Case T-141/08

E.ON Energie AG

v

European Commission

(Competition – Administrative procedure – Decision finding a breach of seal – Article 23(1)(e) of Regulation (EC) No 1/2003 – Burden of proof – Presumption of innocence – Proportionality – Duty to state reasons)

Summary of the Judgment

1.      Competition – Administrative procedure – Commission decision finding an infringement – Evidence which has to be gathered – Degree of evidential value required

(Art. 81(1) EC)

2.      European Union law – Principles – Fundamental rights – Presumption of innocence – Procedures in competition matters – Applicability

(Art. 6(2) EU; Charter of Fundamental Rights of the European Union, Art. 47)

3.      Competition – Administrative procedure – Commission decision finding an infringement consisting in the conclusion of an anti-competitive agreement – Decision based on direct evidence – Evidential obligations of the undertakings denying the infringement

(Arts 81 EC and 82 EC)

4.      Competition – Fines – Conditions for imposing Commission fines – Infringement committed intentionally or negligently – Decision finding the breaking of a seal – Burden of proof on the Commission – Limits

(Council Regulation No 1/2003, Art. 23(1)(e))

1.      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. For that purpose, it must gather sufficiently precise and consistent evidence to support the firm conviction that the alleged infringement took place

(see para. 48)

2.      The principle of the presumption of innocence, resulting in particular from Article 6(2) of the European Convention on Human Rights, is one of the fundamental rights which, according to the case-law of the Court of Justice, reaffirmed by the preamble to the Single European Act, by Article 6(2) EU and by Article 47 of the Charter of Fundamental Rights of the European Union, are protected in the Community legal order. Given the nature of the infringements at issue and the nature and degree of severity of the ensuing penalties, the principle of the presumption of innocence applies in particular to procedures relating to infringements of the competition rules applicable to undertakings that may result in the imposition of fines or periodic penalty payments.

Where there is doubt, the benefit of that doubt must be given to the undertakings accused of the infringement. The Court cannot therefore conclude that the Commission has established the existence of the infringement at issue to the requisite legal standard if it still entertains doubts on that point, in particular in proceedings for the annulment of a decision imposing a fine.

(see paras 51-52, 238)

3.      If the Commission finds, on the basis of the conduct of the undertakings concerned, that there has been an infringement of the competition rules, 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 order to conclude that an infringement occurred.

However, where the Commission acts on the basis of direct 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 may affect the probative value of that evidence in order for the Commission to bear the burden of proving that that circumstance could not have affected the probative value of that evidence. On the contrary, except in cases where such proof cannot be provided by the undertaking concerned due to 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 which it alleges and, on the other, that that circumstance calls in question the probative value of the evidence relied on by the Commission.

(see paras 54, 56, 199)

4.      Under Article 23(1)(e) of Regulation No 1/2003 on the implementation of the rules on competition laid down in Articles 81 and 82 EC, the Commission may impose fines where, intentionally or negligently, seals affixed by officials or other accompanying persons authorised by the Commission have been broken. Thus, under that provision, the onus is on the Commission to prove the breach of seal. On the other hand, it is not its responsibility to demonstrate that the room which had been sealed was actually entered or that the documents stored there were tampered with.

(see paras 85, 256)