Judgment_paragraph 321 · Groupe Danone v Commission of the European Communities (T-38/02)

321The applicant submits in the second place that the Commission infringed the principle nulla poena sine lege, since there is no legal basis in the Community legal order for taking the aggravating circumstance of repeated infringement into consideration. The Court of Justice has held that the general legal principle nulla poena sine lege imposes a limit on the discretionary power of the institutions inasmuch as a penalty, even of a non-criminal nature, cannot be imposed unless it rests on a clear and unambiguous legal basis (Case 117/83 Könecke [1984] ECR 3291, paragraph 11). Furthermore, the European Court of Human Rights has also held that the general principles and the guarantees attached to the rights of the defence apply to every penalty having both a deterrent and punitive purpose, whatever the classification of the infringement under national law (see Eur. Court H.R., the Öztürk v Germany judgment of 21 February 1984, Series A No 73). Only the Council and the Parliament are empowered, by virtue of their legislative power, to confer on the concept of repeated infringement the legal basis necessary for its application as an aggravating circumstance by the Commission.