Brussels, 23/11/2012 (Agence Europe) - On Thursday 22 November, the European Court of Justice dismissed and appeal by Germany's E.ON Energie against the 2010 judgment of the European General Court (see EUROPE 10278) upholding the European Commission's decision to levy a fine in January 2008 of €38 million (see EUROPE 9591) on E.ON for breaking a seal on its premises during a competition investigation in 2006.
In the ruling, the Court of Justice rejects all of E.ON's arguments: - the General Court did not unduly reverse the burden of proof or infringe the principle of the presumption of innocence. Since the Commission had determined that there had been a breach of seal based on a body of evidence, the General Court was entitled to conclude that it was for E.ON Energie to adduce evidence challenging that finding; - E.ON cannot challenge the probative value of a seal by simply invoking the possibility that it might have been defective. If such an argument, unsupported by evidence, could succeed, the Commission would be completely deprived of the possibility of using seals. Moreover, the Court of Justice recalls that, in principle, it is for the General Court to appraise the value of the evidence produced to it; the review by the Court of Justice on appeal is limited to points of law. Furthermore, the General Court is the sole judge of any need to supplement the information available to it, meaning that E.ON Energie cannot criticise the General Court for not having granted its request that further measures of inquiry be ordered; - The Court of Justice dismisses E.ON Energie's argument that the General Court breached the principle of proportionality by not reducing the fine imposed by the Commission. The Court of Justice observes that only in so far as it considers that the level of the penalty is not merely inappropriate, but 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. In this connection, the Court of Justice holds that the General Court did not err in law by holding that an infringement consisting of a breach of seal is particularly serious in itself. Moreover, knowing that the Commission could have imposed on E.ON Energie a fine of 10% of its annual turnover if the Commission had established the existence of anticompetitive practices, the fine of €38 million imposed for a breach of seal, which represented 0.14% of E.ON Energie's annual turnover, could not be considered excessive in the light of the need to ensure the deterrent effect of that penalty. (FG/transl.fl)