evidence of an infringement, it can impose a fine of up to 1% of a company's annual worldwide turnover.
This investigation concerns only the behaviour of J&T Investment Advisors and Energetický a průmyslový holding during the inspections in November 2009. It is without prejudice to the Commission's separate investigation of the potential antitrust infringements in the Czech electricity sector, which is ongoing (see MEMO/09/518).
A Statement of Objections is a formal step in antitrust investigations by which the Commission informs the parties concerned in writing of the objections raised against them. The companies can then examine the documents in the Commission’s file, reply in writing and request an oral hearing to present their comments on the case to representatives of the Commission and the national competition authorities.
Sending a Statement of Objections does not prejudge the final outcome of the procedure.
There is no legal deadline to complete antitrust inquiries. Their duration depends on a number of factors, including the complexity of each case, the extent to which the undertakings concerned co-operate with the Commission and the exercise of the rights of defence.
Companies' obligations to cooperate with Commission officials during an inspection, to give correct information and to give access to all documents relevant to an antitrust investigation are laid down in Regulation 1/2003 (Articles 20(4) and 23).
These obligations have just been confirmed by the EU's General Court in its 15th December 2010 ruling in case (case T-141/08), dismissing E.ON's appeal against a €38 million fine the Commission imposed on it in 2008 for the breach of a seal during an inspection (see MEMO/10/686)