On 22 November 2012, the Court of Justice of the European Union (CJEU) dismissed an appeal by E.ON Energie AG against an earlier European Commission (Commission) decision imposing a EUR 38 million fine for breaking a seal during a dawn raid. This is the first time that EU courts have reviewed a stand-alone decision by the Commission on a procedural antitrust infringement. This case confirms the Commission's investigative powers and the seriousness with which companies must treat any antitrust investigation.
In May 2006, the Commission carried out unannounced inspections at the premises of E.ON Energie in Munich (Germany) to investigate suspected antitrust violations. The Commission exercised its investigative powers to seal business premises and certain documents were stored in a locked room and affixed an official Commission seal. When the Commission officials returned next day to continue the inspection, they found that the seal affixed the evening before had been tampered with.
In January 2008, the Commission fined E.ON Energie EUR 38 million, the first ever sanction for breaking a seal. E.ON Energie subsequently appealed against the fine before the General Court arguing that the seal had been broken due to nearby vibrations, the use of an aggressive cleaning product and the age of the seal. The General Court rejected in their entirety E.ON Energie's arguments.
The CJEU upheld the decision of the General Court rejecting E.ON Energie's arguments on, inter alia, the burden of proof, and the principle of proportionality of fines. In respect of burden of proof, E.ON Energie had argued that the General Court had "unduly reversed the burden of proof" that where the Commission relies on direct evidence it is for the undertaking concerned to demonstrate that the evidence relied on by the Commission is insufficient. According to the CJEU, since the Commission had determined that there had been a breach of the seal based on a body of evidence, the General Court was entitled to conclude that it was for E.ON Energie to adduce evidence challenging that finding. Accordingly, there was no reversal of the burden of proof as it was up to E.ON Energie to prove the defectiveness of the seal once the Commission had determined that the seal was broken in light of evidence available to it.
E.ON Energie also claimed that the fine imposed was disproportionate to the alleged breach. As regards the level of the fine, the fine for a breach of a seal, intentionally or negligently, can amount to 1% of an undertaking's turnover in the preceding business year. Given that the €38 million fine represented only 0.14% of E.ON Energie's annual turnover, and considering the particularly serious nature of a breach of a seal, the size of E.ON Energie and the need to ensure that the fine has a sufficient deterrent effect, the CJEU held that the EUR 38 million fine could not be considered as disproportionate.
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