On 25 September 2018, the European Commission sent a Statement of Objections to ZSSK, a Slovak rail company, alleging that it had obstructed a dawn raid by giving incorrect information and deleting data from a laptop.
The dawn raid was carried out at the company’s premises in June 2016 as part of a cartel inquiry into the rail passenger transport sector in several Member States. The Commission suspected that the companies concerned had entered into anti-competitive agreements aimed at shutting out competing rail passenger transport operators from the market.
The power to conduct dawn raids is an important tool for competition authorities in detecting infringements of competition law. Commission is entitled to search all rooms and means of transport relating to the investigation and can examine and copy business documents, whatever the storage media (laptops, desktops, tablets, mobile phones, CD-ROMs, DVDs, USB sticks, etc.).
During such an investigation, companies must fully cooperate with the officials and any obstruction can result in a fine of a maximum of 1% of their annual total turnover.
In this case, the Commission suspected ZSSK of having misinformed the investigators about the location of an employee’s laptop and in the meantime having reinstalled the laptop with a new operating system, which resulted in an irrecoverable loss of the stored data.
A Statement of Objections is the first formal step in the European Commission’s investigations into possible violations of EU antitrust rules. With this Statement, the Commission informs the parties of its objections and the companies can then examine them, reply in writing and request an oral hearing to defend their case. Therefore, ZSSK could still be found not guilty at the end of the procedure.
The current investigation is not unique. Other companies have received heavy fines for obstructing Commission inspections in the past. In 2008, E.ON was fined EUR 38 million for breaking the seal of an office room during a dawn raid, while in 2011 French company Suez Environnement was fined EUR 8 million for similar behavior. In 2012, Czech companies EPH and J&T Investment Advisors were fined EUR 2.5 million for diverting incoming e-mails and blocking an e-mail account.
Therefore, companies must be vigilant and well prepared in the event of a dawn raid by the European Commission or a national competition authority. As dawn raids have recently become more frequent, it is essential to train staff and provide useful guidelines to avoid fines and prevent damage to the company’s reputation.
Hanne Baeyens, Associate, hanne.baeyens@cms-db.com
Annabelle Lepièce, Partner, annabelle.lepiece@cms-db.com
