Case C-328/04: Reference for a preliminary ruling by the Fővárosi Bíróság (Hungary) by order of that court of 24 June 2004 in the criminal proceedings against Attila Vajnai
Date: 2004-10-23
Institutions: Court of Justice
Subjects: criminal law, flag, freedom of expression, interpretation of the law, political discrimination, political ideology, vision of Europe

23.10.2004

EN

Official Journal of the European Union

C 262/15

3. In its third ground of appeal the appellant contends that the
specific 25 % increase in the basic amount of the fine in the
light of warning calls made prior to the commencement of
the Commission's inspection was unlawful. Those calls, the
appellant submits, did not form part of the facts constituting
the charge in issue and, contrary to the view taken by the
Court of First Instance, could not have been taken into
account as aggravating grounds in the calculation of the fine
under Article 15(2) of Regulation No 17 without thereby
infringing the principle of nulla poena sine lege. The Sarrió
case-law which the Court of First Instance cites in support
of the opposite contention is, the appellant argues, irrele-
vant inasmuch as in the facts underlying that case aggra-
vating circumstances in the commission of acts were taken
into account for purposes of increasing the fine, whereas
later acts which, in retrospect, could or should have made
detection of those acts more difficult were not. Furthermore,
the Court of First Instance in the present case made assump-
tions in respect of internal matters to the detriment of the
appellant, a course of action at variance with the rules of
evidence.

4. In regard to the calculation of the fine, the appellant also
takes issue with the fact that the upper limit for a fine of
10 % of an undertaking's turnover, as laid down in Article
15(2) of Regulation No 17, was exceeded. Had the Commis-
sion taken as its basis the conclusive turnover figures for
2000 or 1999, it would have been obliged to cap the arith-
metical amount of the fine at 10 % of the undertaking's
turnover before applying the rule under
the leniency
programme. The Court of First Instance erroneously left the
entire question open on the legally incorrect assumption
that it had no bearing on the dismissal of the relevant
complaint.

5. The appellant further takes issue with the insufficient atten-
tion paid to the significance of documents withheld in the
context of the inadequate document access. The appellant
expands on its submission at first instance by contending
that new and incriminating documents, of which the appel-
lant was unaware and on which it had not previously had
an opportunity to set out its views, were even used for the
first time in the decision by the Court of First Instance.

6. The appellant further challenges the categorical decision not
to take account of what all parties accept was its reduced
financial capacity when the fine was being calculated and
claims that such a failure constitutes an infringement of the
principle of proportionality and breaches its freedom to
dispose of its property. Penalties imposed under competition
law may not jeopardise the existence of those on whom the
penalties are imposed; the operational undertaking must be
the standard by which the appropriateness and propriety of
sanctions in individual cases fall
is in
general impermissible to concentrate on those parts of an
undertaking which may still be salvageable after insolvency
brought about by the imposition of a fine. Every fine must
be calculated in such a way that no economic ‘death
sentences’ are passed.

to be judged.

It

7. The appellant concludes by challenging the fact that no
adjudication was made on its multi-limbed head of

interest and
complaint concerning the fixing of default
interest
in respect of pending proceedings, which was
dismissed only in the result and not formally. The Court of
First Instance erred in law in failing to take into account the
fact that there is no legal basis whatever for determining
interest and none for the level of interest established which
was here used as a basis. Even if one were to recognise that
the setting of interest is in principle permissible in order to
the setting of
prevent
interest is at best required to be at a significantly lower level
in order to attain that objective. That must in particular be
the case in view of the drastically increased level of the fine,
which leads to an equally drastic increase in the absolute
level of
imposed. The substantive heads of
complaint raised were not addressed in the judgment under
appeal; instead, there was a ruling on a head of complaint
that the appellant had not raised.

the bringing of abusive actions,

the interest

(1) Not yet published in the European Court Reports.

Reference for a preliminary ruling by the Fővárosi Bíróság
(Hungary) by order of that court of 24 June 2004 in the
criminal proceedings against Attila Vajnai

(Case C-328/04)

(2004/C 262/27)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Fővárosi Bíróság, Hungary,
of 24 June 2004, received at the Court Registry on 30 July
2004, for a preliminary ruling in the criminal proceedings
against Attila Vajnai on the following question:

Is Article 269/B, first paragraph, of the Büntető Törvénykönyv
(Hungarian Criminal Code), which provides that a person who
uses or displays,
in public, the symbol consisting of a five-
pointed red star commits — where the conduct does not
amount to a more serious criminal offence — a minor offence,
compatible with the fundamental Community-law principle of
non-discrimination? Do Article 6 TEU, according to which the
Union is founded on the principles of
liberty, democracy,
respect for human rights and fundamental freedoms, Directive
2000/43/EC (1), which also refers to fundamental freedoms, and
Articles 10, 11 and 12 of the Charter of Fundamental Rights,
allow a person who wishes to express his political convictions
through a symbol representing them to do so in any Member
State?

(1) OJ L 180, p. 22.