JUDGMENT OF THE GENERAL COURT (Sixth Chamber)
26 November 2014 (*)
(Competition — Administrative procedure — Decision finding a refusal to submit to an inspection and imposing a fine — Article 23(1)(c) of Regulation (EC) No 1/2003 — Presumption of innocence — Rights of the defence — Proportionality — Obligation to state reasons)
In Case T‑272/12,
Energetický a průmyslový holding a.s., established in Brno (Czech Republic),
EP Investment Advisors s.r.o., established in Prague (Czech Republic), represented initially by K. Desai, Solicitor, J. Schmidt and M. Peristeraki, and subsequently by J. Schmidt, R. Klotz and M. Hofmann, lawyers,
applicants,
v
European Commission, represented initially by A. Antoniadis and R. Sauer, and subsequently by R. Sauer and C. Vollrath, acting as Agents,
defendant,
APPLICATION for the annulment of Commission Decision C(2012) 1999 final of 28 March 2012 relating to a proceeding under Article 23(1)(c) of Regulation (EC) No 1/2003 (refusal to submit to an inspection) (Case COMP/39793 — EPH and Others),
THE GENERAL COURT (Sixth Chamber),
composed of S. Frimodt Nielsen, President, F. Dehousse and A.M. Collins (Rapporteur), Judges,
Registrar: N. Rosner, Administrator,
having regard to the written procedure and further to the hearing on 6 March 2014,
gives the following
Judgment
Legal context
1 Article 20(2)(c) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1) provides that ‘[t]he officials and other accompanying persons authorised by the Commission to conduct an inspection are empowered … to take or obtain in any form copies or extracts from … books or records [related to the business]’.
2 Article 20(4) of that regulation states as follows:
‘Undertakings and associations of undertakings are required to submit to inspections ordered by decision of the Commission. The decision shall specify the subject matter and purpose of the inspection, appoint the date on which it is to begin and indicate the penalties provided for in Articles 23 and 24 and the right to have the decision reviewed by the Court of Justice …’.
3 Article 23(1)(c) of that regulation provides that ‘[t]he Commission may by decision impose on undertakings and associations of undertakings fines not exceeding 1% of the total turnover in the preceding business year where, intentionally or negligently …, they produce the required books or other records related to the business in incomplete form during inspections under Article 20 or refuse to submit to inspections ordered by a decision adopted pursuant to Article 20(4)’.
Background to the dispute
4 By decision of 16 November 2009, in accordance with Article 20 of Regulation No 1/2003, the Commission of the European Communities ordered an inspection of the premises of Energetický a průmyslový holding a.s. (‘EPH’) and those of the undertakings controlled by it. The inspection of EPH and EP Investment Advisors s.r.o. (‘EPIA’), its whollyowned subsidiary (together ‘the applicants’), commenced at 09.30 on 24 November 2009 at their premises located on the fifth floor of a building in Prague (Czech Republic). On learning of the inspection decision, the applicants declared that they had no objection to it.
5 The inspection was carried out by seven Commission representatives and four representatives from the Czech Office for the Protection of Competition. That team notified the inspection decision and explanatory note to Mr J., the executive director of EPIA and member of the board of directors of EPH.
6 Mr N., a member of the inspection team, asked Mr J. to describe the applicants’ organisation and to contact the person responsible for their Information Technology (or ‘IT’) Department. He also informed Mr J. that the e-mail accounts of four colleagues holding key positions in the company had to be identified and blocked by the IT Department, namely Mr J.’s own account and those of Mr K., Mr S. and Mr M. Mr N. stated that those four e-mail accounts had to be re-set with a new password, known only by the Commission inspectors, in order to ensure that the inspectors had exclusive access to those accounts during their inspection.
7 At the time of the inspection, the applicants did not have an independent IT Department. J&T Banka, a subsidiary of the former parent company of EPH, J&T Finance Group, was providing IT services to the applicants temporarily until they moved premises following their sale on 8 October 2009. In order to manage the applicants’ e-mail accounts, the IT Department, located on the third floor of the building occupied by them, used a J&T Finance Group server. That department, composed of eight employees, was led by Mr H. All staff members worked in one single IT room, where they had their desks.
8 The e-mails addressed to EPIA e-mail accounts passed through the J&T Finance Group server before being distributed to the different accounts. That also applied to EPH since the persons who worked for the applicants used only one e-mail account which was common to both companies. That was the case for the four colleagues referred to in paragraph 6 above, who each had a single e-mail account to perform their duties in both applicant companies.
9 On the first day of the inspection, during his meeting with Mr N., Mr J. identified Mr H. as the person responsible for the applicants’ IT Department. After having been called by Mr J. to answer questions relating to IT, Mr H. met with Mr D., the Commission inspector responsible for information technology. During that meeting, at around 11.30, Mr D. asked Mr H. to block the e-mail accounts of the four persons holding key positions until further notice by the Commission inspectors, which was put into effect at 12.00. Mr Ko., an employee of the IT Department, changed the passwords for the e-mail accounts in the IT room at around 12.30, in the presence of Mr H. and Mr D.
10 At around 14.00 that day, Mr M., who was working from home, telephoned the IT Department to report that he was unable to access his e-mail account. Mr Š., one of Mr H.’s subordinates, answered the call and reset Mr M.’s password to enable him to access his e-mail account again.
11 On 25 November 2009, the second day of the inspection, Mr D. tried to access Mr M.’s e-mail account, but was unable to do so. He found that the password for that account had been replaced by a new one. Mr D. asked for the password to be reset in order to block that e-mail account again and to enable the inspectors to examine it.
12 On the same day, the Commission drafted a set of minutes, in which it was stated as follows:
‘On Tuesday 24 November at around 11 h 30, Mr [H.] … was asked by the Commission to change the password of Active Directory accounts for [four] individuals, namely Mr [K.], Mr [J.], Mr [S.] and Mr [M.]. It was made clear to Mr [H.] that the accounts had to remain inaccessible by the persons during the entire duration of the inspection, or at least until the inspectors inform the undertaking that the passwords of the accounts can be changed again. The changing of the passwords was done by Mr [Ko.] under the instruction of Mr [H.] and the accounts were reset to a password only known by the inspectors of the Commission.
Around [14.00] of the same day, Mr [Š.], employee of [the] IT service, changed the password of Mr [M.]’s account at Mr [M.]’s request.
Mr [H.] also confirms that … on Thursday 26 November around [12.00], [he] informed the Commission inspectors that on Wednesday 25 November he gave instructions to the external IT department to block all incoming e-mails to these four accounts upon request of Mr [J.]. …
Mr [H.] confirms the above is a correct description of the facts.
The undertaking may communicate a rectification, amendment or supplement to this explanation before 1 December 2009.’
13 The minutes were signed by the inspectors and by Mr H.
14 On 26 November 2009, the third day of the inspection, at 12.00, the Commission inspectors noted, on examining Mr J.’s e-mail account, that his inbox did not contain any new e-mails. Mr H. explained to the inspectors that, on the second day at around 12.00, at the request of Mr J., he had ordered the IT Department to prevent the e-mails addressed to the accounts of the four persons holding key positions from arriving in their respective inboxes. The incoming e-mails therefore stayed on the J&T Finance Group server and were not forwarded to the inboxes of their addressees.
15 It was later confirmed that that measure had been applied solely to Mr J.’s account and not to the accounts of the other persons holding a key position.
16 On 17 May 2010, the Commission decided to initiate proceedings against EPA and J&T Investment Advisors s.r.o. (EPIA’s predecessor in title) with a view to adopting a decision pursuant to Chapter VI of Regulation No 1/2003 for refusal to submit to an inspection and the production of required records related to the business in incomplete form. The decisions to initiate proceedings were notified to those companies on 19 May 2010.
17 In accordance with Article 18(2) of Regulation No 1/2003, on 8 September 2010, the Commission sent the applicants a request for information, to which they replied by letters of 22 September 2010.
18 On 23 September 2010, the Commission and the applicants held a ‘state-of-play meeting’ in which the latter were able to present their views on the facts.
19 On 22 December 2010, the Commission sent a statement of objections to the applicants concerning an alleged infringement within the meaning of Article 23(1)(c) of Regulation No 1/2003.
20 On 17 February 2011, the applicants submitted their comments on the statement of objections. The hearing took place on 25 March 2011.
21 On 1 April 2011, the Commission, again, sent the applicants a request for information in accordance with Article 18 of Regulation No 1/2003 in order to clarify the information provided during the hearing. The applicants responded to that request on 14 April 2011, providing inter alia new information regarding the unblocking of an e-mail account.
22 On 16 June 2011, the Commission sent the applicants a further request for information pursuant to Article 18 of Regulation No 1/2003, to which they responded by letter of 22 June 2011. In that reply, they stated, inter alia, that EPH’s total turnover in 2010 was EUR 990 700 000.
23 On 23 June 2011, during another ‘state-of-play meeting’, the applicants were informed of the Commission’s preliminary opinion following the hearing and their written statements.
24 On 19 July 2011, the Commission sent the applicants a supplementary statement of objections setting out additional elements with regard to one of the objections, namely the unblocking of an e-mail account.
25 On 12 September 2011, the applicants submitted their comments on the supplementary statement of objections. The hearing took place on 13 October 2011.
26 On 28 March 2012, the Commission adopted Decision C(2012) 1999 final relating to a proceeding under Article 23(1)(c) of Regulation No 1/2003 (refusal to submit to an inspection) (Case COMP/39793 ‒ EPH and Others) (the ‘contested decision’), the operative part of which states as follows:
‘Article 1
[EPH] and [EPIA] refused to submit to the inspection carried out at their premises on 24 to 26 November 2009 pursuant to Article 20(4) of Regulation … 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.
Article 2
A fine of EUR 2 500 000 is hereby imposed jointly and severally on [EPH] and [EPIA] in respect of the infringement referred to in Article 1 …’.
Procedure and forms of order sought
27 By an application lodged at the Court Registry on 12 June 2012, the applicants brought the present action.
28 Upon hearing the Report of the Judge-Rapporteur, the Court (Sixth Chamber) decided to open the oral procedure and, in respect of measures of organisation of procedure provided for in Article 64 of its Rules of Procedure, put some written questions to the Commission, which answered them within the prescribed period.
29 The parties presented oral argument and answered the oral questions put to them by the Court at the hearing on 6 March 2014.
30 The applicants claim that the Court should:
– annul the contested decision;
– in the alternative, annul the fine imposed on the applicants, or reduce it to a symbolic fine, or at the very least, significantly reduce the fine;
– order the Commission to pay the costs.
31 The Commission contends that the Court should:
– dismiss the action in its entirety;
– order the applicants to pay the costs.
Law
32 The applicants put forward four pleas in law in support of their action. The first plea alleges that the applicants’ rights of defence have been infringed, the second that the finding that the applicants refused to submit to the inspection is incorrect, the third that the principle of the presumption of innocence has been infringed and the fourth that the principle of proportionality was infringed when determining the amount of the fine.
33 First of all, the Court will consider the second plea in law, which concerns the finding of the infringement at issue. Then, the first and third pleas in law, relating to the conduct of the administrative procedure, should be examined together. Lastly, the fourth plea in law, relating to the calculation of the amount of the fine, will be examined.
The second plea in law, alleging misapplication of Article 23(1)(c) of Regulation No 1/2003
34 The infringement found in Article 1 of the contested decision, in this case a refusal to submit to the inspection, consists, first, in negligently allowing access to a blocked e-mail account and, secondly, in intentionally diverting incoming e-mails to a server. It is apparent from the contested decision that the finding that there was an infringement is based upon direct and objective evidence, namely the minutes (reproduced in paragraph 12 above) and the ‘log-file’ or Mr M.’s e-mail account (recitals 28 and 33 of the contested decision). At the hearing, in reply to the questions put by the Court, the applicants stated that they did not challenge the content of those minutes. They have at no stage challenged the evidential value of the ‘log-file’. It is therefore common ground between the parties that, contrary to the inspectors’ instructions, Mr M. had access to his e-mail account during the inspection and the incoming e-mails to Mr J.’s e-mail account were blocked at his request.
35 None the less, by the present plea in law the applicants argue that the Commission did not prove to the requisite legal standard that the circumstances attributed to them resulted in the business records required by the inspectors being produced in incomplete form, so that it cannot be alleged they refused to submit to the inspection. In the applicants’ view, the conduct covered by the contested decision results from mere inadvertence and does not fall within the scope of negligence or a deliberate intention. The contested decision should therefore be annulled.
36 The Commission disputes the arguments put forward by the applicants.
37 It must, first of all, be borne in mind that, as is clear from the wording of Article 23(1)(c) of Regulation No 1/2003, the Commission may impose fines where, intentionally or negligently, undertakings refuse to submit to an inspection. It is one of the two cases in which a fine may be imposed under that provision. In accordance with the case-law, the Commission has the burden of proving such a refusal (see, to that effect, judgment of 22 November 2012 in E.ON Energie v Commission, C‑89/11 P, ECR, EU:C:2012:738, paragraph 71). It must therefore be examined whether, in the light of the applicants’ arguments, that evidence substantiates to the requisite legal standard the infringement as found in the contested decision.
Negligently allowing access to a blocked e-mail account
38 It must be stated — and this point is not challenged by the applicants — that Mr M.’s e-mail account, examined by the inspectors, was from the first day of the inspection not entirely under their control. In addition, the fact that Mr M. had access to his account was not discovered until Mr D. attempted to access it on the second day of the inspection. Consequently, the mere fact that the inspectors did not obtain, as requested, exclusive access to Mr M.’s e-mail account, one of the four persons holding key positions and whose account had been ordered to be blocked (see paragraph 12 above), is sufficient to characterise the incident at issue as a refusal to submit to the inspection.
39 In the first place, the applicants’ argument, according to which the Commission erred in characterising the mere fact of having allowed access to a blocked e-mail account — irrespective of whether e-mails had been manipulated or deleted — as a negligent infringement, cannot succeed. It is apparent from recital 28 of the contested decision that not only did Mr H. confirm in the minutes that access had been granted to the account in question during the inspection, but also that ‘[t]he inspectors also gathered a listing setting out the connections made on Mr [M.]’s e‑mail account’ and that ‘[t]hat log-file shows that Mr [M.]’s e-mail account was accessed continuously between 14.50 h on day 1 and 13.05 h on day 2 [of the inspection]’. As is apparent from the foregoing considerations, the Commission has the burden of proving that access was granted to the data in Mr M.’s blocked e-mail account, but is not required to prove that those data were manipulated or deleted (see, by analogy, judgment of 15 December 2010 in E.ON Energie v Commission, T‑141/08, EU:T:2010:516, paragraphs 85 and 86).
40 In that context, the applicants do not claim that the data in Mr M.’s account were complete when the inspectors were reviewing them. On the other hand, they put forward arguments of a technical nature relating to the ‘resistance’ of the electronic files and their automatic copying to the server in order to argue that there was no refusal to submit to the inspection since those data were saved to their server. That argument cannot be accepted, because the refusal to submit to the inspection was established in the present case when the inspectors did not obtain exclusive access to Mr M.’s account (see paragraph 38 above).
41 Even if proved, the fact that the inspectors could access the electronic files concerned, namely the e-mails received in or sent from Mr M.’s e-mail account, at all times by means of the server is inoperative since the Commission was under no obligation to investigate whether those files might be intact elsewhere than in the e-mail account which the inspectors had ordered to be blocked at the start of the inspection. The inspectors should have been able to obtain the evidence, whether in paper or electronic form, in the places where such evidence is normally to be found, that is, in the present case, in Mr M’s account, without being prevented from doing so by the applicants (see, to that effect, judgment of 26 October 2010 in CNOP and CCG v Commission, T‑23/09, ECR, EU:T:2010:452, paragraph 69 and the case-law cited). In that regard, the applicants’ argument that Mr M. had access to his account remotely, which would have prevented him from altering the data stored on the hard drive of his computer, is also irrelevant.
42 The same is true of the argument that Commission should have verified when the last back-up to the server had taken place in order to determine whether the verification of the content of the account had actually been impeded. The Commission was under no obligation to carry out such a check (see paragraph 39 above). In addition, the fact — relied upon by the applicants — that the Commission acted differently, in a previous case, recovering files which had been deleted, is not in itself capable of imposing such an obligation on it in the present case and cannot mean that the Commission exhibited bias against the applicants.
43 In the second place, the applicants submit that the Commission has not proved to the requisite legal standard that they acted negligently as regards the access to the blocked account. That argument is directed at recital 72 of the contested decision, which states ‘Mr [H.] had a duty to promptly inform his subordinates, including Mr [Šp.], about the inspectors’ instructions and to ensure that those instructions were closely followed’ and ‘[h]is failure to do so leads to the conclusion that the infringement was committed by negligence’.
44 First, even if proved, the fact that Mr M. was unaware that his account had been blocked and that an inspection was underway — as the applicants maintain — is irrelevant since the finding of negligence is based on Mr H.’s omission. As is apparent from recital 73 of the contested decision, ‘as Mr [H.] was briefed separately and in detail by a Commission inspector … [a]s head of the IT Department it was in turn [his] responsibility to promptly instruct his subordinates in the IT Department of those obligations [to block the e-mail accounts] and how to implement them as regards IT matters … in order to avoid an infringement of procedural obligations under Regulation (EC) No 1/2003’. The applicants stated, at the hearing, that they did not challenge the content of the minutes. Nor can they claim that the incident occurred due to ‘mere inadvertence’, since Mr H. had indeed received the instruction that the four e-mail accounts identified by the inspectors had to remain blocked during the entire duration of the inspection and that the applicants were required to obey that instruction pursuant to Article 20(4) of Regulation No 1/2003.
45 In addition, the applicants cannot attribute Mr H.’s omission to a lack of care and attention on the part of the inspectors, such that the inspectors allegedly failed to sufficiently inform Mr H. of his obligations and of the penalties in the event of non-compliance with their instructions. Since the purpose of Article 20(4) of Regulation No 1/2003 is to enable the Commission to carry out investigations without prior warning on the premises of undertakings suspected of infringements of Articles 101 TFEU and 102 TFEU, when an inspection decision, the reasons for which have been set out, has been correctly notified to an authorised person within those undertakings, the Commission must be able to carry out investigations, without being under an obligation to inform each person concerned of his duties in the circumstances of the case. Such an obligation would delay the inspection, the duration of which is strictly limited. At the hearing, the applicants confirmed that Mr J. and Mr H., in their capacities as the person vested with legal representation and IT manager respectively, were the persons authorised to receive instructions from the Commission’s inspectors. It must be stated that since the inspection decision was notified to the authorised persons at the beginning of the inspection, it was for the applicants to take all the necessary measures to implement the inspectors’ instructions and to ensure that the persons authorised to act on behalf of the undertakings did not impede the implementation of those instructions (see, by analogy, E.ON Energie v Commission, cited in paragraph 39 above, EU:T:2010:516, paragraph 260).
46 Secondly, the Court must also reject the applicants’ argument, set out in the reply, according to which Mr H. was an employee of an independent company and was not therefore authorised to act for the applicants. It is apparent from the contested decision — and is not disputed by the applicants — that Mr H. was identified to the inspectors by Mr J. as the person responsible for the applicants’ IT services from the outset of the inspection (recital 22 of the contested decision). It must be noted in that regard that the Commission’s power to impose a penalty on an undertaking where it has committed an infringement presumes only the unlawful action of a person who is generally authorised to act on behalf of the undertaking (see E.ON Energie v Commission, cited in paragraph 39 above, EU:T:2010:516, paragraph 258 and the case-law cited).
47 Thirdly, it must be pointed out that the Commission’s ‘subjective conclusions’ as to Mr Šp.’s level of knowledge, disputed by the applicants, are in fact findings in the statement of objections which were not retained in the contested decision. The applicants’ arguments in that regard are therefore, in any event, inoperative (see paragraph 44 above), because the finding of negligence is based on Mr H.’s omission, not Mr. Šp’s knowledge.
48 In the light of the foregoing, it must be held that the Commission was fully entitled to find, in the present case, that access to a blocked e-mail account had been negligently allowed.
The intentional diversion of incoming e-mails to a server
49 The applicants submit that the Commission did not demonstrate to the requisite legal standard the facts which would constitute an infringement of Article 23(1)(c) of Regulation No 1/2003 with regard to the diversion of incoming e-mails, which allegedly reduced the scope of the inspectors’ access during a significant part of the inspection.
50 In the first place, the Court rejects the applicants’ claims that the e-mails destined for Mr J.’s account were still relayed to the server and stored on that medium, which was accessible by the inspectors at all times if they wished to examine those emails. The inspectors should, in fact, have been able to access all the e‑mails normally to be found in Mr J.’s inbox, the subject of the inspection, without being obliged to gather data from other places in order to carry out their inspection (see paragraph 40 above).
51 First of all, the applicants do not dispute that, contrary to the inspectors’ instructions, those e-mails were diverted from Mr J.’s account at his request. Next, as has been set out in paragraphs 38 to 42 above, since the Commission has shown, on the basis of undisputed evidence, that the files were not produced in Mr J.’s account in complete form during the inspection, it was not required to examine whether the missing data could be found elsewhere in the applicants’ IT system. As is apparent from recital 57 of the contested decision, Mr J.’s instruction to divert to the server all new e-mails to the accounts of the four persons holding key positions with the applicants and the implementation of that instruction by the IT Department, at least with regard to those e-mails addressed to Mr J.’s own account, took place without the Commission inspectors’ knowledge. The inspectors discovered that they did not have access to all the e-mails in Mr J.’s account when the inspection was underway, whereas they had requested exclusive access to that account from the beginning of the inspection (see paragraph 12 above). Lastly, in the light of the foregoing considerations, the applicants’ argument that the Commission must have been aware that the data could be found on the server is inoperative.
52 For the sake of completeness, it is apparent from Annex 2 to the Commission’s inspection report relating to the IT investigations that the inspectors attempted, in the present case, to restore certain electronic files, but that the result was ‘strange’ and that a lot of documents were still missing. Consequently, the applicants’ argument that the data covered by the inspection decision were accessible by the inspectors at all times by means of the server must be rejected as unfounded.
53 It is important, moreover, to point out, in the context of the duty of cooperation during an inspection, that it follows from the case-law that an undertaking which is subject to investigation must, if the Commission so requests, provide it with documents in its possession which relate to the subject-matter of the investigation, even if those documents could be used by the Commission in order to establish the existence of an infringement (see, as regards Council Regulation No 17 of 6 February 1962: First Regulation implementing Articles [81 EC] and [82 EC] (OJ, English Special Edition 1959-1962, p. 87), judgment of 29 June 2006 in Commission v SGL Carbon, C‑301/04 P, ECR, EU:C:2006:432, paragraph 44). The applicants cannot therefore merely allege that the inspectors could have found the data concerned elsewhere at their premises, since they were under an obligation to make Mr J.’s e-mails available to the inspectors. In addition, it is sufficient, for the purposes of applying Article 23(1)(c) of Regulation No 1/2003, for the diverted e-mails to be covered by the inspection decision, which the applicants do not deny.
54 The argument that the diversion of e-mails related to only a very short phase of the inspection and thus only to a limited number of non-essential e-mails for an inspection which dated back to 2006 cannot cast a different light on the facts established by the Commission. In any event, the quantity or significance of the diverted e-mails for the subject-matter of the investigation is irrelevant to establishing the infringement in the present case.
55 Similarly, characterisation of the infringement as a procedural one is not affected by the fact that the Commission has not taken proceedings against the applicants for a breach of substantive law for the purposes of Article 101 TFEU after the inspection at issue. Having regard to the fact that inspection decisions are adopted at the start of an inquiry, there can be no question at that stage of assessing definitively whether the acts or decisions of the addressee entities or other entities can be regarded as agreements between undertakings, as decisions by associations of undertakings or as concerted practices contrary to Article 101(1) TFEU or as practices referred to in Article 102 TFEU (CNOP and CCG v Commission, cited in paragraph 41 above, EU:T:2010:452, paragraph 68).
56 In the second place, the applicants submit that the assumption in recital 75 of the contested decision is not sufficient to demonstrate to the requisite legal standard that they acted intentionally.
57 That recital states as follows:
‘As regards the diversion of incoming e-mails (that is to say, e-mails arriving during the inspection) from the e-mail accounts to the server of J&T FG, the Commission considers that both Mr [J.] and Mr [H.] knew that exclusive access by the Commission inspectors to the four identified e-mail accounts had to be guaranteed and that they were thus not allowed to change the settings of the e-mail accounts during the course of the inspection. No exception was made for incoming e-mails which normally would have arrived at the accounts; such incoming e-mails are covered by the on-going inspection as well as the relevant instructions. Hence, Mr [J.], who requested Mr [H.] to instruct the IT department to divert incoming e-mails addressed to certain specific e-mail accounts as well as Mr [H.] himself must have been aware that this constituted a violation of the obligations imposed on both EPIA and EPH during the inspection. The diversion of incoming e-mails (implemented at least as regards the e-mail account of Mr [J.]) was thus committed intentionally.’
58 It must be pointed out that, in footnote No 87 of the contested decision, the Commission refers to recitals 20 and 21 of that decision for the explanations and instructions given by the Commission’s inspectors to Mr J. and for those given to Mr H. The content of those recitals is reproduced, in essence, in paragraphs 6 to 8 above. However, the explanations and instructions given to Mr H. are in fact set out in recital 22 of the contested decision (see paragraph 9 above).
59 The applicants have not disputed those facts and they are therefore incorrect to claim that the Commission merely relied on an ‘assumption’. First, the instructions communicated to Mr H. are borne out by the minutes (see paragraph 12 above). Secondly, it is not disputed that Mr J. accepted notification of the inspection decision for the applicants and that he identified Mr H. to the inspectors as the person responsible for the applicants’ IT service in order for the accounts to be blocked (see paragraphs 5 and 9 above). Both Mr J. and Mr H. had received the instructions concerning the blocking of the accounts directly from the inspectors and were under an obligation to provide them with the electronic documents relating to the subject-matter of the investigation (see paragraph 53 above). The Commission did not therefore err in finding that the diversion of the incoming e-mails to a server was intentional in that both those persons ordered and carried out the diversion of the e-mails from Mr J.’s account, so that it would no longer be possible to access Mr J.’s e-mails through his account, which clearly thwarted both the instructions given to them and the purpose of the inspection.
60 The argument that the persons concerned could not know that their conduct constituted an infringement is, in essence, the same as the first plea in law and will therefore be examined in the context of that plea.
61 It must be stated that, in the context of the present plea in law, the applicants do not put forward a plausible alternative explanation of the facts to that adopted by the Commission in concluding that an infringement occurred (see, to that effect, E.ON Energie v Commission, cited in paragraph 37 above, EU:C:2012:738, paragraphs 74 to 76).
62 It follows that the second plea in law must be rejected.
The first and third pleas in law, alleging, respectively, infringement of the rights of defence and infringement of the presumption of innocence
63 By their first plea in law, the applicants attribute the two incidents comprising the infringement at issue to a lack of care and attention on the part of the Commission’s inspectors and submit that their rights of defence were infringed given the insufficient instructions. In the applicants’ view, those incidents would not have occurred if the persons concerned, namely Mr J. and Mr. H. and his team, had been correctly informed of their obligations during the inspection and of the consequences of non-compliance with them.
64 By their third plea in law, the applicants submit that, during the administrative procedure, the Commission displayed prejudice against them, which led to an extremely strict stance being taken in the contested decision, adopted in breach of the principle of the presumption of innocence.
65 The Commission contends that all those claims are unfounded.
The first plea in law
66 First of all, it should be pointed out that the administrative procedure under Regulation No 1/2003, which takes place before the Commission, is divided into two separate, successive stages, each having its own internal logic, namely a preliminary investigation stage and an inter partes stage. The preliminary investigation stage, during which the Commission uses the powers of investigation provided for in Regulation No 1/2003 and which covers the period until notification of the statement of objections, is intended to enable the Commission to gather all the relevant information confirming whether or not there is an infringement of the competition rules and to adopt an initial position on the course of the procedure and how it is to proceed. By contrast, the inter partes stage, which covers the period from the notification of the statement of objections to the adoption of the final decision, must enable the Commission to reach a final decision on the infringement concerned (see judgment of 12 December 2012 in Almamet v Commission, T‑410/09, ECR, EU:T:2012:676, paragraph 24 and the case-law cited).
67 The measures of inquiry adopted by the Commission during the preliminary investigation stage — in particular, the requests for information and the inspections under Articles 18 and 20 of Regulation No 1/2003 — suggest, by their very nature, that an infringement has been committed and may have a significant impact on the situation of the undertakings suspected. Consequently, it is necessary to prevent the rights of the defence from being irremediably compromised during that stage of the administrative procedure since the measures of inquiry taken may be decisive in providing evidence of the unlawful nature of conduct engaged in by undertakings for which they may be liable. The Commission is thus obliged to state, as precisely as possible, what it is looking for and the matters to which the inspection must relate (see, to that effect, Almamet v Commission, cited in paragraph 66 above, EU:T:2012:676, paragraphs 26 to 29 and the case-law cited).
68 Similarly, it is appropriate to note five categories of safeguards provided to the undertakings concerned in the context of inspections: first, the statement of reasons on which inspection decisions are based; secondly, the limits imposed on the Commission during the conduct of inspections; thirdly, the impossibility for the Commission to carry out an inspection by force; fourthly, the intervention of national authorities; and, fifthly, the existence of ex post facto remedies (see, to that effect, judgment of 6 September 2013 in Deutsche Bahn and Others v Commission, T‑289/11, T‑290/11 and T‑521/11, under appeal, ECR, EU:T:2013:404, paragraph 74). In the present case, the applicants’ argument that the inspectors had not sufficiently informed the persons concerned by the inspection of their obligations and the possible penalties in the event of non-compliance with them comes, in essence, within the first two of the abovementioned categories.
69 In the first place, it has been held that the purpose of the statement of reasons on which an inspection decision is based is to show that the operation carried out on the premises of the undertakings concerned is justified. The statement of reasons must therefore state the suppositions and presumptions that the Commission wishes to investigate (Deutsche Bahn and Others v Commission, cited in paragraph 68 above, EU:T:2013:404, paragraph 75). In addition, that decision must comply with the requirements of Article 20(4) of Regulation No 1/2003 (see paragraph 2 above).
70 It must be found that those requirements have been met in this case. It is apparent, in particular, from Article 1 of the inspection decision that the applicants were clearly informed of the scope of their duty to cooperate in the context of the inspection. They were, inter alia, required to surrender the accounting books and any other business records, regardless of the form in which they were deposited, required for the purposes of the checks carried out by the inspectors for the duration of the inspection. Article 3 of the inspection decision provided for penalties for non-compliance with the obligations laid down in Article 1. In particular, Article 3(a) of the inspection decision stated that a fine could be imposed where the undertakings refuse to submit to the inspection, whether intentionally or negligently.
71 As the Commission correctly contends, it must be found that the inspectors were under no obligation to point out to the persons concerned that infringements could result in a fine. It is sufficient, in order to safeguard the rights of the defence, that the inspection decision and the explanatory note were correctly notified to the authorised persons within the applicant companies. The duty of cooperation arises as soon as the inspection decision is communicated, not from when a particular individual becomes aware of it (see paragraph 45 above).
72 In the second place, the Court observes that explanatory notes, notified to undertakings together with contested decisions, properly explain the substance of the principle of respect for defence rights and the principle of good administration, as they are perceived by the Commission. The explanatory notes explain how certain stages of the inspection should be conducted and contain useful information for undertakings when their representatives have to assess the extent of their duty of cooperation (see, to that effect, Deutsche Bahn and Others v Commission, cited in paragraph 68 above, EU:T:2013:404, paragraphs 83 and 84).
73 The explanatory note provided to the applicants clarified, in particular, the following aspects: the Commission’s obligation to notify the decision authorising the inspection (paragraph 3); a non-exhaustive list of rights and powers held by officials (paragraph 4); the right to consult a lawyer (paragraph 6); the procedure for consulting, searching and copying certain electronic documents (paragraphs 10 and 11); the ways of handling the deferred consultation of certain documents stored in an electronic medium (paragraphs 11 and 12); and the conditions for the confidential handling of certain information or business secrets following the inspection (paragraphs 13 and 14). Paragraph 15 detailed the manner in which seals were to be affixed.
74 The parties agree that the inspection decision and the explanatory note were notified to Mr J. when the inspectors arrived at the applicants’ premises, on the first day of the inspection (see recital 18 of the contested decision). In so doing, the Commission ensured that the guarantees referred to in paragraph 68 above were afforded.
75 In particular, the inspection decision includes the information provided for in Article 20(4) of Regulation No 1/2003. The Commission took care to state the names of the recipients, the reasons which led it to suspect the existence of unlawful practices, the type of suspected practices thought to be anti‑competitive, the affected market for goods and services, the geographical market where the alleged practices applied, the relationship between those practices and the conduct of the undertaking to which the decision was addressed, the officials authorised to carry out the inspection, the means at their disposal and the obligations incumbent on the competent staff of the undertaking, the date and places of the inspection, the penalties risked in the event of obstruction, and the possibility of and prerequisites for bringing legal action. The Commission therefore fully respected the applicants’ rights of defence and the applicants’ other arguments cannot call in question that finding.
76 As regards the argument that there is no evidence in the Commission’s file of how it satisfied itself that the persons concerned by the inspection were correctly informed of their obligations and the consequences of non-compliance with them, it is apparent from the foregoing that all the relevant information was communicated to Mr J. when the inspection decision was notified, including the possibility of proceedings for procedural infringements.
77 In particular, the applicants cannot rely on an alleged failure of communication by the Commission’s inspectors in order to justify the unilateral actions of Mr J., who accepted notification of those documents as the person vested with legal representation for the applicants, in ordering the diversion of the incoming e‑mails. The claim that he understood that he had been instructed not to inform anyone of the inspection is therefore inoperative. As is apparent from paragraphs 74 to 76 above, the Commission gave all the required information directly to him. There can therefore be no question of an infringement of the applicants’ rights of defence. In addition, as is apparent from recitals 21 and 22 of the contested decision, the content of which is not disputed by the applicants, Mr J. had identified Mr H. to the inspectors as the person responsible for IT services in order to implement their instructions concerning the blocking of the e‑mail accounts, which proves that he had understood the applicants’ duty of cooperation during the inspection.
78 Contrary to what the applicants claim, it is immaterial that the other persons holding key positions with them were not informed that their e-mail accounts would be blocked. Since the time afforded to the Commission to carry out inspections is strictly limited by the inspection decision, inspectors must be able to assume, once they have communicated their instructions to the undertakings, that the latter will take all necessary measures to implement them, and that they will not have to repeat them. Since the inspection decision and the explanatory note were in the present case notified by the Commission to the authorised persons, it was for the applicants to take all the necessary measures to ensure that the instructions concerning the blocking of the e-mail accounts were fully implemented (see paragraph 45 above). The arguments relating to an alleged lack of information must therefore be rejected, as must the unsubstantiated assertions that Mr J. had told the inspectors of his intention to ask for his e-mails to no longer be sent to his inbox.
79 The Court must reject on the same grounds the argument that, for the protection of the rights of the defence, the Commission has a greater obligation to inform, because, unlike the affixing of a seal which is visible by all and constitutes an exceptional event, the mere blocking of an e-mail account is not apparent as such. After receiving the unequivocal instructions from the inspectors, it was for the applicants to implement them.
80 The argument that the staff of the IT Department was not employed by the applicants cannot succeed either. The fact that the members of the IT Department were paid by J&T Banka and provided their services to the applicants temporarily or the fact that Mr H. was employed by an independent company does not preclude the Commission from finding that they performed tasks for and under the direction of the applicants (see paragraph 46 above). In addition, as the person vested with legal representation, Mr. J. had identified Mr H. to the inspectors as the person responsible for the applicants’ IT services from the outset of the inspection.
81 The claim that there was no time for Mr H. to inform the members of the IT Department and to give them instructions concerning the blocking of the four e‑mail accounts is not substantiated by any evidence. In addition, the applicants’ letter of 30 November 2009 to the Commission, entitled ‘Statement [of] explanations during the inspection pursuant to Art. 20(4) of the Council Regulation No. 1/2003’, makes no reference to such a limitation.
82 It follows from all the foregoing that the first plea in law must be rejected.
The third plea in law
83 The applicants claim that, during the administrative procedure, the Commission demonstrated signs of prejudice against them, in particular by denouncing leaks regarding the inspection, announced by the Czech press and allegedly linked to EPH, so that it infringed the principle of the presumption of innocence. They state that the Commission dwelled on certain facts during the inspection and the administrative procedure for no obvious reason. It follows that the Commission was convinced that the applicants were aware of the inspection and had prepared themselves for it, which is contrary to the obligation to analyse the facts with complete impartiality.
84 It must be stated that, by that argument, the applicants are not referring to the contested decision, but to the statement of objections of 17 December 2010 adopted in relation to them, which was notified to them on 22 December 2010 (see paragraph 19 above). In the application, they criticise ‘the [decision of the] Commission … to include this reference in the [statement of objections]’.
85 It should be noted at the outset that, according to settled case-law, the statement of objections must be couched in terms that, even if succinct, are sufficiently clear to enable the parties concerned properly to identify the conduct complained of by the Commission and, therefore, to enable them properly to defend themselves, before the Commission adopts a final decision. Furthermore, it is settled case-law that that obligation is satisfied if the decision does not allege that the persons concerned have committed infringements other than those referred to in the statement of objections and only takes into consideration facts on which the persons concerned have had the opportunity of making known their views (see judgment of 28 February 2002 in Compagnie générale maritime and Others v Commission, T‑86/95, ECR, EU:T:2002:50, paragraph 442 and the case-law cited). The Commission may, in the light of the administrative procedure, revise or supplement its arguments of fact or law in support of its objections (judgment of 22 October 2002 in Schneider Electric v Commission, T‑310/01, ECR, EU:T:2002:254, paragraph 438).
86 The present argument must be assessed in the light of the foregoing considerations.
87 At point 13 of the statement of objections of 17 December 2010, in the facts, the Commission states as follows:
‘It should be mentioned that the threat of upcoming inspections by the Commission had been reported by Euro.cz (which is linked to EPH) on 23 November 2009, ie. one day before the inspection started. The press article contains a statement of Mr [M.] (External public relations expert working for both J&T IA and EPH), who was interviewed as a spokesperson of EPH. Mr [M.] stated that considering the company’s market share and the real market situation, the initiation of proceedings against the company would be very surprising but that the company would not oppose such proceedings. On 23 November 2009, at 17 h 47, Mr [M.] informed by email inter alia Mr [K.] (executive director of J&T IA and chairman of the board of directors of EPH), Mr [S.] (Legal Counsel of J&T IA and EPH) and Mr [J.] about the interview and attached the link to the article on the Euro.cz. website.’
88 First, the argument based on the wording of point 13 of the statement of objections must be rejected, since it is based on a misreading of that statement. It is not apparent from point 13 thereof that the Commission accused EPH or Mr M. of being the source of the leaks, even though it refers to a link between the company that reported the possible inspections and EPH. In addition, it is apparent from point 14 of the statement of objections, in which the Commission refers to ‘the background that the threat of upcoming inspections had been reported by the [national press]’, that the Commission emphasises the inspectors’ reminder to Mr J. of the duty of cooperation during the inspection, in the context of the subsequent difficulties in question.
89 Secondly, the Commission did not, in any event, state in either the supplementary statement of objections of 15 July 2011 or the contested decision that the applicants were the source of the leaks. It is moreover common ground between the parties that the leaks were not mentioned in the contested decision. The only reference to the press article in question is in recital 101 of the contested decision, which addresses the arguments raised by the applicants concerning the specific circumstances, and is worded as follows:
‘Mr [M.] is the Public Relations Expert for the parties and also acted as their spokesperson. Even if he does not take the business decisions himself, there is considerable likelihood that he is informed about important business matters. Also, in his function as a spokesperson of the parties, he made a press statement one day before the inspection about the threat of an upcoming antitrust investigation into the Czech electricity market.’
90 Consequently, the Commission rejected the argument that Mr M. was not involved in the applicants’ activities on the market and it makes no mention of leaks relating to the inspection. The leaks were not therefore a factor taken into consideration by the Commission when setting the amount of the fine. In addition, it is not alleged in the contested decision that the applicants had been warned of the inspection. The fact that the unblocking or Mr M.’s account was considered a negligent infringement (recital 70 of the contested decision) shows that the Commission did not take into account Mr M.’s alleged knowledge concerning the inspection.
91 Thirdly, the argument that the Commission’s alleged bias against the applicants explains why it ‘kept insisting during the inspection and the administrative process for no obvious reason’ is merely an assertion, which is not substantiated by any evidence.
92 Fourthly, the arguments relating to the Commission’s alleged lack of care and attention, the limited effects of the alleged refusal to submit to the inspection and other administrative procedures must also be rejected. Those arguments are, in essence, the same as those already rejected in the examination of the second plea in law. It must be borne in mind in that regard that the Commission ascertained two incidents constituting an infringement of procedure, the facts of which have not been challenged by the applicants before the Court.
93 It is clear from the foregoing considerations that the Commission did not infringe the principle of the presumption of innocence during the administrative procedure. The third plea in law must therefore be rejected in its entirety.
The fourth plea in law, alleging infringement of the principle of proportionality when determining the amount of the fine
94 Since the first three pleas in law have been rejected, it is necessary to examine the fourth plea in law, raised in the alternative.
95 In so far as the applicants claim not to understand how the amount of the fine was calculated in the contested decision, the Court considers it appropriate, in the first place, to examine whether the contested decision is vitiated by a failure to state reasons in that regard.
96 According to settled case-law, the statement of reasons required by Article 296 TFEU must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in such a way as to enable the persons concerned to ascertain the reasons for it and to enable the competent Court of the European Union to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see E.ON Energie v Commission, cited in paragraph 39 above, EU:T:2010:516, paragraph 277 and the case-law cited).
97 In the present case, the criteria on which the Commission relied in order to determine the amount of the fine at issue were, in particular, the gravity and the duration of the infringement. It rejected the arguments raised by the applicants intended to prove the existence of mitigating circumstances (recitals 83 to 103 of the contested decision).
98 First, the Commission therefore stressed the importance of imposing a fine with a deterrent effect to ensure that it does not pay off for the company being inspected to falsify e-mails in order to avoid a high fine for breach of substantive law (recital 83). Secondly, it emphasised the special nature of electronic records for which, in its view, the risk of manipulation is higher than that of paper records (recitals 83 and 87). Thirdly, the Commission noted that the infringement at issue comprised two separate incidents (recital 88) and took the view that even if one of the incidents was committed negligently, that did not alter the serious nature of the infringement (recital 89). Fourthly, it considered that the infringement had continued for a significant period of time during the inspection (recital 90).
99 The Commission then rejected the applicants’ arguments concerning mitigating circumstances. In that regard, first, it took the position that the applicants had knowledge of competition law and that EPH was a significant player in the energy sector (recitals 92 to 98 of the contested decision). Secondly, it rejected as irrelevant the applicants’ argument that neither Mr J. nor Mr M. were involved in any of the applicants’ activities on the market (recitals 99 to 101 of the contested decision). Lastly, the Commission found that the applicants had cooperated in a limited manner as regards the establishment of the infringement at issue (recital 102 of the contested decision).
100 The Court must therefore reject the applicants’ argument that the Commission failed to explain, in the contested decision, why it took the view that there was no need to take into account the elements which the applicants had put forward.
101 Since, as regards Article 23(1)(c) of Regulation No 1/2003, the Commission has not adopted any guidelines setting out the method of calculation which it is required to follow when setting fines under that provision and since its reasoning is disclosed in a clear and unequivocal fashion in the contested decision, the Commission was not required to express in figures, in absolute terms or as a percentage, the basic amount of the fine and any aggravating or mitigating circumstances. It follows that the complaint alleging that the statement of reasons for the contested decision was inadequate must be rejected.
102 In the second place, the applicants claim that the fine imposed on them is disproportionate. By the first part, they dispute the Commission’s assessment of the gravity and duration of the infringement. By the second part, they claim that there were mitigating circumstances which were not duly taken into account by the Commission. By the third part, they set out reasons as to why the level of the fine is excessive.
103 The Commission contends that the Court should reject the applicants’ arguments.
104 In that regard, it must be recalled that the principle of proportionality requires that measures adopted by the institutions do not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (see E.ON Energie v Commission, cited in paragraph 39 above, EU:T:2010:516, paragraph 286 and the case-law cited).
105 It follows that fines must not be disproportionate to the aims pursued, that is to say, to the observance of the competition rules, and that the amount of the fine imposed on an undertaking for a competition infringement must be proportionate to the infringement, assessed as a whole, taking account, inter alia, of its gravity. In that regard, in accordance with a consistent line of cases, the gravity of an infringement is assessed in the light of numerous factors, in respect of which the Commission has a margin of discretion (see E.ON Energie v Commission, cited in paragraph 39 above, EU:T:2010:516, paragraph 287 and the case-law cited).
106 In recitals 85 to 89 of the contested decision, the Commission set out the reasons why it had taken the view that the infringement at issue was, overall, of a serious nature.
107 First, in line with the reasoning set out in paragraph 66 above, it must be stated that the power to carry out inspections is particularly important in order to detect infringements under Articles 101 TFEU and 102 TFEU. The Commission was therefore correct to find, in recital 86 of the contested decision, that in Regulation No 1/2003 the legislature had laid down more severe penalties than those provided for under the earlier scheme for the refusal to submit to an inspection, in order to take into account the particularly serious nature of procedural infringements. The Commission was also justified in taking into consideration the need to ensure a sufficient deterrent effect (see, to that effect, judgment of 7 June 1983 in Musique diffusion française and Others v Commission, 100/80 to 103/80, ECR, EU:C:1983:158, paragraph 108), so that undertakings cannot take the view that it would be advantageous for them to only partially produce electronic documents in the context of an inspection, in order to prevent the Commission from establishing a breach of substantive law on the basis of such evidence.
108 Contrary to the applicants’ claims, that deterrent effect is all the more important in the case of electronic files since, having regard to their particular nature, they are much easier and quicker to manipulate than paper files. Even if, as the applicants have argued, the deletion of electronic files in an e-mail account is not always irreversible since they may be recovered through other IT media ‒ which indeed is also possible for certain physical documents which have been shredded ‒ it cannot, however, be denied that the ease with which they may be manipulated poses particular difficulties for the effectiveness of an inspection. Paper files, when seized by the inspectors, remain physically under their control for the duration of the inspection. By contrast, electronic files may be quickly concealed even in the presence of the inspectors. Those inspectors do not therefore know whether they have access to electronic data that are complete and intact. In the present case, when the inspectors were checking the e-mail account of Mr J. that was allegedly blocked, they did not know that the incoming e-mails had been diverted to the server until the last day of the inspection. The Commission did not therefore err in finding, in recital 87 of the contested decision, that when an undertaking does not adhere to the inspectors’ instructions, according to which e‑mail accounts must be inaccessible to their account holders and fully accessible to the inspectors for the duration of the inspection, such non-adherence amounts by its very nature to a serious infringement of the procedural obligations of undertakings during an inspection.
109 Secondly, since the applicants have failed to establish a lack of care and attention in their earlier pleas, they cannot claim in the present plea that the Commission ought to have taken into consideration their lack of knowledge of EU competition law or their limited resources. The Court also rejects their argument that, as the contested decision is the first decision dealing with a refusal to submit to an inspection involving the searching of electronic files, it cannot serve as a precedent given the Commission’s alleged lack of care and attention.
110 First of all, as has been found in paragraphs 70 and 73 above, the applicants were clearly informed, from the outset of the inspection, of their duty to cooperate and their right to consult a lawyer. External lawyers specialised in competition law were present at the applicants’ premises from the afternoon of day two of the inspection (recitals 97 and 98 of the contested decision). Next, even if proved, the factors put forward by the applicants in relation to their small size, their negligible cross-border activities and their recent set-up could not have affected the incomplete production of the e-mail accounts in the present case, in breach of the inspectors’ clear instructions. The Commission therefore rightly rejected all those arguments (recital 93 of the contested decision). Lastly, the arguments based on the allegedly novel nature of the applicants’ infringement cannot succeed either, because the explanatory note set out specifically the possibility of searching electronic files (see paragraph 73 above) and the inspection decision set out the duty of cooperation in the context of such searches.
111 Thirdly, contrary to what the applicants claim, a EUR 2 500 000 fine cannot be considered disproportionate in relation to their size given the circumstances of the case. Under Article 23(1) of Regulation No 1/2003, the Commission is entitled to impose on undertakings and associations of undertakings fines not exceeding 1% of the total turnover in the preceding business year where they commit procedural infringements. As found in recital 103 of the contested decision, the fine imposed on the applicants corresponds to 0.25% of EPH’s annual turnover in 2010. It must be pointed out that the figure for that turnover, which amounted to EUR 990 700 000 (recital 3 of the contested decision), was provided by the applicants during the administrative procedure. They have not put forward any argument demonstrating that the amount of their fine was disproportionate to their size as such.
112 First, it must be found that the argument by which the applicants dispute their market share of 6.9% in terms of production, as found in the contested decision (recital 95), is not substantiated by cogent evidence. They cite a presentation which they made during the administrative procedure, indicating a 1.7% share in terms of ‘installed capacity’ at the date of the inspection, and a 6.7% share for 2012, but do not provide the data enabling that calculation and the source of the data to be checked. They merely assert that they were not ‘already a significant player in the energy sector at the time of the inspection’ (recital 95 of the contested decision). In any event, the applicants’ size is taken into account in so far as Article 23(1) of Regulation No 1/2003 set a maximum ceiling of 1% of their turnover.
113 In addition, the Court must reject the statement that the fine imposed, corresponding to 0.25% of the relevant turnover, is disproportionately high compared with the fine imposed by the Commission on E.ON Energie AG (Case COMP/B-1/39.326 ‒ E.ON Energie AG), which corresponds only to 0.14% of the relevant turnover and is lower than in the present case, despite the existence of aggravating circumstances and the fact that a more obvious and more serious infringement was committed in that case, namely the breach of a seal. In that context, the Court of Justice found that an infringement consisting in a breach of seal, which gives rise to a doubt as regards the integrity of the evidence in the sealed room, was particularly serious by its own nature (E.ON Energie v Commission, cited in paragraph 37 above, EU:C:2012:738, paragraphs 128 and 129). Similar considerations apply to the present case in that the objective of Articles 20(2)(b) and 23(1)(c) of Regulation No 1/2003 is to protect inspections against the threat arising from a lack of integrity of the business data collected by the inspectors. None the less, it must be noted that, unlike the situation concerning E.ON, the circumstances giving rise to the contested decision relate to two separate actions comprising the infringement, one of which was deliberate.
114 In any event, the fact that the Commission in the past imposed fines of a certain level for certain types of infringement does not mean that it is precluded from raising that level within the limits indicated in Regulation No 1/2003, if that is necessary to ensure the implementation of European Union competition policy. The proper application of the those competition rules requires that the Commission may at any time adjust the level of fines to the needs of that policy (see, as regards Regulation No 17, Musique Diffusion française and Others v Commission, cited in paragraph 107 above, EU:C:1983:158, paragraph 109).
115 Fourthly, as regards the account taken of the duration of the infringement at issue, the Commission found, in recital 90 of the contested decision, that the infringement ‘[had] continued for a significant period of time during the inspection at the premises of EPIA and EPH [, that] the e-mail account of Mr [M.] [had been] unblocked from day 1 to day 2 and e-mails of Mr [J.] were diverted from day 2 to day 3 [, and that t]he longer an e-mail account [wa]s unblocked or e‑mails [we]re diverted, the higher the risk that e-mails [we]re tampered with.’
116 First of all, it must be observed that Article 23(3) of Regulation No 1/2003 provides that, in order to determine the amount of the fine, it is necessary to take into account the duration of the infringement as well as its gravity. That provision draws no distinction between the fines imposed for breaches of substantive law and procedural infringements. It follows that, contrary to what the applicants claim, the Commission was entitled to take into account the duration of the procedural infringement at issue, when setting the amount of the fine.
117 Next, the Court must reject the argument that the Commission did not give reasons for its assessment that the infringement had continued for a significant period of time during the inspection. As is apparent from paragraphs 101 and 115 above, the Commission gave reasons to the requisite legal standard for setting the fine at issue, stating, in particular, that the duration increased the risk of the falsification of the electronic data. In response to a question put by the Court at the hearing, the Commission again stressed that the duration of the two incidents directly influenced the infringement at issue inasmuch as the longer it continued, the higher was the risk that the inspectors might not be able to find the expected files in the e-mail accounts.
118 Lastly, the Court must reject the applicants’ argument that the Commission should have taken account of the applicants’ full cooperation with the inspectors when determining the duration of the infringement. It follows from the examination of the second plea in law that that infringement was established by the Commission on the basis of objective evidence not challenged before the Court. The fact that the applicants cooperated with the inspection in other ways, as they argue in paragraph 57 of the reply, cannot influence either the assessment of the duration of the two incidents comprising the infringement or the consideration of mitigating circumstances. It must be noted that such cooperation did not go beyond their obligation to submit to the inspection (see paragraph 40 above).
119 In the third place, as regards the mitigating circumstances put forward by the applicants, it is sufficient to note, first of all, that identical arguments in relation to the applicants’ size and their importance in the energy sector at the material time have already been rejected in paragraphs 111 and 112 above. Since the applicants’ size has been taken into account by the maximum ceiling of 1% of their turnover, it does not in itself warrant a reduction in the amount of the fine imposed.
120 Next, as regards the applicants’ argument that their cooperation enabled the inspectors to establish the circumstances in which the infringement was committed, it must be noted that the Commission took that circumstance into account in the contested decision, although the applicants argue that insufficient account was taken.
121 Recital 102 to the contested decision states:
‘… [I]n setting the amount of the fine the Commission takes into account that the parties have co-operated in such a way which helped the Commission to ascertain the circumstances of the refusal to submit to inspection with regard to e-mails: the responsible IT person acting on behalf of the parties signed minutes describing the unblocking of the e-mail account and the diversion of the e-mails and the parties also sent a letter after the inspection where they acknowledged that both the diversion of the e-mails and the unblocking of the e-mail account occurred during the inspection. At the same time, it should be noted that Mr [H.] did not spontaneously acknowledge the procedural violations in respect of IT matters but only after the inspectors had already found evidence of the failure to submit to inspection (namely, the fact that the account of Mr [M.] could no longer be accessed, and the fact that e-mails no longer arrived in the inbox of Mr [J.]). Likewise, while the parties did not contest certain facts, they have questioned the evidentiary value of the signed minutes and generally sought to put in doubt the existence of any procedural violation.’
122 The Court points out that the two incidents constituting the infringement in the present case were not brought to the inspectors’ attention by the applicants. In both cases, the inspectors noticed an irregularity in the e-mail accounts allegedly under their control and had to investigate why their access to the e-mails had been disrupted (see paragraphs 11 and 14 above). In addition, the applicants disputed the evidential value of the minutes (see paragraph 12 above), although not before the Court (see paragraph 34 above). Since there are at present no guidelines for setting the amount of fines of a procedural nature, reasons were stated to the requisite legal standard in the contested decision (see paragraph 101 above) and having regard to the applicants’ equivocation in the establishment of the circumstances of the refusal to submit to the inspection, the Court finds that the Commission took sufficient account of their cooperation when it set the amount of the fine.
123 Lastly, as regards the argument that the inspection was neither necessary nor warranted since there was no material proof that the case was well-founded, the Court refers to the considerations set out in paragraph 55 above. In addition, as the applicants confirmed in reply to a question from the Court at the hearing, they did not oppose the inspection decision either during the administrative procedure or before the Court (see paragraph 4 above).
124 It follows from all the foregoing considerations that the fine imposed on the applicants is not disproportionate.
125 The fourth plea in law must therefore be rejected and the action dismissed in its entirety.
Costs
126 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
127 As the applicants have been unsuccessful, they must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby:
1. Dismisses the action;
2. Orders Energetický a průmyslový holding a.s. and EP Investment Advisors s.r.o. to pay the costs.
Frimodt Nielsen | Dehousse | Collins |
Delivered in open court in Luxembourg on 26 November 2014.
[Signatures]
Table of contents
Legal context
Background to the dispute
Procedure and forms of order sought
Law
The second plea in law, alleging misapplication of Article 23(1)(c) of Regulation No 1/2003
Negligently allowing access to a blocked e-mail account
The intentional diversion of incoming e-mails to a server
The first and third pleas in law, alleging, respectively, infringement of the rights of defence and infringement of the presumption of innocence
The first plea in law
The third plea in law
The fourth plea in law, alleging infringement of the principle of proportionality when determining the amount of the fine
Costs