Court of Justice 21 June 2012, C‑89/11 P (E.ON Energie AG v European Commission.)

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In this Opinion, Advocate General Bot addresses an appeal by E.ON Energie AG against a General Court judgment upholding a €38 million fine imposed by the European Commission under Article 23(1)(e) of Regulation No 1/2003 for breaking an official seal during a competition inspection. The Advocate General proposes dismissing the first five grounds of appeal as either inadmissible (challenging factual findings outside the Court of Justice's appellate jurisdiction) or unfounded, while finding the sixth ground well founded on the basis that the General Court failed to exercise its unlimited jurisdiction (juridiction de pleine juridiction) by not conducting a sufficiently independent and thorough proportionality review of the fine, particularly regarding the appellant's actual turnover, the negligent nature of the infringement, and the absence of evidence that documents were removed. Accordingly, the Advocate General recommends that the Court of Justice set aside the judgment under appeal in part and refer the case back to the General Court for a proper assessment of the proportionality of the fine.AI