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European Commission - Press release
Antitrust: Commission fines Czech energy companies Energetický a průmyslový holding and EP Investment Advisors € 2.5 million for obstruction during inspection
Brussels, 28 March 2012 - The European Commission has imposed a total of € 2 500 000 in fines on Energetický a průmyslový holding and EP Investment Advisors1, active in the energy sector in the Czech Republic, for obstructing an inspection carried out by Commission officials from 24 to 26 November 2009 at their premises in Prague as part of an antitrust investigation. The companies failed to block an email account and diverted incoming emails, in breach of their obligations to cooperate with Commission officials during such inspections and to disclose all documents relevant to the investigation.
Joaquín Almunia, Vice President of the Commission in charge of competition policy, said: "Company information is nowadays essentially stored in IT environments like email systems and can be quickly modified or deleted. This decision sends a clear message to all companies that the Commission will not tolerate actions which could undermine the integrity and effectiveness of our investigations by tampering with such information during an inspection."
On 24 November 2009, after the notification of the inspection decision, the Commission inspectors requested to block e-mail accounts of key persons until further notice. This was done by setting a new password only known to the Commission inspectors. This is a standard measure taken at the beginning of inspections, to ensure that inspectors have exclusive access to the content of email accounts and prevent modifications to those accounts while they are searched. On the second day of the inspection the Commission inspectors discovered that the password for one account had been modified in the course of the first day in order to allow the account holder to access the account.
On the third day of the inspection, the Commission inspectors discovered that one of the employees had requested the IT department on the previous day to divert all e-mails arriving in certain blocked accounts away from these accounts to a computer server. The company admitted that this procedure had been implemented for at least one e-mail account. As a result, the incoming e-mails did not become visible in the inboxes concerned, they could not be searched by inspectors and their integrity could be compromised.
Background on the investigation
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 that prohibit restrictive business practices and the abuse of a dominant market position (respectively Articles 101 and 102 of the Treaty on the Functioning of the European Union – TFEU, see MEMO/09/518).
The Commission opened proceedings in this case in May 2010 (see IP/10/627) and sent the companies a statement of objections in December 2010, setting out its concerns (see IP/10/1748). Today's decision finds for the first time that an obstruction related to emails occurred during an inspection.
Background on inspections
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.
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 as one of the measures to prevent the destruction of content. 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.
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 antitrust Regulation 1/2003 (Articles 20(4) and 23).
These obligations have been confirmed by the EU's General Court in a December 2010 ruling (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)
Article 23(1)(c) of antitrust Regulation 1/2003 provides that the Commission can impose a fine of up to 1% of a company's total turnover if the company, intentionally or negligently, produces the required books or other records related to the business in incomplete form during an inspection or refuses to submit to an inspection.
On 10 November 2010, J&T Investment Advisors was renamed EP Investment Advisors without changes in the corporate structure or the organisation of the company.