19.10.2012   

EN

Official Journal of the European Union

C 316/1

19.10.2012   

EN

Official Journal of the European Union

C 316/4

19.10.2012   

EN

Official Journal of the European Union

C 316/5

1.

The Advisory Committee agrees with the Commission’s qualification of the two incidents relating to the handling of e-mails as a refusal to submit to an inspection according to Article 23(1)(c) of Regulation (EC) No 1/2003.

2.

The Advisory Committee agrees with the Commission that the infringement of Article 23(1)(c) of Regulation (EC) No 1/2003, i.e. the refusal to submit to the inspection, was committed negligently with regard to the unblocking of an e-mail account and intentionally with regard to the diversion of incoming e-mails.

3.

The Advisory Committee agrees with the Commission’s assessment that the two incidents relating to the handling of e-mails constitute a single infringement.

4.

The Advisory Committee agrees with the Commission that Energetický a průmyslový holding a.s. and EP Investment Advisors, s.r.o. are each liable for the infringement.

5.

The Advisory Committee agrees with the factors taken into account when calculating the level of the fine for Energetický a průmyslový holding a.s. and EP Investment Advisors, s.r.o. pursuant to Article 23(1)(c) of Regulation (EC) No 1/2003.

6.

The Advisory Committee agrees with the actual level of the fine proposed by the Commission.

7.

The Advisory Committee recommends the publication of its opinion in the Official Journal of the European Union.

19.10.2012   

EN

Official Journal of the European Union

C 316/6

(1)

On 24-26 November 2009, the Commission conducted an inspection pursuant to Article 20 of Regulation (EC) No 1/2003 (2) at the premises of J&T Investment Advisors, s.r.o. (hereinafter ‘J&T IA’) (3) and Energetický a průmyslovy holding, a.s. (hereinafter ‘EPH’) (4).

(2)

On 17 May 2010, the Commission opened proceedings, pursuant to Article 23(1)(c) of Regulation (EC) No 1/2003, against J&T IA and EPH (hereinafter ‘the parties’) concerning an alleged refusal to submit to the inspection (5).

(3)

On 17 December 2010, the Commission adopted a statement of objections (‘SO’) against J&T IA and EPH concerning an alleged infringement as referred to in Article 23(1)(c) of Regulation (EC) No 1/2003. The objections related to three incidents that took place during the inspection.

(4)

The parties received access to the Commission's file on 6 January 2011. I did not received any request from the parties regarding access to the file, and therefore conclude that no problem arose in this regard.

(5)

The parties submitted written comments on the SO on 17 February 2011, within the time limit set by the Commission. In their written comments, the parties requested to develop their arguments at an oral hearing, which took place on 25 March 2011.

(6)

In the letter inviting the parties to the oral hearing, I included certain questions of clarification relating to one of the three incidents that occurred during the inspection and was mentioned in the SO (6). The parties were invited to address these questions at the oral hearing, and this led to a helpful discussion concerning this incident at the oral hearing.

(7)

Following the oral hearing, the parties were informed by the Directorate-General for Competition during a state-of-play meeting that the Commission would not further pursue the one incident which is mentioned in paragraph 6 above.

(8)

Also following the oral hearing, the Commission addressed to EPIA and EPH a supplementary statement of objections (‘SSO’) on 15 July 2011, changing the qualification of the alleged infringement for another one of the three incidents from intentional to intentional or at least negligent.

(9)

The parties were granted access to the file on 1 August 2011 and submitted written comments on the SSO within the time limit set by the Commission. They requested to develop their arguments at a second oral hearing, which took place on 13 October 2011.

(10)

Pursuant to Article 16 of the Terms of Reference, I have examined whether the draft decision deals only with objections in respect of which the parties have been afforded the opportunity of making known their views, and I have come to a positive conclusion.

(11)

Overall, I conclude that the parties have been able to effectively exercise their procedural rights in this case.

19.10.2012   

EN

Official Journal of the European Union

C 316/8

(1)

The Decision is addressed to Energetický a průmyslový holding (‘EPH’) and its 100 % subsidiary EP Investment Advisors (‘EPIA’). It imposes a fine on them for refusal to submit to an inspection, an infringement within the meaning of Article 23(1)(c) of Council Regulation (EC) No 1/2003. The refusal took the form of a failure to block an e-mail account and of diversion of incoming e-mails which occurred during the inspection carried out at the premises shared by EPH and EPIA.

(2)

On 17 May 2010, the Commission decided to initiate proceedings against J&T IA (now EPIA (3)) and EPH with a view to adopting a decision sanctioning an alleged infringement within the meaning of Article 23(1)(c) of Council Regulation (EC) No 1/2003.

(3)

On 17 December 2010, the Commission adopted a statement of objections (‘SO’) against EPIA and EPH concerning an alleged infringement within the meaning of Article 23(1)(c) of Council Regulation (EC) No 1/2003. The SO was notified to the parties on 22 December 2010. The parties submitted their response on 17 February 2011. The oral hearing took place on 25 March 2011.

(4)

On 15 July 2011, the Commission adopted a supplementary statement of objections (‘SSO’) setting out additional factual and legal elements with regard to one of the instances of an alleged infringement within the meaning of Article 23(1)(c) of Council Regulation (EC) No 1/2003. The SSO was notified to the parties on 19 July 2011. The parties submitted their response on 12 September 2011. The oral hearing took place on 13 October 2011.

(5)

The Advisory Committee on restrictive practices and dominant positions was consulted on the existence of an infringement and on the proposed amount of the fine on 12 March 2011. The Advisory Committee delivered a unanimous positive opinion on the draft decision, including the proposed fine.

(6)

The Hearing Officer issued his final report on 13 March 2012. The report concludes that the parties’ right to be heard has been respected.

(7)

The Decision addresses two incidents relating to the handling of e-mails that occurred during the inspection of 24-26 November 2009: (i) failure to block an e-mail account and (ii) diversion of incoming e-mails.

(8)

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 e-mail 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.

(9)

On the third day of the inspection, the Commission inspectors discovered that one of the employees had requested the IT department on the second day of the inspection to divert all incoming e-mails to the accounts of several key persons away from these accounts to a computer server. The company admitted that it had implemented the instruction for at least one of the e-mail accounts. As a result, the incoming e-mails did not become visible in the inboxes concerned and could not be searched by the inspectors.

(10)

First, the Decision notes that the case law in Orkem (4) and Société Générale (5) and the Commission's decision-making practice (6) confirm that full submission to an inspection includes the obligation to actively cooperate with the Commission in all respects. This entails that e-mail accounts of the undertaking are blocked upon request of the inspectors by resetting the password and providing them with a new password exclusively known to the inspectors. The exclusive access to the account by the inspectors must be ensured until the inspectors explicitly allow for it to be unblocked so as to ensure the integrity of the content of the mailbox.

(11)

Second, the Decision notes that submission to an inspection requires that Commission inspectors must have access to all e-mails in the account, including e-mails entering the account during the entire inspection until such point as the inspection ends.

(12)

Third, the Decision determines that the unblocking of the e-mail account was committed by negligence and that the diversion of incoming e-mails was committed intentionally.

(13)

Fourth, the Decision determines that while each of the two incidents could constitute an infringement within the meaning of Article 23(1)(c) of Regulation (EC) No 1/2003 in itself, having regard to the common elements, it would not be appropriate to view each conduct in isolation. Therefore, it is concluded that EPIA and EPH engaged in a single overall infringement within the meaning of Article 23(1)(c) of Regulation (EC) No 1/2003.

(14)

Fifth, given that EPH controls EPIA as its 100 % owner in a common management structure as well as the fact that the incidents involved persons who represented both entities during the inspection and also related to e-mail accounts of persons working for each of them, the Decision determines that EPIA and EPH should be held jointly and severally liable for the infringement.

(15)

Since the infringement referred to in Article 23(1)(c) of Regulation (EC) No 1/2003 has been established, the Commission may impose on the undertakings fines not exceeding 1 % of their turnover.

(16)

For determining the amount of the fines, the Decision has regard both to the gravity and the duration of the infringement according to Article 23(3) of Regulation (EC) No 1/2003.

(17)

Concerning the gravity, the Decision notes that the infringement is of a serious nature. It is particularly noted that the power to conduct inspections is one of the most important of the Commission's investigative powers in the competition field permitting to detect infringements of Articles 101 and 102 of the TFEU. It is also noted that over the last decade paper-based evidence has become less important and most of the documents collected nowadays during inspections are extracted from e-mail accounts and electronic files and that data stored in electronic format are much easier and quicker to destroy than paper files. Finally, it is taken into account that there are two incidents in which EPIA and EPH obstructed the inspection: the failure to block an e-mail account and the diversion of e-mails.

(18)

In terms of duration, the Decision takes into account that the infringement continued for a significant period of time during the inspection at the premises of EPIA and EPH.

(19)

Finally, the Decision takes into account that the parties have cooperated in a way which helped the Commission to ascertain the circumstances of the refusal to submit to the inspection with regard to e-mails. It is nevertheless noted that while the parties did not contest certain facts, they have generally sought to put in doubt the existence of any procedural violation.

(20)

On the basis of the above, the Decision concludes that EPH and EPIA refused to submit to the inspection carried out at their premises on 24-26 November 2009 pursuant to Article 20(4) of Regulation (EC) No 1/2003 by negligently allowing access to a blocked e-mail account and intentionally diverting e-mails to a server, thereby committing an infringement within the meaning of Article 23(1)(c) of that Regulation. The Decision imposes a fine of EUR 2 500 000 jointly and severally on EPH and EPIA.