Judgment of the Court (Fourth Chamber) of 22 May 2008 – Degussa v Commission

(Case C-266/06 P)

Appeal – Competition – Cartel – Market in methionine – Fine – Regulation No 17 – Article 15(2) – Nulla poena sine lege – Distortion of the facts – Principle of proportionality – Principle of equal treatment

1. Community law – General legal principles – Legal certainty – Nulla poena sine lege – Scope (see paras 38-40, 44-46)

2. Competition – Fines – Amount – Determination – Discretion conferred on the Commission by Article 15(2) of Regulation No 17 (Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03) (see paras 50-62)

3. Appeals – Grounds – Mistaken assessment of the facts – Inadmissibility – Review by the Court of Justice of the assessment of the evidence – Possible only where the clear sense of the evidence has been distorted (Art. 225(1) EC; Statute of the Court of Justice, Art. 58, first para.) (see paras 72-74, 86, 94)

4. Appeals – Jurisdiction of the Court – Whether it may review, on grounds of fairness, the appraisal at first instance of the amount of a fine imposed on an undertaking – Not included – Whether it may review that appraisal on the ground that the principle of non-discrimination was infringed – Included (Art. 81(1), EC; Council Regulation No 17, Art. 15(2)) (see paras 95, 114)

5. Appeals – Grounds – Inadequate or contradictory grounds – Admissibility – Reliance by the Court of First Instance on implied reasoning – Whether lawful – Conditions (Art. 225(1) EC; Statute of the Court of Justice, Arts 36, 53, first para., and 58, first para.) (see paras 102-103)

6. Competition – Fines – Amount – Determination – Criteria – Need to distinguish between the undertakings involved in the same infringement according to their total turnover – None (Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03, para. 1A, fifth subpara.) (see paras 119-123)

Re:

Operative part

The Court:

1.Dismisses the appeal;

2.Orders Evonik Degussa GmbH to bear the costs;

3.Orders the Council of the European Union to pay its own costs.