Competition: Advocate General opinion on appeal by E.ON against fine imposed for breaking a seal

On 21 June 2012, Advocate General Bot gave an opinion on the appeal brought by E.ON Energie AG (E.ON) against a General Court (“GC”) judgment that upheld a decision by the Commission to fine E.ON EUR 38 million for breaking a seal affixed during the course of a Commission investigation. The Advocate General found that most of E.ON’s pleas were unfounded or inadmissible.

However, he considered that the GC had not exercised its unlimited jurisdiction and had not acted like an appeal court as required by Article 6 of the European Convention on Human Rights. In particular, the Advocate General was of the opinion that the GC’s appraisal was not sufficiently independent of that of the Commission, the GC did not consider in detail E.ON’s size and global resources, which the Advocate General considered to be important in the assessment of the proportionality of the fine, and it should have taken into account the fact that the infringement was due to negligence.

Therefore, the Advocate General recommended that the GC judgment be set aside and referred back to the General Court for judgment concerning the proportionality of the fine to be imposed. Source: Case C-89/11 P – E.ON Energie AG v Commission, Opinion of Advocate General Bot 21/06/ 2012

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