E.ON AG, v European Commission

In that regard, if the method used by the Commission in setting the amount of the fine, as stated in recitals 339 and 358 to 391 of the contested decision, is applied, namely (initial percentage applied to the average annual sales in France x duration of the infringement in France) + (percentage of the additional amount applied to the average annual sales in France) + (initial percentage applied to the average annual sales in Germany x duration of the infringement in Germany) + (percentage of the additional amount applied to the average annual sales in Germany), using the corrected figure for the duration of the infringement in France (4 years instead of 5.5) and the average sales in relation to the infringement on the French market in order to take account of the partial annulment of the contested decision by the Court, the amount of the applicants’ fine should be EUR 267 million.

However, it must be borne in mind that the unlimited jurisdiction conferred on the Court by Article 31 of Regulation No 1/2003, in application of Article 229 EC, empowers the Court not only to carry out a simple review of the lawfulness of the penalty – which allows the Court only to dismiss the action for annulment or to annul the contested measure – but also to substitute its own appraisal for the Commission’s and, consequently, to vary the contested measure – even without annulling it – in light of all the factual circumstances, by amending the fine imposed where the question of the amount of the fine is before it (see, to that effect, Case C‑3/06 P Groupe Danone v Commission [2007] ECR I‑1331, paragraphs 61 and 62, and Case C‑534/07 P Prym and Prym Consumer v Commission [2009] ECR I‑7415, paragraph 86 and the case-law cited).

In that regard, it should be observed that the Court is not bound by the Commission’s calculations or by its Guidelines when it adjudicates in the exercise of its unlimited jurisdiction (see, to that effect, BASF and UCB v Commission , paragraph 251 above, paragraph 213 and the case-law cited), but must make its own appraisal, taking account of all the circumstances of the case.

In the present case, the Court takes the view that the application of the method followed by the Commission in setting the fine, as set out in paragraph 299 above, does not take into account all the relevant circumstances.

The consequence of the application of that method to the corrected figures concerning the duration of the infringement in France and the average sales in connection with the infringement on the French market during that period would entail a reduction in the applicants’ fine which is greatly disproportionate to the relative importance of the error which has been found to exist. Although the Commission’s error relates only to the French market and only to 12 and a half months of the five years and one month initially established by the Commission for the infringement committed on that market, the application of the Commission’s method would result in a reduction in the fine of more than 50%.

What is more, the application of the Commission’s method would, in setting the amount of the fine, underestimate the relative importance of the infringement committed on the German market in comparison with that committed on the French market.

Consequently, having heard the parties at the hearing on the possible consequences, as regards the amount of the fine, of a partial annulment of the contested decision so far as concerns the determination of that amount in the light of the duration of the infringement, and in view of all the foregoing considerations, in particular paragraphs 303 and 304 above, the final amount of the fine imposed on the applicants must, in the light of all the circumstances of the case, in particular the duration and the gravity of the infringement, be set at EUR 320 million.

Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. However, under the first subparagraph of Article 87(3) of the Rules of Procedure, where each party succeeds on some and fails on other heads, or where the circumstances are exceptional, the General Court may order that the costs be shared or that each party bear its own costs.

In view of the fact that each party has been partially unsuccessful, it must be held that each party shall bear its own costs.

annuls Article 1 of Commission Decision C(2009) 5355 final of 8 July 2009 relating to a proceeding under Article 81 [EC] (Case COMP/39.401 – E.ON/GDF), first, inasmuch as it found that the duration of the infringement was from 1 January 1980 until at least 24 April 1998 as regards the infringement committed in Germany and, secondly, inasmuch as it found that an infringement was committed in France from 13 August 2004 to 30 September 2005;

sets the amount of the fine imposed on E.ON Ruhrgas AG and E.ON AG in Article 2(a) of Decision C(2009) 5355 final at EUR 320 million;

dismisses the action as to the remainder;

orders each party to bear its own costs.

European Union law

National laws

The undertakings in question

The MEGAL agreement

Administrative procedure

The head of claim seeking the annulment of the contested decision

The heads of claim seeking a reduction in the amount of the fine