Peróxidos Orgánicos, SA v Commission of the European Communities (T-120/04)

Judgment of 16 Nov 2006

law://eu/cjeu/2004/t-120-04/para_77@2026-11-14

77In relation to the first possibility, based on the premiss that the Commission misapplied the criteria governing limitation in respect of Pergan, the Court considers that in any event such unlawfulness, which is not the subject of proceedings in the present case, would not mean that the applicant's application for annulment is well founded. In this respect, it is appropriate to recall that the principle of equal treatment must be reconciled with the principle of legality and thus a person may not rely, in support of his claim, on an unlawful act committed in favour of a third party (see, to that effect, Case 134/84 Williams v Court of Auditors [1985] ECR 2225, paragraph 14; Case T-327/94 SCA Holding v Commission [1998] ECR II-1373, paragraph 160; and Case T-23/99 LR AF 1998 v Commission [2002] ECR II-1705, paragraph 367). A possible unlawful act committed with regard to another undertaking, which is not party to the present proceedings, cannot induce the Court to find that it is discriminatory and, therefore, unlawful with regard to the applicant Such an approach would be tantamount to laying down a principle of ‘equal treatment in illegality’ and to requiring the Commission, in the present case, to disregard the evidence in its possession to sanction the undertaking which has committed a punishable infringement, solely on the ground that another undertaking which may find itself in a comparable situation has unlawfully escaped being penalised. In addition, as is clear from the case-law on the principle of equal treatment, where an undertaking has acted in breach of Article 81(1) EC, it cannot escape being penalised altogether on the ground that other undertakings have not been fined, where, as in this case, those undertakings' circumstances are not the subject of proceedings before the Court (Joined Cases C-89/85, C-104/85, C-114/85, C-116/85, C-117/85 and C-125/85 to C-129/85 Ahlström Osakeyhtiö and Others v Commission [1993] ECR I-1307, paragraph 197, and Joined Cases T-5/00 and T-6/00 Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied and Technische Unie v Commission [2003] ECR II-5761, paragraph 430).

Peróxidos Orgánicos, SA v Commission of the European Communities (T-120/04)

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