COMPETITION • EUROPEAN LAW • PROCEDURE
Undertakings are liable to pay a fine of up to 1% of the total turnover achieved in the preceding business year when they intentionally or negligently fail to comply with their obligations with regard to inspections (Regulation No 1/2003, Art. 23). This is the case when they submit in incomplete form the required records or other professional documents or do not submit to inspections ordered in a decision, in particular by refusing access to their premises to Commission inspectors before the arrival of their lawyers. A passive response or the provision of only part of the information requested characterizes a refusal to cooperate. A temporary refusal by the undertaking’s counsel to grant the investigating office access to the office of one of the directors is sufficient to consider that the undertaking has refused to comply with the audit decision, without the Commission being required to establish that the delay caused by the refusal may have resulted in the destruction or concealment of documents. The undertakings concerned by the inspection have the obligation to submit to the investigative operations and their behavior must not jeopardize the inspection. This is the case when the undertaking makes inaccurate statements about the location of a manager’s office or does not grant inspectors exclusive access to the requested e-mail accounts, without it being necessary to check whether messages have been manipulated or deleted or whether the person concerned had personal knowledge of the measure. The procedural infringement is characterized even if no infringement of substantive law is subsequently imputed to the undertaking. The same applies where undertakings provide an inaccurate or misleading reply to a request for an oral explanation, fail to correct that reply within the time-limit set, fail or refuse to provide a comprehensive reply on facts relevant to the object and purpose of the inspection ordered by decision, or break the seals affixed by Commission officials. The Commission may also impose a penalty payment of up to 5% of the average daily turnover of the undertaking in the preceding business year for each day of delay to compel it to submit to the inspection (Regulation No 1/2003, Art. 24(1)(e)).
