EU Fines IFF €15.9M for Deleting WhatsApp Messages in Antitrust Probe

The European Commission has imposed a €15.9 million fine on International Flavors & Fragrances Inc. and International Flavors & Fragrances IFF France SAS (together ‘IFF’) for obstructing a Commission inspection in 2023. The fine was levied after a senior IFF employee intentionally deleted WhatsApp messages exchanged with a competitor during the EU inspection.

The Commission’s Investigation

In March 2023, the European Commission conducted inspections at the premises of various companies in the consumer fragrance industry. During these inspections, the Commission reviewed the mobile phones of several IFF employees. It was discovered that a senior employee had deleted WhatsApp messages containing business-related information exchanged with a competitor. This deletion occurred after the employee was informed about the Commission’s inspection.

Upon detecting the deletion, IFF immediately acknowledged the facts and cooperated with the Commission by assisting in the recovery of the deleted data.

In March 2024, the Commission formally opened proceedings against IFF for obstructing its investigation. IFF admitted liability and accepted the maximum possible fine under the circumstances.

The Fine

Under Regulation No 1/2003, the Commission has the authority to fine companies up to 1% of their total turnover for intentionally or negligently obstructing an antitrust investigation. The severity and duration of the infringement are considered when setting the fine amount.

The EU Commission deemed IFF’s actions as very serious, particularly because the deletion of WhatsApp messages occurred after the employee was notified of the inspection. Furthermore, the Commission was not informed about the deletion; instead, inspectors discovered it themselves during the review of the mobile phone.

Given these factors, the Commission decided on an overall fine amounting to 0.3% of IFF’s total turnover. However, due to IFF’s proactive cooperation during and after the inspection, the Commission reduced the fine by 50%, resulting in a €15.9 million penalty, which represents 0.15% of IFF’s total turnover.

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This decision marks the first time the Commission has imposed a fine for the deletion of messages exchanged via social media apps like WhatsApp on a mobile phone.

Regulatory and Forensic Details

Regulation No 1/2003 grants the Commission the power to conduct inspections at the premises of companies suspected of breaching EU competition rules. Companies must comply with inspection orders and take all necessary measures to preserve available evidence. Inspectors are authorized to examine and copy books and records related to business operations, regardless of the medium on which they are stored.

The Commission’s inspection team includes Forensic IT experts who utilize advanced forensic tools to detect any deletion or manipulation of electronic information. The Commission continually invests in forensic capabilities, including up-to-date software and hardware, to uncover any tampering during inspections.

Cooperation Procedure

Inspired by the well-established cartel settlements procedure, the cooperation procedure can be used when companies are willing to acknowledge their liability for infringing EU competition rules. This framework allows for a simpler and faster procedure, providing cooperating companies with a reduction in fines.

Source: EC Europa EU