On May 26, 2020, the Paris Court of Appeals confirmed the €0.9 million fine imposed on Akka Group for obstructing dawn raids conducted on its premises, including by breaking seals. This was the second decision issued by the FCA for dawn raid obstruction and the first one for breaking seals.
On May 22, 2019, the FCA fined Akka Group (“Akka”) €0.9 million for obstructing dawn raids conducted in November 2018 on Akka’s premises. The FCA found, in particular, that an employee had intentionally removed a colleague from an internal email chain while the computer of that colleague was being searched by the FCA’s agents. This employee also admitted to deleting other emails during the dawn raid. The FCA also found that an employee had negligently broken a seal affixed to an office door during the dawn raid.
Akka appealed the decision. Its principal claim was that (i) the alleged facts did not constitute obstruction under Article L. 464-2(5), 2° of the French Commercial Code, and (ii) Akka could not be held liable for its employees’ conduct, nor for the conduct of its subsidiaries.
On May 26, 2020, the Paris Court of Appeals rejected Akka’s appeal.
The legal test applicable to obstruction
Akka first argued that the obstruction prohibition set out in Article L. 464-2(5), 2° of the French Commercial Code does not cover the breaking of seals, the refusal to cooperate during a raid or negligence because it does not expressly cite these practices. The Court rejected this argument. It held that the article only provides examples of practices qualifying as obstruction, and grants the FCA the power to sanction any acts of obstruction “without limitation.”
Akka argued that the FCA extensively interpreted the term “obstruction” under Article L. 464-2(5), 2° of the French Commercial Code, in violation of the principle of legality of offences. The Court rejected this argument as well, holding that the definition of obstruction is sufficiently precise for companies to foresee what types of practices will fall under this qualification. It added that the legal concept of “obstruction” is common in business law and has been applied since the enactment of Article 23(1) of Regulation 1/2003.
Akka also claimed that establishing obstruction requires a demonstration of both intent and finality. It argued that none of these two elements had been established in this case, because (i) the affixed seal had been broken due to mere negligence and (ii) none of the employees’ acts had had an effect on the FCA’s investigation. However, the Court considered that acts that “tend to” impede an investigation can constitute obstruction, regardless of whether or not these acts were deliberate.
Company liability for obstructive conduct on the part of employees and parent company liability
Akka also claimed that it should not be held responsible for acts committed by its employees. Moreover, it contended that the parent liability principle – applicable to antitrust infringements – should not apply in the present case. To support these claims, Akka argued that the infringements at issue have been committed by employees acting independently, whereas Article L.464-2 refers to undertakings. It further argued that obstruction cases, which are allegedly “purely procedural,” should not necessarily abide by the same principles as antitrust infringement cases. The Court rejected these claims, holding that the rules holding a company liable for its employees’ anticompetitive practices and parent company liability rules also apply to procedural obstruction cases. Thus, a company may be held liable for its employees’ acts of obstruction even if the company’s senior management was not aware of the acts or if the employee who committed the act did not hold a delegation authority.
The Paris Court of Appeals confirmed the FCA’s extensive interpretation of the notion of obstruction under Article L 464-2, V, 2° of the French Commercial Code, consistent with the EU case law. Indeed, it held that acts that can obstruct or delay proceedings can amount to obstruction, even if they were not performed intentionally. Unsurprisingly, it also confirmed that the principles on companies’ liability for their employees’ conduct and parental liability do apply to obstruction cases.
 Article 23(1) of Regulation 1/2003 provides inter alia that the Commission may fine undertakings for refusing to submit to inspections and breaking seals, whether intentionally or negligently. See Council Regulation (EC) No 1/2003 of December 16, 2002 on the implementation of the competition rules laid down in Articles 81 and 82 of the Treaty.
 Akka claimed that the employee that broke the affixed seal was only looking for sweets. The Court questions the veracity of this claim.
 Judgment of the Paris Court of Appeals of May 27, 2020, para. 63.
 Judgment of the Paris Court of Appeals of May 27, 2020, para. 54.
 See, e.g., ECJ judgment of November 22, 2012, E.ON v Commission, case C-89/11 P, in which the ECJ confirmed a Commission decision fining E.ON € 38 million for negligently breaking seals affixed during a dawn raid. Also see Commission decision of May 5, 2011, Suez Environnement, COMP/39.796, para. 70 (fine for negligently breaking seals) ; and Commission decision of March 28, 2012, EPH and others, case COMP/39.793 (fine for diversion of emails in the context of an inspection).