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Appeal brought on 25 February 2011 by E.ON Energie AG against the judgment delivered on 15 December 2010 in Case T-141/08 E.ON Energie AG v Commission

(Case C-89/11P)

Language of the case: German

Parties

Appellant: E.ON Energie AG (represented by: A. Röhling, F. Dietrich and R. Pfromm, lawyers)

Other party to the proceedings: European Commission

Form of order sought

Set aside the contested judgment of the General Court and annul Commission Decision C(2008) 377 final, notified to the appellant on 6 February 2008, in Case COMP/B-1/39.326;

In the alternative, set aside the contested judgment and annul the decision referred to above in so far as (a) the appellant is ordered to pay a fine, and (b) the appellant is ordered to pay the costs, and uphold the appellant's claims made at first instance;

In the further alternative, set aside the contested judgment of the General Court and refer the matter back to the General Court;

Order the European Commission to pay the costs.

Pleas in law and main arguments

The appellant challenges the contested judgment of the General Court, claiming that it should be set aside and that Commission Decision C(2008) 377 final of 30 January 2008 in Case COMP/B-1/39.326 should be annulled. The judgment confirmed a decision by the respondent imposing a fine, in which it was alleged that the appellant had broken a seal apposed by representatives of the respondent in accordance with Article 20(2)(d) of Regulation (EC) No 1/2003 and thus 'negligently at least' infringed Article 23(1)(e) of Regulation No 1/2003. In support of its appeal, the appellant relies on six grounds of appeal:

1. Firstly, the appellant submits that the judgment of the General Court as regards the burden of proof is vitiated by errors in law and thus constitutes an infringement of the principle of the assumption of innocence and the Community law decision-making maxim of in dubio pro reo. In particular, the General Court failed to have regard to the fact that the evidence in the (undisputed) form of the seal apposed to its Shelf Life did not constitute 'sufficiently meaningful' proof to show the existence of an infringement.

2. By its second ground of appeal, the appellant submits that the General Court failed to fulfil its duty to state reasons by making an error of characterisation. The General Court failed to have regard, in the context of the reversal of the burden of proof, to the criterion, established originally by itself, of 'questioning' the evidentiary weight of the seal by means of the later requirement, taken into consideration in the context of the error of characterisation, of a direct 'causal connection' between the aging of the seal and the creation of a false positive result.

3. By its third ground of appeal, the appellant submits that there has been a distortion of evidence by the General Court and thus an infringement of the principles of logic, the general principle of the rule of law and a further infringement of the duty on the General Court to state reasons. In that regard, the appellant submits in particular that the General Court is weighing the evidence of the 'act documenting apposition of the seal' on the assumption that it will provide sufficient evidence of the correct apposition of the seal, an explanation which cannot be deduced therefrom.

4. By its fourth ground of appeal, the appellant alleges that there is a further lack of reasons for the judgment connected with an infringement of the principles of logic. With reference to the further sealing within the appellant's premises, the General Court also derives, from the functioning of the seal used for that purpose, an illogical deduction as to the functioning of the disputed seal.

5. By its fifth ground of appeal, the appellant submits that the General Court infringes the rules of correct evidentiary procedure, the principles of logic and the principle in dubio pro reo. In particular, the General Court erred in law by holding that the submission of the appellant with regard to the condition of the 'VOID' lettering on the doorframe was irrelevant and failed to make an inquiry, in breach of the rules of correct evidentiary procedure.

6. By its sixth ground of appeal, finally, the appellant claims that the General Court again infringed the rules of correct evidentiary procedure and the legal principle of proportionality as regards the calculation of the fine. The General Court failed to have regard to the mitigating fact that the respondent itself was the cause of the situation, subsequently no longer able to be clarified, on the day of the search. In addition, with regard to the scope of the effect of the protected goods, the General Court erred in law by failing to take evidence on the essential question of the opening of the door, which is relevant to the gravity of the act and thus to the amount of the fine.

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