E.ON Energie AG v European Commission.
Date: 2012-11-22
62. It should be recalled that, under the second paragraph of Article 252 TFEU, it is the duty of the Advocate General, acting with complete impartiality and independence, to make, in open court, reasoned submissions on cases which, in accordance with the Statute of the Court of Justice of the European Union, require the Advocate General’s involvement. In this regard, the Court is not bound either by the conclusion reached by the Advocate General or by the reasoning which led to that conclusion (see Case C‑229/09 Hogan Lovells International  [2010] ECR I‑11335, paragraph 26). Consequently, a party’s disagreement with the Opinion of the Advocate General, irrespective of the questions that he examines in his Opinion, cannot in itself constitute grounds justifying the reopening of the oral procedure.
64. It should be recalled, at the outset, that the General Court has exclusive jurisdiction to find and appraise the relevant facts and, in principle, to examine the evidence it accepts 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. Save where the clear sense of the evidence has been distorted, that appraisal does not therefore constitute a point of law which is subject as such to review by the Court of Justice (Case C‑535/06 P Moser Baer India v Council  [2009] ECR I‑7051, paragraph 32 and the case‑law cited).
65. However, where the General Court has found or appraised the facts, the Court of Justice has jurisdiction to carry out a review, provided that the General Court has defined their legal nature and determined the legal consequences (Case C‑136/92 P Commission v Brazzelli Lualdi and Others  [1994] ECR I‑1981, paragraph 49).
The first ground of appeal, alleging an error in law with regard to the distribution of the burden of proof and an infringement of the violation of the principle of the presumption of innocence and the maxim of European Union law in dubio pro reo
Arguments of the parties
71. It should be borne in mind, as the General Court rightly stated at paragraph 48 of the judgment under appeal, that, in the field of competition law, where there is a dispute as to the existence of an infringement, it is for the Commission to prove the infringements found by it and to adduce evidence capable of demonstrating to the requisite legal standard the existence of the circumstances constituting an infringement (Case C‑185/95 P Baustahlgewebe  v Commission  [1998] ECR I‑8417, paragraph 58 and Joined Cases C‑2/01 P and C‑3/01 P BAI and Commission  v Bayer  [2004] ECR I‑23, paragraph 62).
72. Moreover, where the Court still has a doubt, the benefit of that doubt must be given to the undertakings accused of the infringement (see, to that effect, Case 27/76 United Brands and United Brands Continentaal  v Commission [1978] ECR 207, paragraph 265). Indeed, the presumption of innocence constitutes a general principle of European Union law, currently laid down in Article 48(1) of the Charter of Fundamental Rights of the European Union.
73. According to the Court’s case‑law, the principle of the presumption of innocence applies to the procedures relating to infringements of the competition rules applicable to undertakings that may result in the imposition of fines or periodic penalty payments (see, to that effect, Case C‑199/92 P Hüls  v Commission  [1999] ECR I‑4287, paragraphs 149 and 150, and Montecatini  v Commission , paragraphs 175 and 176).
74. Admittedly, 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 (see, to that effect, Joined Cases 29/83 and 30/83 CRAM and Rheinzink  v Commission  [1984] ECR 1679, paragraph 16 and Joined Cases C‑89/95, C‑104/85, C‑114/85, C‑116/85, C‑117/85 and C‑125/85 to C‑129/85 Ahlström and Others  v Commission  [1993] ECR I‑1307, paragraphs 126 and 127).
75. However, the Court has also held that, where the Commission has been able to establish that an undertaking had taken part in meetings between undertakings of a manifestly anti‑competitive nature, the General Court was entitled to consider that it was for that undertaking to provide another explanation of the tenor of those meetings. In so doing, the General Court had neither unduly reversed the burden of proof nor set aside the presumption of innocence ( Montecatini  v Commission , paragraph 181).
76. Likewise, as the General Court rightly pointed out, at paragraph 56 of the judgment under appeal, 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 so that the Commission bears the burden of proving that that circumstance was not capable of affecting the probative value of that 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.
77. In the present case, E.ON Energie complains that in the judgment under appeal the General Court applied, by analogy, paragraph 181 of the judgment in Montecatini  v Commission to a breach of seal.
84. Contrary to what to Commission contends, the second ground of the appeal is admissible. Indeed, in so far as E.ON Energie complains of an alleged contradiction between the legal rule laid down at paragraph 56 of the judgment under appeal and the implementation of that rule at paragraph 202 of that judgment, thereby casting doubt on the reasoning followed by the General Court in its application of European Union law on the burden of proof, E.ON Energie is raising a legal issue concerning the application of European Union law by the General Court (Case C‑412/05 P Alcon  v OHIM  [2007] ECR I‑3569, paragraph 89).
101. Moreover, in accordance with the case‑law cited in paragraph 64 above, 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 (see also, to that effect, Case C‑328/05 P SGL Carbon  v Commission  [2007] ECR I‑3921, paragraph 41 and the case‑law cited). However, in its submissions relating to the relevance of the statements of the inspectors, E.ON Energie seeks to the challenge the value given to that evidence by the General Court. Consequently, its argument must be dismissed as inadmissible.
112. It should be noted, at the outset, that an appeal is inadmissible where, without even including an argument specifically identifying the error of law allegedly vitiating the judgment of the General Court, it simply repeats or reproduces verbatim the pleas in law and arguments already put forward before that Court, including those which were based on facts expressly rejected by that Court. Such an appeal amounts in reality to no more than a request for re‑examination of the application submitted to the General Court, which the Court of Justice does not have jurisdiction to undertake on appeal (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 Portland and Others  v Commission  [2004] ECR I‑123, paragraph 51 and the case‑law cited).
113. By contrast, where an appellant challenges the interpretation or the 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, if an appellant could not thus 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 (Case C‑229/05 P PKK and KNK  v Council  [2007] ECR I‑439, paragraph 32 and the case‑law cited).
115. As regards the failure by the General Court to order measures of inquiry, it should be borne in mind that, according to well‑established case‑law, the General Court is the sole judge of any need to supplement the information available to it concerning the cases before it. The question whether the procedural documents before it are convincing is a matter to be appraised by it alone, which, again according to well‑established case‑law, is not subject to review by the Court of Justice, unless the facts or evidence have been distorted (see Case C‑119/97 P Ufex and Others  v Commission  [1999] ECR I‑1341, paragraph 66; and Case C‑315/99 P Ismeri Europa  v Court of Auditors  [2001] ECR I‑5281, paragraph 19).
123. It should be borne in mind, from the outset, that, in accordance with Article 261 TFEU and with Article 31 of Regulation No 1/2003, the General Court has unlimited jurisdiction with regard to the fines imposed by the Commission.
124. The General Court is therefore empowered, in addition to carrying out a mere review of the lawfulness of those fines, to substitute its own appraisal for that of the Commission and, consequently, to cancel, reduce or increase the fine or penalty payment imposed (Case C‑3/06 P Groupe Danone  v Commission  [2007] ECR I‑1331, paragraph 61 and the case‑law cited).
125. By contrast, it is not for the Court of Justice, when ruling on questions 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 infringements of European Union law (see, to that effect, Case C‑310/93 P BPB Industries and British Gypsum  v Commission  [1995] ECR I‑865, paragraph 34; and Case C‑248/98 P KNP BT  v Commission  [2000] ECR I‑9641, paragraph 54).
126. 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.
133. Accordingly, as regards the possible fine that could be imposed on E.ON Energie, pursuant to Article 23(2) of Regulation No 1/2003, in the event that the practices investigated are proved to have occurred, the fine of EUR 38 million, set down in the contested decision and confirmed by the General Court in the judgment under appeal and representing 0.14% of its annual turnover, could not be considered as excessive as regards the need to ensure its deterrent effect. It must be added, for the record, that by advancing, at paragraph 294 of the judgment under appeal, the three reasons mentioned at paragraph 127 above, the General Court gave sufficient reasons for its decision, adopted in the exercise of its unlimited jurisdiction, on the proportionality of the penalty imposed.