Employee of Suez Environment by negligently breaking an European Commission seal costs the Suez Group 8 million euros

The European Commission, by Decision of May 24, 2011¹, applied a fine of 8 million euros to Suez Envireonment and its wholly owned subsidiary Lyonnaise des Eaux France due to the breach of a seal affixed in a door during within an antitrust inspection at the headquarters of Lyonnaise des Eaux France carried out by the Directorate General for Competition of the European Commission and by the French competition authority in April 2010.

EU Regulation no. 1/2003 on the application of Articles 101 and 102 of the Treaty on the Functioning of the European Union, provides that the European Commission can impose fines on companies of up to 1% of their turnover for breaking, either deliberately or negligently, seals affixed by the Commission during an inspection. Within an investigation into alleged antitrust conducts in the European market of water and waste water purification markets, in April 2010, the European Commission conducted a surprise inspection at the headquarter premises of Lyonnaise des Eaux France.

The European Commission agents, being unable to complete the inspection in a single day, sealed the doors of several office rooms, including the door of room B.508 at the end of the day on April 13, 2010.

The Commission’s seals are plastic stickers, 20 centimeters long by 7 centimeters wide, which, if removed, do not tear but the word “OPENVOID” irreversibly appears in red on its plastic surface. In addition to affixing the seals, the Commission now also takes photographs of the places where the seals are affixed so that no doubts afterwards arise about a seal condition. From our perspective, this new procedure of taking photographs of the seals following their placement has been adopted by the Commission services, pursuant to the relevant issues that were raised by the E.ON company in a prior procedure which culminated in the application of a 38 million euro fine to E.ON due to the breach of a seal affixed by the Commission – being, notwithstanding, the fine afterwards confirmed by ruling of the General Court of the European Union², with an appeal now pending to the European Court of Justice, registered as case C-89/11 P.

In the Lyonnaise des Eaux France case, the Commission agents on April 14, 2010, when they returned in the following day to the premises of the company to continue the antitrust inspection, noticed that the term “OPENVOID” was visible in the seal affixed by the Commission in the door of office room B.508. Within the subsequent investigation on the seal breach, conducted by the Commission and also by the company, it was considered proved that the door of the room in which the seal appeared as “OPENVOID”: (i) had not been closed with a key; (ii) the company staff the day before had diligently placed a warning paper (with 21x27 centimeters) in the door stating “ATTENTION: do not open or touch this door under any grounds”; and (iii) a company worker looking for a colleague in the company facilities negligently tried to open the door of office room B.508 at 10 a.m. on April 14 – even though he did not enter the room has he felt some resistance when trying to open the door (due to the seal) and simultaneously he saw the Commission seal.

Thus, eventually if the worker had taken that morning a strong cappuccino coffee he would had been able to see the Commission seal and also the warning sign diligently placed by the company on that door...

Pursuant to the above factual framework and to the circumstance that the two companies did not contest the facts and accepted the findings of the Commission, both were sanctioned, as a result of negligence, with a joint and severally fine of 8 million euros. Even if we take into account the general need of preventing companies from breaking seals affixed by the European Commission within antitrust dawn-raids, the amount of the applied fine seems excessive as the two companies voluntarily and without delay passed on to the Commission a great deal of information shedding light on the facts which facilitated the Commission’s investigation and in this context it was also found that the Lyonnaise des Eaux France worker did not even enter the office room where the breached seal had been affixed.

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