Opinion of the Advocate General — ECLI:EU:C:2012:375
Date: 2012-06-21
Language of the case: German
Subject matter: Competition
Procedure: Action for annulment;Appeal - unfounded
Origin: Germany

summary of the decision was published (OJ 2008 C 240, p. 6; ‘the contested decision’). 5 – Council regulation of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1). 6 – The Commission adopted a further decision on 24 May 2011 concerning Suez Environnement Company SA (Case COMP/39.796 – Suez Environnement – breach of seal) (C(2011) 3640 final). 7 – For a full account of the background of the case, I refer to paragraphs 3 to 31 of the judgment under appeal. 8 – This convention was signed in Rome on 4 September 1950 (‘ECHR’). 9 – Emphasis added. 10 – Case C‑235/92 P [1999] ECR I‑4539, paragraph 17 et seq. 11 – Judgment of 19 April 2012 in Case C‑549/10 P Tomra Systems and Others v Commission, paragraphs 25 and 26 and the case‑law cited. 12 – Case T‑44/00 [2004] ECR II‑2223, paragraphs 261 and 262. 13 – Joined Cases T‑67/00, T‑68/00, T‑71/00 and T‑78/00 [2004] ECR II‑2501, paragraphs 342 and 343. 14 – ‘The Charter’. 15 – See, in particular, Case C‑167/04 P JCB Service v Commission [2006] ECR I‑8935, paragraph 18 and the case‑law cited, and Case C‑229/05 P PKK and KNK v Council [2007] ECR I‑439, paragraph 37 and the case‑law cited. 16 – JCB Service v Commission, paragraph 107 and the case‑law cited, and Case C‑328/05 P SGL Carbon v Commission [2007] ECR I‑3921, paragraph 41 and the case‑law cited. 17 – See, in particular, JCB Service v Commission, paragraph 106 and the case‑law cited, and SGL Carbon v Commission, paragraph 41 and the case‑law cited. 18 – See the order of 12 December 2006 in Case C‑129/06 P Autosalone Ispra v Commission, paragraph 17 and the case‑law cited. 19 – See, in particular, Joined Cases C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P Aalborg Portlandand Others v Commission [2004] ECR I‑123, paragraph 51 and the case‑law cited. 20 – PKK and KNK v Council, paragraph 32 and the case‑law cited. 21 – See, in particular, the order in Autosalone Ispra v Commission, paragraph 22 and the case‑law cited. 22 – Joined Cases 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73 [1975] ECR 1663, paragraph 539. 23 – Paragraph 556. 24 – See the judgments of the European Court of Human Rights in Schmautzer v. Austria, 23 October 1995, § 36, Series A no. 328-A; Valico S.r.l. v.Italy (dec.), no. 70074/01, p. 20 and the case‑law cited, ECHR 2006-III; and A. Menarini Diagnostics S.R.L.v.Italy, no. 43509/08, §§ 58 and 59 and the case‑law cited, 27 September 2011. 25 – See judgments of the European Court of Human Rights in Schmautzer, cited above, § 36; ValicoS.r.l., cited above, p. 21; and A. Menarini Diagnostics S.R.L., cited above, § 59. 26 – See judgment of the Court of Human Rights in A. Menarini Diagnostics S.R.L., cited above, §§ 64 to 66. 27 – See my Opinion in Joined Cases C‑201/09 P and C‑216/09 P ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg and Others [2011] ECR I‑2239, paragraphs 41 to 45. Regarding the case‑law of the European Court of Human Rights, see, most recently, A. Menarini Diagnostics S.R.L., cited above, where the European Court of Human Rights found, having regard to the criteria set out in its judgment in Engel and Othersv.the Netherlands, 8 June 1976, §§ 82 and 83, Series A no. 22 that a fine of EUR 6 million imposed on an undertaking for anti-competitive practices was of a penal nature, so that Article 6(1) of the ECHR was applicable in the criminal respect (§ 44). 28 – See also Article 3(1)(c) of Council Decision 88/591/ECSC, EEC, Euratom of 24 October 1988 establishing a Court of First Instance of the European Communities (OJ 1988 L 319, p. 1), as amended by Council Decision 93/350/ECSC, EEC, Euratom of 8 June 1993 (OJ 1993 L 144, p. 21). 29 – Case C‑3/06 P [2007] ECR I‑1331. 30 – Ibid., paragraphs 61 and 62 and the case‑law cited. 31 – Case T‑11/06 Romana Tabacchi v Commission [2011] ECR II‑6681, paragraph 266 and the case‑law cited. 32 – Paragraph 107 and the case‑law cited. 33 – The share capital of the parent company, E.ON, was EUR 126 562 000 000 and its turnover was EUR 56 399 000 000 (see the 2005 annual report, available on the E.ON website at http://www.eon.com). 34 – That report is also available on the E.ON website. 35 – This figure was confirmed by the appellant in the course of the hearing. 36 – Case C‑413/08 P Lafarge v Commission [2010] ECR I‑5361, paragraph 104. 37 – See point 29 of the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2).