21.6.2008

Official Journal of the European Union

C 158/18

(Case T-141/08)

(2008/C 158/30)

Language of the case: German

Parties

Applicant: E.ON Energie AG (Munich, Germany) (represented by: A. Röhling, C. Krohs and F. Dietrich, lawyers)

Defendant: Commission of the European Communities

Form of order sought

—Annul the defendant's Decision C(2008) 377 Final of 30 January 2008 in Case COMP/B-1/39.326 — E.ON Energie;

—In the alternative, reduce the amount of the fine imposed on the applicant to an appropriate amount;

—Order the defendant to pay the costs.

Pleas in law and main arguments

The applicant challenges Commission Decision C(2008) 377 Final of 30 January 2008 in Case COMP/B-1/39.326 — E.ON Energie AG. In that decision the Commission imposed a fine on the applicant as it broke a seal affixed by representatives of the Commission under Article 20(2)(d) of Regulation (EC) No 1/2003 (1) and, at least negligently, infringed Article 23(1)(e) of that regulation.

The applicant relies on nine pleas in law in support of its action. In the first six pleas the applicant attempts to state that there is insufficient evidence of an infringement of the law. It is submitted in particular that there was failure to have regard to the full burden of proof which lies with the defendant, infringement of the inquisitorial principle, an erroneous assumption that the seal was affixed properly, a false assumption that there was something amiss with the condition of the seal on the following day, a false assumption as to the suitability of the security foil, and that there was failure on the defendant's part to consider alternative scenarios.

With the seventh plea it is submitted that the presumption of innocence was disregarded and thus essential rules as to procedure and form were infringed.

Eighth, the applicant submits that the defendant erred in making the accusation of fault for the purpose of Article 23 of Regulation No 1/2003.

Lastly, it is submitted that there were infringements of the law when the fine was calculated. According to the applicant there was infringement of the principle prohibiting arbitrary measures and of the obligation to state reasons laid down in Article 253 EC. There was failure to have regard to mitigating circumstances and an erroneous acceptance of aggravating circumstances.

Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1).