1. 

This appeal has been brought by E.ON Energie AG ( 2 ) against the judgment of the General Court of 15 December 2010 in E.ON Energie v Commission. ( 3 ) In the judgment under appeal, the General Court confirmed the legality of Commission Decision C(2008) 377 final of 30 January 2008 ( 4 ) which, on the basis of Article 23(1)(e) of Regulation (EC) No 1/2003, ( 5 ) fined the appellant EUR 38 million for breaking a seal.

2. 

Under that provision, the European Commission may by decision impose on undertakings and associations of undertakings fines not exceeding 1% of the total turnover in the preceding business year where, intentionally or negligently, seals affixed in accordance with Article 20(2)(d) of Regulation No 1/2003 by officials or other accompanying persons authorised by the Commission have been broken. This is the first decision applying that provision. ( 6 )

3. 

The present appeal, in particular the sixth ground, raises a question of principle concerning the nature and extent of the judicial review which the General Court must carry out in assessing the amount of the fine imposed by the Commission for an infringement of the competition rules. In my opinion, the other grounds raise no legal difficulty in so far as the appellant, in its written pleadings and in the course of the hearing, basically called into question the factual findings of the General Court, which do not fall within the jurisdiction of the Court of Justice on an appeal.

4.

The background of the case, the procedure before the General Court and the judgment under appeal may be summarised as follows. ( 7 )

5.

By decision of 24 May 2006, in accordance with Article 20 of Regulation No 1/2003, the Commission ordered an inspection at the appellant’s premises in Munich (Germany) in order to ascertain the validity of suspicions as regards its participation in anti-competitive agreements.

6.

The inspection, which was carried out by four representatives of the Commission and six representatives of the Bundeskartellamt (the German competition authority), began in the afternoon of 29 May 2006. As it could not be completed on the same day, the documents selected for more detailed examination were stored in room G.505, the door of which was locked and an official seal was affixed to it. An official record of sealing was drawn up and signed by the representatives of the Commission, the Bundeskartellamt and the appellant.

7.

At around 8.45 a.m. on 30 May 2006, the inspection team found that the condition of the seal at issue, which was still adhering to the door of room G.505, had changed. When a plastic seal, such as the seal at issue, is broken, the white adhesive by means of which the seal is fixed to the substrate remains on the latter in the form of ‘VOID’ markings distributed over the whole surface of the adhesive label. The removed seal becomes transparent at those points, so that the ‘VOID’ markings are also visible on the seal.

8.

At around 9.15 a.m., the leader of the inspection team opened the door of room G.505 and a broken-seal report was then drawn up and signed by a representative of the Commission and of the Bundeskartellamt. The report stated that the entire seal was displaced by about 2 mm upwards and sideways so that traces of adhesive were visible at the lower right-hand edges of the seal and that ‘VOID’ markings were clearly visible over the entire surface of the seal, which was nevertheless still affixed crosswise from the door frame to the surface of the door and was not torn. During the afternoon, some digital photographs of the seal at issue were taken with a mobile telephone.

9.

The appellant, which refused to sign the broken-seal report, stated that no change in the documents stored in the room was found.

10.

On 2 October 2006, the Commission sent the appellant a statement of objections which concluded that the seal at issue had been broken and that, because of the appellant’s management authority in the building, the appellant had to be held responsible for breaking the seal. The appellant submitted its observations, accompanied by several expert opinions concerning the reaction of the seal to certain stresses.

11.

On the completion of that procedure, the Commission adopted the contested decision, finding that the appellant had broken a seal and, at least negligently, infringed Article 23(1)(e) of Regulation No 1/2003, which resulted in a fine of EUR 38 million.

12.

On 15 April 2008, the appellant brought an action before the General Court for annulment of the contested decision on the basis of nine pleas in law. In essence, the appellant complained that the Commission failed to have regard to the principles governing the burden of proof in relation to the breaking of the seal at issue and that the Commission had not affixed the seal properly. The appellant also complained that the Commission did not consider ‘alternative scenarios’ which could have explained the condition of the seal owing to the fact that the date by which it should have been used was past and that the cleaner had used a maintenance product called Synto, and also to air humidity and vibrations of the door. The appellant also claimed that the Commission had breached the principle of the presumption of innocence and infringed Article 23(1) of Regulation No 1/2003 inasmuch as no fault on the appellant’s part was proved. Finally, regarding the fine, the appellant claimed that the contested decision failed to meet the requirement laid down by Article 253 EC for reasons to be stated and was inconsistent with the principle of proportionality.

13.

In the judgment under appeal, the General Court dismissed the action, brought by the appellant.

14.

In support of its appeal, the appellant asks the Court to set aside the judgment under appeal and to annul the contested decision. Alternatively, the Court is asked to set aside the judgment under appeal in so far as it orders the appellant to pay the costs of the action, to grant the applications made at first instance and to annul the contested decision in so far as it imposes a fine on the appellant and, in the further alternative, to set aside the judgment under appeal and refer the case back to the General Court. In addition, the appellant asks that the Commission be ordered to pay the costs.

15.

The Commission contends that the Court should dismiss the appeal and order the appellant to pay the costs.

16.

The appellant puts forward six grounds in support of its appeal.

17.

The first two grounds of appeal are directed at the General Court’s findings concerning the rules governing the burden of proof and the taking of evidence. The third, fourth and fifth grounds relate to the Court’s findings on the question of whether the seal at issue was properly affixed and its condition. The sixth ground is directed at the Court’s finding on the seriousness of the infringement and the proportionality of the fine imposed on the appellant.

18.

At first instance, the General Court considered the appellant’s submissions concerning disregard of the burden of proof at paragraphs 48 to 64 of the judgment under appeal.

19.

Referring to the relevant case‑law, the General Court observed that a court cannot conclude that the Commission has proved the existence of the infringement at issue to the requisite legal standard if it still entertains doubts on that point, in particular in proceedings for the annulment of a decision imposing a fine, this being in accordance with the principle of the presumption of innocence resulting in particular from Article 6(2) of the European Convention on the Protection of Human Rights and Fundamental Freedoms. ( 8 ) The Court rejected the appellant’s claim that there was an analogy with the case‑law on concerted practices, according to which it is sufficient if an undertaking puts forward an argument which shows the facts established by the Commission in a different light for an infringement to be found. The Court observed that this did not apply because the Commission relied on direct evidence. At paragraph 56 of the judgment under appeal, the General Court therefore explained that ‘when the Commission relies on evidence which is in principle sufficient to demonstrate the existence of the infringement … it is for the undertaking concerned to prove to the requisite legal standard, on the one hand, the existence of the circumstance relied on by it and, on the other, that that circumstance calls into question the probative value ( 9 ) of the evidence relied on by the Commission’.

20.

Accordingly, in the present case, the General Court dismissed the appellant’s argument that the Commission should prove, beyond any reasonable doubt, that the change in the condition of the seal at issue found on 30 May 2006 was attributable to the appellant. After observing that, contrary to the Commission’s argument, the plea raised by the appellant was not hypothetical, the Court observed however that the Commission had not disregarded the principles governing the burden of proof. First, recital 44 in the preamble to the contested decision expressly stated that ‘it is the Commission’s duty to submit the facts necessary to prove the breach of the seals’. Secondly, the Court observed that the Commission had based its finding of a broken seal, at paragraphs 75 and 76 of the contested decision, on the condition of the seal on the morning of 30 May 2006, which, according to the Commission, had the word ‘VOID’ all over its surface and traces of adhesive on the back, as was clear from the statements of the Commission inspectors and those of the Bundeskartellamt inspectors and from the findings in the report on the broken seal. Finally, the Court rejected the appellant’s arguments based on alternative explanations concerning the condition of the seal. The Court considered that the allegation that the seal was outdated and the fact that there were no photographs showing the condition of the seal prior to the opening of the door did not add to the burden of proof on the Commission.

21.

By its first ground of appeal, the appellant submits that the General Court erred in law with regard to the distribution of the burden of proof, thereby breaching the principle of the presumption of innocence and the maxim of European Union law in dubio pro reo (in doubt, favour the accused).

22.

After finding, at paragraph 48 of the judgment under appeal, that it was for the Commission to prove the infringements found by it, at paragraph 55 the Court reversed the burden of proof in judging that, where the Commission relies on direct evidence, it is for the undertakings concerned to demonstrate that the evidence relied on by the Commission is insufficient. According to the appellant, the Court disregarded the relevant rules of law in finding that the evidence on which the Commission relied was sufficient to prove the existence of the infringement. The evidence in question, that is to say, the report on the broken seal at issue, the inspectors’ statements and those of the company which made the seal, the photograph of the seal and the expert report, is only indirect evidence originating from the defendant alone. With regard to the breaking of the seal, the appellant submits that the General Court’s assessment is erroneous in so far as it did not take account of the fact that the date by which the seal should have been used had passed. Furthermore, the appellant complains that the Court applied by analogy the judgment in Montecatini v Commission ( 10 ) because, unlike documentary evidence, the breaking of a seal is equivocal evidence, not direct and sufficient evidence.

23.

The appellant adds that the Court erred in law in disregarding the fact that the uncertainty regarding the effectiveness of the seal at issue was attributable to the Commission. First, the Commission had used a seal which was past its use‑by date and, secondly, the Commission had not made the evidence secure before the door of the room was opened. In its reply, the appellant adds that therefore the seal was wrongly affixed because, to be correctly affixed, it was necessary to comply with the manufacturer’s instructions in the technical information leaflet for the product. According to the appellant, the fact that it was impossible to adduce the evidence owing to the Commission’s actions should not prejudice the appellant. Therefore that reverses the burden of proof, so that the General Court ought to have required the Commission to prove that the seal had been correctly affixed and functioned normally, instead of requiring the appellant to prove the contrary. The appellant argues that this ground of appeal is admissible because the distribution of the burden of proof is a question of law.

24.

The Commission contends that this first ground of appeal should be dismissed as it relates to the General Court’s assessment of the facts. Alternatively, the Commission challenges the appellant’s submissions.

25.

Like the Commission, I think the first ground of appeal is inadmissible in view of the nature and extent of the Court of Justice’s judicial review in the context of the appeal.

26.

It has consistently been held that, under Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, an appeal must be limited to points of law and may be based on grounds of lack of competence of the General Court, a breach of procedure before it and infringement of European Union law by the General Court. Therefore, the General Court has in principle sole jurisdiction to find and appraise the facts, except in a case where the factual accuracy of its findings arises from evidence adduced before it. In that case, the Court of Justice has jurisdiction under Article 256 TFEU solely to review the legal characterisation of those facts by the General Court and the legal conclusions it has drawn from them.

27.

Thus, the Court of Justice has no jurisdiction to establish the facts or, in principle, to examine the evidence which the General Court accepted in support of those facts. Provided that the evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the General Court alone to assess the value which should be attached to the evidence produced to it. The appraisal of those facts does not therefore, save where they distort the evidence, constitute a point of law which is subject, as such, to review on appeal by the Court of Justice. ( 11 )

28.

I find that, apart from the rules of law which the appellant claims to have been breached, the appellant concentrates its criticism on the way in which the General Court assessed the evidence before it. The appellant complains that the General Court judged that the evidence adduced by the Commission was sufficient to constitute the infringement and that the Court did not take account, in that context, of the fact that the shelf life of the seal at issue had expired. The appellant therefore gives its own appraisal of the evidence presented to the General Court and makes no submission capable of showing that the Court misinterpreted it.

29.

Furthermore, the appellant does not, in my opinion, show that the General Court, in making its assessment, breached the general principles of law or the procedural rules relating to the burden of proof and the taking of evidence. At paragraphs 48 to 56 of the judgment under appeal, the Court quite rightly set out particularly exhaustively the relevant rules of law and the case‑law on the matter before drawing attention to the implications of the principle of the presumption of innocence in connection with procedures for applying the competition rules. It is in the light of those procedural rules and the case‑law that the General Court, quite rightly, examined and rejected the appellant’s arguments.

30.

Therefore, I propose that the Court dismiss the first ground of appeal as inadmissible.

31.

By its second ground of appeal, the appellant submits that the General Court’s assessment of the principles governing the burden of proof, which I have just set out, is marred by contradictory grounds and an insufficient statement of grounds.

32.

The appellant contends that, at paragraph 56 of the judgment under appeal, the General Court stated that the circumstances relied on by the appellant must ‘call in question the probative value of the evidence relied on by the Commission’. In appraising the circumstances relied on by the appellant to explain the condition of the seal at issue, the Court stated, at paragraph 202 of the judgment under appeal, that the appellant must prove a ‘causal link’ between the circumstance relied on, which in this case is the fact that the seal had exceeded its maximum shelf life, and the appearance of the ‘VOID’ markings. Consequently the Court is said to have disregarded the principle which it itself laid down at paragraph 56 of the judgment under appeal.

33.

The Commission submits that the second ground of appeal is inadmissible as it relates to the General Court’s appraisal of the evidence. In any case, the Commission considers that this ground should be dismissed.

34.

Unlike the Commission, I consider that the second ground of appeal is admissible.

35.

At paragraph 56 of the judgment under appeal, the General Court laid down a rule of law concerning the burden of proof which goes further than the principles already developed in the Mannesmannröhren-Werke v Commission ( 12 ) and JFE Engineering and Others v Commission ( 13 ) judgments to which the Court refers. Consequently this involves an assessment of law and not merely a factual assessment. Therefore, taking account of its powers under Article 256 TFEU, the Court of Justice is, in principle, competent to assess the legality of the General Court’s reasoning.

36.

Within the context of the second ground of appeal, the appellant complains of a contradiction between the principle laid down at paragraph 56 of the judgment under appeal and the way in which it is given effect at paragraph 202. In my view, there is no contradiction.

37.

Where the General Court lays down the principle that the circumstance relied on by the appellant must call into question the probative force of the evidence relied on by the Commission, this obviously presupposes a causal connection between the one and the other. Let me refer to the circumstance mentioned by the appellant, which is the fact that the seal at issue had exceeded its maximum shelf life. This may call into question the probative force of the ‘VOID’ markings on the seal only if it is shown that there is a cause-and-effect connection between the expiry of the shelf life of the seal and the appearance of the markings.

38.

I therefore propose that the Court dismiss the second ground of appeal as unfounded.

39.

The third ground of appeal concerns the General Court’s appraisal at paragraphs 102 to 115 of the judgment under appeal of the question whether the seal at issue was properly affixed.

40.

At paragraphs 102 to 114 of the judgment under appeal, the General Court considered whether the evidence on which the Commission relied supported the conclusion that the seal at issue had been properly affixed. First, the Court found that the record of sealing demonstrated sufficiently that the seal was affixed properly and the Court noted that the appellant made no observation concerning an alleged irregularity. Secondly, referring to the statements of the six Commission and Bundeskartellamt inspectors present during the sealing, the Court found that they confirmed that the seal was affixed properly. Thirdly, the Court observed that the statements of the other four inspectors who had taken part in the inspections did not call into question the probative force of the evidence.

41.

Accordingly the Court found at paragraph 115 of the judgment under appeal that the evidence mentioned in the contested decision supported the finding that the seal at issue had been affixed properly, that it therefore adhered to the door of the room and that it was intact, inasmuch as it was not showing ‘VOID’ markings.

42.

By its third ground of appeal, the appellant alleges in a disorderly way various errors of law which constitute three complaints.

43.

First, the appellant submits that the General Court misrepresented the evidence before it.

44.

In the first place, in deciding whether the seal at issue had been correctly affixed, the Court wrongly took into account the fact that it was only externally intact because the Court found, at paragraph 115 of the judgment under appeal, that the seal was intact inasmuch as it was not showing ‘VOID’ markings at the time that the inspection team left the appellant’s premises. Consequently the Court overlooked the internal intactness of the seal, which could not be apparent on the exterior, during the short period between the application of the seal and the moment when the inspection team left the premises. By neglecting that aspect, the Court disregarded the principles of the rule of law and the right to sound administration enshrined in Article 41 of the Charter of Fundamental Rights of the European Union, ( 14 ) because it was not in a position to determine with the naked eye whether the Commission had acted properly.

45.

In the second place, at paragraph 104 of the judgment under appeal, the General Court is alleged to have misrepresented the report on the affixing of the seal at issue by attributing to it a declaratory nature and probative force which it manifestly does not have as it gives no indication of whether the seal was affixed in an irreproachable manner. In doing so, the Court breached the ‘laws of logic’.

46.

Secondly, the appellant complains that the General Court based its conclusions on the statements of the Commission and Bundeskartellamt inspectors concerning the affixing of the seal. Those statements are said to be irrelevant as the inspectors were unable to assess the internal intactness of the seal.

47.

Thirdly, the appellant considers that the reasoning of the judgment under appeal is erroneous. At paragraph 105 of the judgment, the Court stated that the appellant ‘was perfectly aware of the significance of [the VOID markings]’, although it had no means or opportunity to know the special sensitivity of the seal film and likewise no means or opportunity to verify its specific properties.

48.

The Commission disputes those arguments and considers that, by means of the third ground of appeal, the appellant seeks in fact to call into question the Court’s factual findings, so that this ground is inadmissible.

49.

Regarding the first complaint of misrepresentation of the evidence, it must be observed, first of all, that where an appellant alleges that the General Court misrepresented the evidence submitted to it, the Court of Justice, which, in principle, is not competent to examine the evidence accepted by the General Court in support of the facts, may carry out a judicial review. In that situation, the appellant must then specify the points allegedly misrepresented by the General Court and must show the errors of reasoning which, in its assessment, led the Court to misrepresent those points. In addition, it has consistently been held that such misrepresentation must be obvious from the documents in the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence or obtain fresh evidence. ( 15 )

50.

To assess the admissibility and the merits of that complaint, I shall make a distinction according to whether the appellant refers to the General Court’s assessment of the intactness of the seal at issue or the assessment of the probative force of the report on the affixing of the seal.

51.

In the first case, the appellant’s allegations do not, in my view, indicate misrepresentation of the evidence. In criticising the General Court for failing to take account of internal alterations that may have been made in the seal at issue, the appellant is putting forward, as the Commission notes, its own definition of ‘non-alteration’ of a seal, by reference to which it seeks to measure the Court’s findings concerning the evidence. Consequently the appellant is calling into question the Court’s finding that the seal at issue was intact on the basis of the evidence before it, particularly with regard to the fact that the ‘VOID’ markings were not apparent on the seal at the time when it was affixed and when the inspectors left the appellant’s premises.

52.

I think that this indicates a factual assessment which is not admissible in the context of an appeal for the same reasons as those which I have set out at points 26 and 27 of this Opinion.

53.

As the appellant’s complaints concerning breach of the principles of the rule of law and the right to sound administration arise from the alleged tampering with the seal at issue, they should also be dismissed. In any case, it must be observed that the appellant presents no legal argument which can support specifically those complaints.

54.

In the second case, the appellant complains that the General Court misrepresented the report on the affixing of the seal at issue by according it a probative force, although it gave no indication at all that the affixing of the seal was irreproachable.

55.

In view of the powers conferred on the Court of Justice, a review by it of that argument must be limited to ascertaining whether or not the General Court manifestly exceeded the limits of a reasonable assessment of the report by basing on that document its decision as to whether the seal at issue had been properly affixed.

56.

In the present case, I think it is clear that the report recording the proper affixing of the seal at issue, which was drawn up and signed by representatives of the Commission, the Bundeskartellamt and the appellant, was authentic until proven otherwise. The appellant’s submissions in support of its third ground of appeal do not reveal any material inaccuracy in the General Court’s reading of the report and neither do they mention anything capable of showing that the report contains inaccurate findings or false statements.

57.

Therefore, the appellant cannot contend that the General Court misrepresented the report on the affixing of the seal at issue and that argument must consequently be dismissed as unfounded. I also propose that the Court dismiss the appellant’s argument alleging a breach of the ‘laws of logic’ as a result of the misrepresentation of the abovementioned report.

58.

By its second complaint, the appellant maintains that the General Court erroneously interpreted the statements of the Commission and the Bundeskartellamt inspectors concerning the affixing of the seal at issue. In reality, the appellant is merely criticising the relevance of the statements in the light of the powers of the inspectors who, according to the appellant, were not in a position to evaluate the internal functioning of the seal. It has consistently been held that, provided that the evidence has been properly obtained and the general principles of law and rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the General Court alone to assess the value which should be attached to the evidence produced to it. ( 16 ) In that case, the Court of Justice may, under Article 256 TFEU, review only the legal characterisation of those facts by the General Court and the legal conclusions it has drawn from them. ( 17 )

59.

On that point, however, the appellant has put forward no argument capable of calling into question the General Court’s judicial finding that the seal at issue was properly affixed.

60.

Consequently, in my opinion, the second complaint must be dismissed as inadmissible.

61.

By its third complaint, the appellant submits that there is an error of reasoning on the part of the General Court at paragraph 105 of the judgment under appeal in finding that it, the appellant, was ‘perfectly aware of the significance of [the VOID markings]’, although it had no means or opportunity to know of the special sensitivity of the seal film at issue and likewise no means or opportunity to establish its specific properties.

62.

In my view, that complaint is irrelevant. It is directed against a superfluous ground and the appellant’s criticism of the Court’s finding cannot therefore lead to setting aside the judgment under appeal. ( 18 )

63.

In any case, the appellant’s arguments are, in my opinion, entirely irrelevant. First, the appellant does not show in what way the General Court actually erred in law in its assessment or even adduced contradictory grounds. Secondly, the Court’s assertion must be read in the light of its context. At paragraph 105 of the judgment under appeal, the Court expressly referred to the possibility that the appellant observed the appearance of the ‘VOID’ markings on the seal at issue. If that were so, added the Court, the appellant ‘would immediately have made comments in that regard, given that it was perfectly aware of the significance of such markings’. The comment therefore referred quite specifically to the question of the appearance of the markings on the seal and the appellant’s reaction to it, and it was absolutely not a question of whether the appellant was aware of the physical properties of the seal or its sensitivity to external influences.

64.

In those circumstances, I propose that the Court dismiss the third complaint as unfounded.

65.

In the light of all those factors, I propose that the Court should reject the third ground of appeal as being in part inadmissible and in part unfounded.

66.

In support of the fourth ground of appeal, the appellant complains, in essence, that the General Court rejected the argument that the appearance of the ‘VOID’ markings on the seal was due to the seal at issue having exceeded its maximum shelf life.

67.

At paragraphs 199 to 234 of the judgment under appeal, the General Court considered whether the appellant had shown that there were circumstances capable of affecting the probative force of the evidence on which the Commission based the finding that a seal had been broken. In particular, at paragraphs 202 and 203, the Court considered the argument that the reliability of the sealing film of the seal at issue had been affected by the fact that the seal was out of date. The Court found that the appellant had not proved a causal connection between the exceeding of the maximum shelf life and the appearance of the ‘VOID’ markings on the seal. In support of that assertion, the Court found that the markings had appeared only on the seal at issue even though other seals from the same batch had been used on the other doors and showed no markings. Consequently the Court dismissed the appellant’s argument.

68.

In essence, the appellant questions the statement at paragraph 203 of the judgment under appeal that the alleged exceeding of the maximum shelf life of the seal at issue was not the cause of the ‘VOID’ markings on the seal.

69.

According to the appellant, no reasons are given for that statement as it breaches the ‘laws of logic’. The Court could not exclude such a circumstance on the ground that only the seal at issue showed the ‘VOID’ markings whereas the seals from the same batch which were used on the other doors did not show the markings. It is precisely a characteristic of mass production that a particular defect causes flaws only in isolated products. In addition, in the present case, it is common ground that the other seals were not affixed to doors consisting of soundproof panels and an anodised aluminium frame.

70.

The Commission considers that this ground of appeal is not admissible in so far as the appellant criticises a factual finding of the General Court which cannot therefore be called into question in the context of an appeal.

71.

I consider that the fourth ground of appeal is inadmissible in the light of the principles set out at points 26 and 27 of this Opinion.

72.

In reality, with this ground, based on the lack of a statement of reasons, the appellant criticises a finding by the General Court relating to certain facts before it. The finding, at paragraph 203 of the judgment under appeal, forms part of a factual assessment which cannot be challenged in the context of an appeal as the appellant does not allege any misrepresentation of the facts on which the Court relied.

73.

By its fifth ground of appeal, the appellant criticises the General Court’s findings concerning the condition of the seal at issue on the day after the inspection.

74.

At paragraphs 134 to 146 of the judgment under appeal, the General Court considered whether the evidence adduced by the Commission in the contested decision justified the finding that the seal at issue had been broken. The Court concluded that that was the case in view of the condition of the seal on the morning of 30 May 2006, as described in the breach-of-seal report and the statements by the inspectors who were present at the time. Then, at paragraphs 147 to 156, the Court considered whether the circumstances relied on by the appellant, namely the fact that the ‘VOID’ markings were only very faintly visible and the fact that the Commission wrongly relied on the photographs of the seal at issue, were such as to call into question the probative force of that evidence.

75.

The appellant questions the General Court’s finding at paragraph 146 of the judgment under appeal that the evidence adduced by the Commission supported the conclusion that the seal at issue had been removed from the door of room G.505 during the night of 29 and 30 May 2006 and that that door could therefore have been opened during that period, in the light of the ‘VOID’ markings over the whole surface of the seal. In particular, the appellant complains that the Court found that there was no need to rule on the appellant’s claim that the ‘VOID’ markings on the door frame had not been obliterated and were intact, which meant that there was a ‘false positive reaction’.

76.

On that point, the appellant claims that the Court contradicted its own findings. First, at paragraph 137 of the judgment under appeal, the Court found that it was impossible to affix the seal at issue at the same place as that at which it had been affixed previously. Secondly, at paragraph 149, the Court observed that the appearance of the ‘VOID’ markings indicated that the seal had been broken and the adhesive label displaced. Furthermore, the Court contradicted the Commission’s statement that any repositioning of the seal must cause damage to the lettering, so that the fact that the ‘VOID’ markings were intact proved that any repositioning of the seal after being detached could be ruled out. In addition, the appellant submits that the markings may appear on the door frame, without detachment of the seal, solely as a result of a ‘false positive reaction’. Consequently, in accordance with the principle in dubio pro reo, the same could apply with regard to the part of the seal adhering to the door panel.

77.

Finally, the appellant complains that the General Court obtained no evidence with regard to the condition of the ‘VOID’ markings on the door frame.

78.

The Commission disputes those arguments and considers that the appellant is once again attempting to challenge factual findings, so that the fifth ground of appeal is inadmissible.

79.

Like the Commission, I consider that the fifth ground of appeal is inadmissible.

80.

First, it is very clear from the appellant’s written pleadings, particularly the many references it makes to its application and to the statement in defence of the Commission lodged at first instance, that, in reality, the application seeks to obtain a re-examination of the appellant’s arguments before the General Court and a reassessment of the facts.

81.

However, the Court has held that an appeal is inadmissible if the appellant simply repeats or reproduces verbatim the pleas in law and arguments previously submitted to the General Court without describing and identifying the error of law allegedly vitiating the judgment. In that case, the Court of Justice has held that an appeal amounts in reality to no more than a request enabling the appellant to obtain re-examination of the application submitted to the General Court, which the Court of Justice does not have jurisdiction to undertake. ( 19 ) By contrast, provided that the appellant challenges the interpretation or application of European Union law by the General Court, the points of law examined at first instance may be discussed again in the course of an appeal. Indeed, according to the Court of Justice, if an appellant could not base his appeal on pleas in law and arguments already relied on before the General Court, an appeal would be deprived of part of its purpose. ( 20 )

82.

In the present case, although the appellant identifies, in the heading of its fifth ground of appeal, a breach of the principle in dubio pro reo, I find that it does not explain that error of law which is said to vitiate the General Court’s assessment and nor does it dispute that Court’s interpretation or application of European Union law.

83.

Secondly, regarding the additional inquiries which the General Court ought to have ordered, it has consistently been held that the latter is the sole judge of the need, if any, to obtain additional information to that already available in the cases before it. Whether that information is reliable is a matter for the General Court’s absolute discretion. According to the Court of Justice, that appraisal is not subject to review by it on appeal, unless the parties claim that the evidence submitted to the General Court has been distorted or that the substantive inaccuracy of that Court’s findings is apparent from the documents in the case-file. ( 21 )

84.

There is nothing at all in the context of the appeal to indicate that that is the case here since the General Court’s finding at paragraph 146 of the judgment under appeal is sufficiently supported by the assessment of the different forms of evidence adduced by the Commission which is set out at paragraphs 136 to 145 of the judgment. Therefore, I think that argument is inadmissible and, in any case, it seems to me to be unfounded.

85.

Consequently I propose that the Court dismiss the fifth ground of appeal as inadmissible.

86.

By its sixth ground of appeal, the appellant, in essence, questions the scope of the judicial review undertaken by the General Court in assessing the seriousness of the infringement and determining the amount of the fine imposed under Article 23(1)(e) of Regulation No 1/2003.

87.

At paragraphs 276 to 283 of the judgment under appeal, the General Court considered whether the Commission had given sufficient reasons for the contested decision with regard to the criteria which it had used for determining the amount of the fine imposed on the appellant.

88.

First, the Court observed that the Commission’s reasoning appeared clearly and unequivocally in the contested decision, which stated that the amount of the fine depended on the seriousness of the infringement and the particular circumstances of the case. The Commission made it clear that breaking a seal was a serious infringement and a fine imposed for doing so had to have a deterrent effect. The Commission added that in the present case the inspection was intended to enable the Commission to investigate evidence of breaches of the competition rules and that uncatalogued documents were stored in the sealed room. The Commission pointed out that, in calculating the fine, it had taken account of the fact that this was the first case in which Article 23(1)(e) of Regulation No 1/2003 had been applied and that the appellant, being one of the largest European undertakings in the energy sector, had at its disposal extensive legal expertise and was aware of the substantial fines for breaking seals. Finally, the Commission had expressly rejected the appellant’s arguments concerning extenuating circumstances.

89.

Secondly, the General Court observed, with regard to Article 23(1)(e) of Regulation No 1/2003, that the Commission had not adopted any guidelines setting out the method of calculation which it is required to follow when setting fines under that provision.

90.

Consequently the Court found that, contrary to the appellant’s argument, the Commission was not required to express in figures, in absolute terms or as a percentage, the basic amount of the fine and any aggravating or extenuating circumstances and, at paragraph 284 of the judgment under appeal, the Court held that the contested decision was reasoned in accordance with the requirements of Article 296 TFEU.

91.

At paragraphs 285 to 296 of the judgment under appeal, the General Court went on to consider the appellant’s arguments concerning the proportionality of the fine.

92.

At paragraphs 286 and 287 of that judgment, the Court drew attention to the case‑law relating to the scope of the principle of proportionality in determining the amount of the fine.

93.

First, the Court dismissed the appellant’s argument concerning the aggravating circumstances which the Commission was said to have found in relation to the appellant. It took the view that the Commission had found no aggravating circumstances in the appellant’s case as the Commission had, rightly, set out the reasons why the infringement in question was particularly serious. The first reason related to the purpose of affixing seals and the second was the need to ensure that the fine had a sufficiently deterrent effect.

94.

Secondly, the Court dismissed the appellant’s argument concerning the extenuating circumstances which the Commission ought to have taken into account when calculating the fine.

95.

In particular, at paragraph 289 of the judgment under appeal, the Court found that the breaking of a seal through negligence did not constitute an extenuating circumstance for two reasons. First, the Commission conceded that ‘at the very least’ there was breaking of a seal through negligence and, secondly, under Article 23(1)(e) of Regulation No 1/2003, the infringement constituted by the breaking of a seal may be intentional or negligent.

96.

Next, at paragraph 291 of the judgment under appeal, the General Court found that the fact that it had not been possible to establish that documents had been removed from the sealed room was irrelevant, since the objective of sealing was specifically to prevent any handling of the documents placed in the sealed room in the absence of the Commission’s inspection teams. On that point, the Court observed that the documents stored in the room had not been catalogued, mainly because of their quantity, and the inspection team was therefore unable to ascertain whether any documents stored in the room were missing.

97.

Thirdly, the General Court noted that the Commission had taken account of the fact that this was the first case in which Article 23(1)(e) of Regulation No 1/2003 had been applied, while pointing out that the appellant had at its disposal legal expertise, that the appellant had been informed of the consequences of the breaking of a seal, that the amendment of Regulation No 1/2003 dated from more than three years previously, and that other seals had already been affixed in the buildings of other companies of the appellant’s group.

98.

Finally, at paragraph 294 of the judgment under appeal, the General Court observed as follows:

‘Fourthly, contrary to what the [appellant] maintains, a fine of EUR 38 million cannot be regarded as disproportionate to the infringement, having regard to the particularly serious nature of the breaking of a seal, the size of the [appellant] and the need to ensure that the fine has a sufficiently deterrent effect, in order that it cannot be advantageous for an undertaking to break a seal affixed by the Commission in the course of inspections.’

99.

By its sixth ground of appeal, the appellant considers that the General Court erred in law and, in particular, breached the principle of proportionality by failing to take account, in assessing the seriousness of the infringement and the amount of the fine, of the fact that the Commission had adduced no evidence to show that the door of the room had actually been opened or that documents had been removed. According to the appellant, these are decisive matters in so far as the objective of sealing is, as stated at paragraph 291 of the judgment under appeal, to prevent any handling of the documents placed in the sealed room. The appellant adds that the General Court, in exercising its unlimited jurisdiction, ought to have reduced the fine accordingly.

100.

Furthermore, the General Court failed to take into account as an extenuating circumstance the fact that the Commission used a seal which had exceeded its shelf life. Consequently the Commission was jointly responsible for the relatively uncertain situation in which the parties found themselves and it misled the appellant with regard to the security measures that were to be taken. On that point, the appellant refers, by way of analogy, to Suiker Unie and Others v Commission, ( 22 ) where the Court of Justice held, in essence, that an infringement cannot be taken into consideration for the purpose of setting the amount of a fine because the possibility that the wording of a Commission communication could induce the belief that such a practice was accepted as compatible with European Union law cannot be ruled out. ( 23 )

101.

Finally, the appellant submits that the General Court misconstrued the rules on the taking of evidence by refusing to order an inquiry concerning the opening of the door of room G.505.

102.

The Commission disputes those submissions and proposes that the Court dismiss the sixth ground of appeal.

103.

According to the case‑law of the European Court of Human Rights, compliance with Article 6 of the ECHR does not preclude the Commission from having the function of carrying out the investigation, conducting the proceedings and adopting the decision on infringements of competition law, provided that the decision which is delivered is open to subsequent review by a judicial body that has unlimited jurisdiction. ( 24 )

104.

According to the European Court of Human Rights, that function must include ‘the power to quash in all respects, on questions of fact and law, the decision of the body below’. ( 25 ) In other words, the judicial body must be able to examine all questions of fact and law relating to the dispute before it and must not be confined to examining a manifest error of assessment.

105.

Consequently, first, the judicial body must be able to ascertain whether, in relation to the particular circumstances of the case, the administrative authority made appropriate use of its powers.

106.

Secondly, the judicial body must be able to examine the merits and the proportionality of the choices of that authority and to verify its assessments of a technical nature.

107.

Thirdly, the review of a penalty, according to the European Court of Human Rights, means that the judicial body ascertains and determines in a detailed way whether the penalty is appropriate for the infringement committed, taking account of the relevant factors, including the proportionality of the penalty itself, and, as the case may be, replaces it. ( 26 )

108.

The rigour of the judicial review carried out by the General Court is therefore an essential condition for the actual procedure, characterised, on the one hand, by the penal nature of the procedure and the fines referred to in Article 23 of Regulation No 1/2003 ( 27 ) and, on the other hand, by a concentration of powers in the hands of the Commission, to be compatible with the requirements of Article 6 of the ECHR and Article 47 of the Charter.

109.

In accordance with Article 261 TFEU and Article 31 of Regulation No 1/2003, ( 28 ) the General Court has unlimited jurisdiction with regard to the fines imposed by the Commission.

110.

That jurisdiction, as described by the Court of Justice in Groupe Danone v Commission, ( 29 ) enables the Court, in addition to carrying out a mere review of the lawfulness of the penalty, to substitute its own appraisal for the Commission’s. Therefore, the General Court may vary the contested measure, even without annulling it, by taking into account all the factual circumstances, by amending, in particular, the fine imposed where the question of the amount of the fine is before it. It may cancel, reduce or increase the fine ( 30 ) in the awareness that it is not bound by the Commission’s calculations or by the methods laid down in ‘soft law’ measures such as the Guidelines. ( 31 ) The General Court must therefore carry out its own appraisal and may therefore use a different calculation method even if it is less favourable for the undertaking concerned. In the abovementioned judgment, accordingly, the Court of Justice found that the General Court had fully exercised its jurisdiction by modifying the rules for applying the factor laid down by the Guidelines in a context where the question of the legality of applying such a factor had not been raised at first instance.

111.

In that context, therefore, the General Court must ensure respect for the principle of proportionality which, let me repeat, is a general principle of European Union law, now enshrined in Article 49(3) of the Charter.

112.

In conformity with the General Court’s observations at paragraphs 286 and 287 of the judgment under appeal, the principle of proportionality requires measures adopted by the institutions not to exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation in question.

113.

With regard to the procedures for applying the rules of competition, that means that a fine must not be disproportionate to the Commission’s objectives and that it must be proportionate to the infringement, which must be appraised ‘as a whole’, particular account being taken of its seriousness. However, as the Court of Justice recently observed in Tomra Systems and Others v Commission, the seriousness of infringements has to be determined by reference to numerous factors, such as the particular circumstances of the case, its context and the dissuasive effect of fines, and no binding or exhaustive list of the criteria which must be applied has been drawn up. ( 32 )

114.

An examination of the proportionality of a fine must therefore take into account all the elements of the case, such as the conduct of the undertaking and the part it played in setting up the anti-competitive practice, its size, the value of the products concerned or the profit derived from the infringement, the deterrent effect which is desired and the risks which infringements of that kind represent to the objectives of the European Union.

115.

Consequently such examination means that the General Court should, particularly in a case where it has unlimited jurisdiction, assess the amount of the fine beyond merely the points of law or of fact disputed by the undertaking concerned.

116.

If those principles are applied to the General Court’s assessment of the proportionality of the fine imposed on the appellant, I am inclined to think that the Court did not fully exercise its unlimited jurisdiction.

117.

Indeed, I consider that the Court should not have merely asserted, at paragraph 294 of the judgment under appeal, that ‘contrary to what the [appellant] maintains, a fine of EUR 38 million cannot be regarded as disproportionate to the infringement, in the light of the particularly serious nature of a breach of seal, the size of the [appellant] and the need to ensure that the fine has a sufficiently deterrent effect’.

118.

Although paragraph 294 must obviously be read in the light of paragraphs 288 to 293, the fact remains that the Court did not, in my opinion, act like an appeal court examining and taking possession of the case as from the beginning, as required by Article 6 of the ECHR.

119.

First, I think that the General Court’s appraisal was not sufficiently independent of that of the Commission

120.

In the present case, the question was whether the fine of EUR 38 million imposed by the Commission was a just penalty for the appellant’s alleged conduct. Did a fine of that amount make it possible to penalise the appellant’s unlawful conduct effectively, in a manner which is not negligible and which remains sufficiently deterrent? On that point, I have a feeling that the General Court did not form its own opinion, relying on the amount fixed in a rather general way by the Commission.

121.

On the one hand, in its assessment at paragraphs 288 to 294 of the judgment under appeal, the General Court considered only the points of law disputed by the parties, that is to say, the seriousness of the infringement and whether certain extenuating and aggravating circumstances should be taken into account in calculating the fine.

122.

On the other hand, on four of the six points constituting its assessment, the General Court referred expressly to the Commission’s assessment in the contested decision. While it is true that the Commission rightly set out the reasons why breaking a seal was a particularly serious infringement, and it is also true that the Commission was entitled, in accordance with settled case‑law, to ensure that the fine had a sufficiently deterrent effect and, for that purpose, had a discretion to set the amount of the fine, that does not mean that the European Union Court, in carrying out its review, had to rely on the way in which the Commission exercised that discretion or even on the method that the Commission may have used.

123.

Secondly, it seems to me difficult to assess the proportionality of the fine imposed on the appellant without mentioning and considering the appellant’s size and global resources.

124.

At paragraph 294 of the judgment under appeal, the General Court stated that ‘a fine of EUR 38 million cannot be regarded as disproportionate to the infringement, in the light of … the size of the [appellant]’. However, neither the contested decision nor the judgment under appeal mentions the appellant’s turnover or share capital. Only paragraph 3 of the judgment under appeal states that the appellant is a wholly-owned subsidiary of E.ON and paragraph 282 states that the appellant was one of the largest European undertakings in the energy sector.

125.

Without those figures, it is no doubt possible to extrapolate the appellant’s turnover in 2005 on the basis of the information at paragraph 113 of the contested decision. The Commission states that the fine of EUR 38 million represents 0.14% of the appellant’s turnover. On that basis, the turnover would be around EUR 27 142 000 000. ( 33 ) However, the appellant’s annual report for 2005 ( 34 ) shows a turnover of EUR 23 246 000 000, that is to say, some EUR 4 000 000 000 less. At the hearing, the appellant confirmed that its turnover in 2005 was EUR 25 000 000 000, that is to say, EUR 2 000 000 000 less.

126.

In my opinion, there should be no such doubts as to the appellant’s turnover, particularly at this stage of the proceedings and in relation to the calculation of a fine expressly based on the appellant’s turnover. The General Court ought to have clarified this point without relying on the single relatively general percentage referred to by the Commission at paragraph 113 of the contested decision. It is essential to know and to consider the appellant’s financial figures in order to assess the fine justly.

127.

On the one hand, the figures make it possible to appraise the amount of the penalty actually incurred by the appellant for the offence of breaking the seal at issue, which is one factor to be taken into account with regard to the proportionality of the fine. It is relevant to point out that the Commission was entitled, under Article 23(1)(e) of Regulation No 1/2003, to fine the appellant the equivalent of 1% of its total turnover in the previous financial year, which could have resulted in a fine of more than EUR 253 million on the basis of the figures on which the Commission relied in the contested decision. ( 35 ) The proportionate nature of the fine could therefore be confirmed by the fact that it was set at a level clearly below the maximum fixed by Regulation No 1/2003.

128.

On the other hand, the figures make it possible to assess the fine that the appellant could have incurred if it had been found to have engaged in the anti-competitive practices which the Commission was investigating. Under point (a) of the first subparagraph of Article 23(2) and the second subparagraph of Regulation No 1/2003, the fine could have reached 10% of the appellant’s total turnover, that is to say, EUR 2 700 000 000 on the basis of the Commission’s figures. In my opinion, that circumstance illustrates the considerable benefit that the appellant could gain from breaking the seal affixed by the Commission and seizing the stored documents.

129.

Finally, it is by taking into consideration the appellant’s size and global resources that it is possible to ensure that the fine has a sufficient deterrent effect through the impact on the appellant, and to ensure that the penalty is not negligible in the light, particularly, of its financial capacity. ( 36 )

130.

Thirdly, the assessment of the proportionality of the fine should, in my view, have taken into account the fact that the infringement was due to negligence. It is true that, at paragraph 289 of the judgment under appeal, the General Court rejected the argument that this was an extenuating circumstance and it was therefore not necessary for the Court to take it into account in its assessment at paragraph 294. However, I am not in agreement with that assessment because the reasons given do not justify the Court’s conclusion. The Commission’s admission that the breakage occurred ‘at least negligently’ and the fact that, according to Article 23(1)(e) of Regulation No 1/2003, an infringement consisting in the breaking of a seal may be committed intentionally or negligently are arguments relating to the constitution of the infringement which do not fall, in my view, within the reference framework for determining the amount of the fine. As negligence is a mitigating circumstance according to the Guidelines for setting fines imposed for infringement of Article 101 TFEU, ( 37 ) it may legitimately be asked whether it is not, in reality, relevant for the purpose of calculating a fine imposed for breaking a seal.

131.

Consequently, for all those reasons, I consider that the General Court did not exercise its unlimited jurisdiction when considering the proportionality of the fine imposed on the appellant by the Commission.

132.

For that reason, I propose that the Court declare the sixth ground of appeal to be well founded and set aside the judgment under appeal.

133.

The first paragraph of Article 61 of the Statute of the Court of Justice provides that, if the appeal is well founded, the Court of Justice is to quash the decision of the General Court. In that case, it may itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the General Court for judgment

134.

In the present case, I consider that the proceedings are not at the stage where final judgment can be given by the Court because assessment of the proportionality of the appellant’s fine will necessitate certain factual inquiries, particularly concerning the appellant’s turnover, and account will have to be taken of a number of factual matters relating to the particular circumstances of the case which are not available to the Court.

135.

Consequently I propose that the case be referred back to the General Court for judgment concerning the proportionality of the fine imposed on the appellant and that the costs be reserved.

136.

In the light of the foregoing considerations, I propose that the Court should: