Case C‑89/11 P

E.ON Energie AG

v

European Commission

‛Appeal — Action for annulment of a Commission decision relating to a fine for breach of seal — Burden of proof — Distortion of the evidence — Obligation to state reasons — Amount of the fine — Unlimited jurisdiction — Principle of proportionality’

Summary — Judgment of the Court (Third Chamber), 22 November 2012

1. Judicial proceedings — Oral procedure — Reopening — No obligation to reopen the oral procedure in order to permit the parties to submit observations on points of law raised in the Advocate General’s Opinion and not debated during the oral procedure

   (Art. 252, second para., TFEU; Rules of Procedure of the Court of Justice, Art. 61)

2. Appeals — Grounds of appeal — Mistaken assessment of the facts — Inadmissibility — Review by the Court of Justice of the assessment of the evidence — Possible only where the clear sense of the evidence has been distorted — Legal classification of the facts — Admissibility

   (Art. 256(1) TFEU; Statute of the Court of Justice, Art. 58, first para.)

3. EU law — Principles — Fundamental rights — Presumption of innocence — Procedures in competition matters — Applicability

   (Charter of Fundamental Rights of the European Union, Art. 48, para. 1)

4. Competition — Administrative procedure — Commission decision finding an infringement consisting in the conclusion of an anti-competitive agreement — Decision based on sufficient evidence to demonstrate the existence of the infringement — Evidential obligations of the undertakings denying the infringement

   (Arts 81 EC and 82 EC)

5. Appeals — Grounds of appeal — Inconsistency in the reasoning of the General Court in its application of EU law on the burden of proof — Admissibility

   (Art. 256(1) TFEU; Statute of the Court of Justice, Art. 58, first para.)

6. Appeals — Grounds of appeal — Mere repetition of the pleas and arguments put forward before the General Court — Error of law relied on not identified — Inadmissibility — Challenge to the interpretation or application of EU law by the General Court — Admissibility

   (Art. 256(1) TFEU; Statute of the Court of Justice, Art. 58, first para.; Rules of Procedure of the Court of Justice, Art. 112(1)(c))

7. Judicial proceedings — Measures of inquiry — Discretion of the General Court

   (Rules of Procedure of the General Court, Arts 65 and 66)

8. Appeals — Jurisdiction of the Court of Justice — Whether it may review, on grounds of fairness, the assessment by the General Court in regard to the amount of the fines imposed on undertakings which have infringed the competition rules of the Treaty — Excluded — Assessment called into question for reasons based on infringement of the principle of proportionality — Whether permissible

   (Art. 261 TFEU; Council Regulation No 1/2003, Art. 31)

9. Competition — Fines — Conditions for imposing Commission fines — Infringement committed intentionally or negligently — Breach of seal — Serious infringement by its own nature

   (Council Regulation No 1/2003, Arts 20(2)(d) and 23(1)(e))

10. Competition — Fines — Conditions for imposing Commission fines — Infringement committed intentionally or negligently — Breach of seal — Need to ensure that the fine has a deterrent effect

    (Council Regulation No 1/2003, Art. 23(1)(e) and (2))

1.  See the text of the decision.

   (see paras 61, 62)

2.  See the text of the decision.

   (see paras 64, 65, 96, 100, 101, 106, 115)

3.  See the text of the decision.

   (see paras 72, 73)

4.  If the Commission finds that there has been an infringement of the competition rules on the basis that the established facts cannot be explained other than by the existence of anti-competitive behaviour, the Courts of the European Union will find it necessary to annul the decision in question where those undertakings put forward arguments which cast the facts established by the Commission in a different light and thus allow another plausible explanation of the facts to be substituted for the one adopted by the Commission in concluding that an infringement occurred. In such a case, it cannot be considered that the Commission has adduced proof of an infringement of competition law

   However, where the Commission has been able to establish that an undertaking had taken part in meetings between undertakings of a manifestly anti‑competitive nature, it is for that undertaking to provide another explanation of the tenor of those meetings. This does not entail either the burden of proof being unduly reversed or the presumption of innocence being set aside.

   Likewise, when the Commission relies on evidence which is in principle sufficient to demonstrate the existence of the infringement, it is not sufficient for the undertaking concerned to raise the possibility that a circumstance arose which might affect the probative value of that evidence in order for the Commission to bear the burden of proving that that circumstance was not capable of affecting the probative value of the evidence. On the contrary, except in cases where such proof could not be provided by the undertaking concerned on account of the conduct of the Commission itself, 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 in question the probative value of the evidence relied on by the Commission.

   (see paras 74-76)

5.  In an appeal, where the appellant complains of an alleged contradiction between a legal rule laid down in the General Court’s judgment and the implementation of that rule in that judgment, thereby casting doubt on the reasoning followed by the General Court in its application of EU law on the burden of proof, the appellant is raising a legal issue concerning the application of EU law by the General Court. Such a plea is therefore admissible.

   (see para. 84)

6.  See the text of the decision.

   (see paras 112, 113)

7.  See the text of the decision.

   (see paras 115, 135)

8.  In accordance with Article 261 TFEU and Article 31 of Regulation No 1/2003, the General Court has unlimited jurisdiction with regard to the fines imposed by the Commission. The General Court is therefore empowered, in addition to carrying out a mere review of the lawfulness of the penalty, to substitute its own appraisal for the Commission’s and, consequently, to cancel, reduce or increase the fine or penalty payment imposed.

   However, it is not for the Court of Justice, when ruling on matters of law in the context of an appeal, to substitute, on grounds of fairness, its own assessment for that of the General Court exercising its unlimited jurisdiction to rule on the amount of fines imposed on undertakings for their infringement of EU law. Accordingly, only inasmuch as the Court of Justice considers that the level of the penalty is not merely inappropriate, but also excessive to the point of being disproportionate, would it have to find that the General Court erred in law, due to the inappropriateness of the amount of a fine.

   (see paras 123-126)

9.  In proceedings for infringement of the European Union competition rules, it does not matter, for the purposes of establishing the breach of seal, that someone entered the sealed room or not. Indeed, the objective of Articles 20(2)(d) and 23(1)(e) of Regulation No 1/2003 is to protect the inspections from the threat that comes from the simple fact that the seal has been broken, thereby giving rise to a doubt as regards the integrity of the evidence in the sealed room. An infringement consisting of a breach of seal is particularly serious by its own nature and the alleged non-opening of the door of room concerned do not change that assessment.

   (see paras 128, 129)

10.  In accordance with Article 23(2) of Regulation No 1/2003, in the case of an infringement of the substantive rules laid down in Articles 81 EC and 82 EC, the Commission can impose a fine of up to 10% of the total turnover of the undertaking concerned in the preceding business year. Therefore, an undertaking which hinders the Commission’s inspections, by breaking seals affixed by the Commission to preserve the integrity of documents during the period of time necessary for the inspection, could, by removing the evidence gathered by the Commission, escape such a penalty and must therefore be dissuaded, by the amount of the fine set in accordance with Article 23(1) of Regulation No 1/2003, from engaging in such behaviour. Once a breach of seal is observed, it cannot be excluded that such behaviour occurred.

    (see para. 132)

Case C‑89/11 P

E.ON Energie AG

v

European Commission

‛Appeal — Action for annulment of a Commission decision relating to a fine for breach of seal — Burden of proof — Distortion of the evidence — Obligation to state reasons — Amount of the fine — Unlimited jurisdiction — Principle of proportionality’

Summary — Judgment of the Court (Third Chamber), 22 November 2012

1. Judicial proceedings — Oral procedure — Reopening — No obligation to reopen the oral procedure in order to permit the parties to submit observations on points of law raised in the Advocate General’s Opinion and not debated during the oral procedure

   (Art. 252, second para., TFEU; Rules of Procedure of the Court of Justice, Art. 61)

2. Appeals — Grounds of appeal — Mistaken assessment of the facts — Inadmissibility — Review by the Court of Justice of the assessment of the evidence — Possible only where the clear sense of the evidence has been distorted — Legal classification of the facts — Admissibility

   (Art. 256(1) TFEU; Statute of the Court of Justice, Art. 58, first para.)

3. EU law — Principles — Fundamental rights — Presumption of innocence — Procedures in competition matters — Applicability

   (Charter of Fundamental Rights of the European Union, Art. 48, para. 1)

4. Competition — Administrative procedure — Commission decision finding an infringement consisting in the conclusion of an anti-competitive agreement — Decision based on sufficient evidence to demonstrate the existence of the infringement — Evidential obligations of the undertakings denying the infringement

   (Arts 81 EC and 82 EC)

5. Appeals — Grounds of appeal — Inconsistency in the reasoning of the General Court in its application of EU law on the burden of proof — Admissibility

   (Art. 256(1) TFEU; Statute of the Court of Justice, Art. 58, first para.)

6. Appeals — Grounds of appeal — Mere repetition of the pleas and arguments put forward before the General Court — Error of law relied on not identified — Inadmissibility — Challenge to the interpretation or application of EU law by the General Court — Admissibility

   (Art. 256(1) TFEU; Statute of the Court of Justice, Art. 58, first para.; Rules of Procedure of the Court of Justice, Art. 112(1)(c))

7. Judicial proceedings — Measures of inquiry — Discretion of the General Court

   (Rules of Procedure of the General Court, Arts 65 and 66)

8. Appeals — Jurisdiction of the Court of Justice — Whether it may review, on grounds of fairness, the assessment by the General Court in regard to the amount of the fines imposed on undertakings which have infringed the competition rules of the Treaty — Excluded — Assessment called into question for reasons based on infringement of the principle of proportionality — Whether permissible

   (Art. 261 TFEU; Council Regulation No 1/2003, Art. 31)

9. Competition — Fines — Conditions for imposing Commission fines — Infringement committed intentionally or negligently — Breach of seal — Serious infringement by its own nature

   (Council Regulation No 1/2003, Arts 20(2)(d) and 23(1)(e))

10. Competition — Fines — Conditions for imposing Commission fines — Infringement committed intentionally or negligently — Breach of seal — Need to ensure that the fine has a deterrent effect

    (Council Regulation No 1/2003, Art. 23(1)(e) and (2))

1.  See the text of the decision.

   (see paras 61, 62)

2.  See the text of the decision.

   (see paras 64, 65, 96, 100, 101, 106, 115)

3.  See the text of the decision.

   (see paras 72, 73)

4.  If the Commission finds that there has been an infringement of the competition rules on the basis that the established facts cannot be explained other than by the existence of anti-competitive behaviour, the Courts of the European Union will find it necessary to annul the decision in question where those undertakings put forward arguments which cast the facts established by the Commission in a different light and thus allow another plausible explanation of the facts to be substituted for the one adopted by the Commission in concluding that an infringement occurred. In such a case, it cannot be considered that the Commission has adduced proof of an infringement of competition law

   However, where the Commission has been able to establish that an undertaking had taken part in meetings between undertakings of a manifestly anti‑competitive nature, it is for that undertaking to provide another explanation of the tenor of those meetings. This does not entail either the burden of proof being unduly reversed or the presumption of innocence being set aside.

   Likewise, when the Commission relies on evidence which is in principle sufficient to demonstrate the existence of the infringement, it is not sufficient for the undertaking concerned to raise the possibility that a circumstance arose which might affect the probative value of that evidence in order for the Commission to bear the burden of proving that that circumstance was not capable of affecting the probative value of the evidence. On the contrary, except in cases where such proof could not be provided by the undertaking concerned on account of the conduct of the Commission itself, 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 in question the probative value of the evidence relied on by the Commission.

   (see paras 74-76)

5.  In an appeal, where the appellant complains of an alleged contradiction between a legal rule laid down in the General Court’s judgment and the implementation of that rule in that judgment, thereby casting doubt on the reasoning followed by the General Court in its application of EU law on the burden of proof, the appellant is raising a legal issue concerning the application of EU law by the General Court. Such a plea is therefore admissible.

   (see para. 84)

6.  See the text of the decision.

   (see paras 112, 113)

7.  See the text of the decision.

   (see paras 115, 135)

8.  In accordance with Article 261 TFEU and Article 31 of Regulation No 1/2003, the General Court has unlimited jurisdiction with regard to the fines imposed by the Commission. The General Court is therefore empowered, in addition to carrying out a mere review of the lawfulness of the penalty, to substitute its own appraisal for the Commission’s and, consequently, to cancel, reduce or increase the fine or penalty payment imposed.

   However, it is not for the Court of Justice, when ruling on matters of law in the context of an appeal, to substitute, on grounds of fairness, its own assessment for that of the General Court exercising its unlimited jurisdiction to rule on the amount of fines imposed on undertakings for their infringement of EU law. Accordingly, only inasmuch as the Court of Justice considers that the level of the penalty is not merely inappropriate, but also excessive to the point of being disproportionate, would it have to find that the General Court erred in law, due to the inappropriateness of the amount of a fine.

   (see paras 123-126)

9.  In proceedings for infringement of the European Union competition rules, it does not matter, for the purposes of establishing the breach of seal, that someone entered the sealed room or not. Indeed, the objective of Articles 20(2)(d) and 23(1)(e) of Regulation No 1/2003 is to protect the inspections from the threat that comes from the simple fact that the seal has been broken, thereby giving rise to a doubt as regards the integrity of the evidence in the sealed room. An infringement consisting of a breach of seal is particularly serious by its own nature and the alleged non-opening of the door of room concerned do not change that assessment.

   (see paras 128, 129)

10.  In accordance with Article 23(2) of Regulation No 1/2003, in the case of an infringement of the substantive rules laid down in Articles 81 EC and 82 EC, the Commission can impose a fine of up to 10% of the total turnover of the undertaking concerned in the preceding business year. Therefore, an undertaking which hinders the Commission’s inspections, by breaking seals affixed by the Commission to preserve the integrity of documents during the period of time necessary for the inspection, could, by removing the evidence gathered by the Commission, escape such a penalty and must therefore be dissuaded, by the amount of the fine set in accordance with Article 23(1) of Regulation No 1/2003, from engaging in such behaviour. Once a breach of seal is observed, it cannot be excluded that such behaviour occurred.

    (see para. 132)