European Commission charges Slovak rail company with dawn raid obstruction

On 25 September 2018, the European Commission charged Slovak rail company ZSSK with obstructing a dawn raid. The Commission suspects ZSSK of misinforming investigators about the location of an employee’s laptop and meanwhile reinstalling a new operating system on the laptop, resulting in an irrecoverable loss of the stored data.

The power to carry out inspections is one of the Commission’s most important investigative tools to detect infringements of the antitrust rules.

During an inspection, inspectors are empowered – among other things – to examine and take copies of documents related to the business, irrespective of the medium on which they are stored (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.

Margrethe Vestager, Commissioner in charge of competition policy, said: 

“Companies have the obligation to provide correct information when we investigate. Also during inspections. They should not tamper with the requested data in any way. Such behaviour would threaten the integrity and effectiveness of our investigations. We want to make sure that companies comply with our rules.”

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.

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 EU 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.