Corte di giustizia UE/2013

[OSCURATO:PERSONA] ([OSCURATO:PERSONA]) 26 September 2013 ( * ) (Appeal – Competition – Agreements, decisions and concerted practices – Market for chloroprene rubber – Price-fixing and market-sharing – Infringement of [OSCURATO:PERSONA] 81 EC – Imputability of the unlawful conduct of a subsidiary to its parent company – Joint control by two parent companies – Decisive influence – Joint and several liability – Limitation period – Legitimate interest) [OSCURATO:PERSONA] C‑172/12 P, APPEAL under [OSCURATO:PERSONA] 56 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], brought on 5 April 2012, EI du Pont de Nemours and [OSCURATO:PERSONA], established in Wilmington ([OSCURATO:PERSONA]), represented by J. Boyce and A. Lyle-Smythe, Solicitors, appellant, the other parties to the proceedings being: [OSCURATO:PERSONA], represented by V. Bottka and A. Biolan, acting as Agents, with an address for service in Luxembourg, defendant at first instance, DuPont [OSCURATO:PERSONA] LLC, established in Wilmington, DuPont [OSCURATO:PERSONA] SA, established in Grand-Saconnex (Switzerland), Represented by J. Boyce and A. Lyle-Smythe, applicants at first instance, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), composed of J. Malenovský, President of the [OSCURATO:PERSONA], U. Lõhmus (Rapporteur) and M. Safjan, Judges, [OSCURATO:PERSONA]: P. Mengozzi, Registrar: A. [OSCURATO:PERSONA], having regard to the written procedure, having decided, after hearing the [OSCURATO:PERSONA], to proceed to judgment without an Opinion, gives the following [OSCURATO:PERSONA] 1 By its appeal, EI du Pont de Nemours and [OSCURATO:PERSONA] (‘EI DuPont’) asks the [OSCURATO:PERSONA], first, to set aside the judgment of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 2 February 2012 in [OSCURATO:PERSONA] T‑76/08 (‘the judgment under appeal’), by which the [OSCURATO:PERSONA] dismissed EI DuPont’s application for the annulment of Articles 1 and 2 of [OSCURATO:PERSONA] C(2007) 5910 final of 5 December 2007, relating to a proceeding under [OSCURATO:PERSONA] [81 EC] and [OSCURATO:PERSONA] 53 of the EEA [OSCURATO:PERSONA] ([OSCURATO:PERSONA] COMP/F/38.629 – [OSCURATO:PERSONA]) (‘the decision of 5 December 2007’), as amended by [OSCURATO:PERSONA] C(2008) 2974 final of 23 June 2008 (‘the decision at issue’), and, secondly, to annul the fine imposed on it by that decision. The background to the dispute and the decision at issue 2 The facts of the dispute, as set out in paragraphs 2 to 27 of the judgment under appeal, may be summarised as follows. 3 EI DuPont is the ultimate parent company of the DuPont group and has its headquarters in the [OSCURATO:PERSONA]. DuPont [OSCURATO:PERSONA] LLC (‘[OSCURATO:PERSONA]’) is a wholly-owned subsidiary of EI DuPont, and DuPont [OSCURATO:PERSONA] SA (‘[OSCURATO:PERSONA]’) is a wholly-owned subsidiary of [OSCURATO:PERSONA]. EI DuPont was the first undertaking to develop chloroprene rubber (‘CR’). It remained active on the CR market until 1 April 1996, when it transferred all its activities in the elastomers sector to DuPont [OSCURATO:PERSONA] LLC (‘DDE’), a joint venture held in equal shares by EI DuPont and [OSCURATO:PERSONA] (‘Dow’). On 1 July 2005 EI DuPont acquired the 50% share held by Dow in DDE. DDE then became a wholly-owned subsidiary of EI DuPont and was renamed [OSCURATO:PERSONA]. [OSCURATO:PERSONA]’s regional office for Europe is [OSCURATO:PERSONA], a wholly-owned subsidiary of [OSCURATO:PERSONA] 4 On 27 March 2003 the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] carried out inspections at the premises of, inter alia, [OSCURATO:PERSONA]. On 21 November 2003, DDE applied for leniency in accordance with the [OSCURATO:PERSONA] notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3). 5 On 13 March 2007, the [OSCURATO:PERSONA] sent a statement of objections to 12 undertakings, including EI DuPont. On 5 December 2007, the [OSCURATO:PERSONA] adopted an initial decision in which it took the view that, between 1993 and 2002 several producers of CR had participated in a single and continuous infringement of [OSCURATO:PERSONA] 81 EC and [OSCURATO:PERSONA] 53 of the [OSCURATO:PERSONA] of 2 May 1992 (OJ 1994, L 1, p. 3), covering the entire territory of the [OSCURATO:PERSONA] (EEA), consisting of agreements and concerted practices aimed at agreeing upon the allocation and the stabilisation of markets, market shares and sales quotas for CR, coordinating and implementing several price increases, agreeing upon minimum prices, allocating customers and exchanging competitively sensitive information. Those producers met on a regular basis several times a year in bilateral, trilateral and multilateral meetings. 6 In that decision the [OSCURATO:PERSONA] imputed liability for the cartel, in particular, to EI DuPont, [OSCURATO:PERSONA], [OSCURATO:PERSONA] and Dow, and ordered those undertakings to bring that infringement immediately to an end in so far as they had not already done so, and to refrain immediately from any restrictive practice having the same or similar object or effect. 7 In determining the basic amount of the fines, the [OSCURATO:PERSONA] relied on its Guidelines on the method of setting fines imposed pursuant to [OSCURATO:PERSONA] 23(2)(a) of [OSCURATO:PERSONA] (EC) No 1/2003 (OJ 2006 C 210, p. 2; ‘the Guidelines on the method of setting fines’). It took into account a proportion of the value of the sales of CR made by each undertaking within the EEA during 2001, which was the last full year of participation in the infringement, and multiplied it by the number of years of infringement. 8 In order to determine the proportion of the value of sales to be taken into account, the [OSCURATO:PERSONA] found that the horizontal market-sharing and price-fixing agreements were by their very nature among the most serious restrictions of competition. In that regard, the [OSCURATO:PERSONA] also considered that the combined market share of the undertakings participating in the infringement came to 100% within the EEA, that the geographic scope of the infringement was worldwide and that the infringement had been systematically implemented. Consequently, the [OSCURATO:PERSONA] determined the proportion of the sales volumes of each undertaking involved at 21%. 9 As the participation in the infringement had lasted for nine years for EI DuPont, and six years and one month for [OSCURATO:PERSONA], [OSCURATO:PERSONA] and Dow, the [OSCURATO:PERSONA], in application of point 24 of the Guidelines on the method of setting fines, multiplied the starting amounts of the fines determined by reference to the value of sales by nine for EI DuPont, and by six and a half for [OSCURATO:PERSONA], [OSCURATO:PERSONA] and Dow. 10 In order to deter the undertakings from participating in an agreement relating to market-sharing or horizontal price-fixing agreements such as those in issue in the present case, and taking into account in particular the factors referred to in the two preceding paragraphs, the [OSCURATO:PERSONA], in application of point 25 of the Guidelines on the method of setting fines, included in the basic amount of the fines an additional amount of 20% of the value of sales. 11 Furthermore, the [OSCURATO:PERSONA] considered that EI DuPont and Dow, as the parent companies of the joint venture DDE, should be held jointly and severally liable for the behaviour of that joint venture during the period from 1 April 1996 to 13 May 2002. In addition, it found that, as the successors to DDE, the entities [OSCURATO:PERSONA] and [OSCURATO:PERSONA] should also be held jointly and severally liable for DDE’s conduct during that period, because, after the infringement was ended, they took over its activities on the CR market. 12 In the light of those factors, the basic amount of the fine to be imposed on EI DuPont was fixed at EUR 79 million, of which EUR 59 million was to be paid jointly and severally with [OSCURATO:PERSONA], [OSCURATO:PERSONA] and Dow. 13 As regards the adjustments to the basic amounts of the fines for aggravating circumstances, no increase was applied to the fine to be imposed on EI DuPont, since no aggravating circumstance was found to exist in its case. 14 [OSCURATO:PERSONA] also applied a specific increase to the fines of certain addressees of the decision of 5 December 2007 in order to ensure that the fines would have a sufficiently deterrent effect, taking into account those undertakings’ turnovers beyond the goods and services to which the infringement related. Thus, no specific increase was applied to the basic amount of the fine to be imposed on EI DuPont. However, the basic amount of the fine to be imposed on Dow was multiplied by 1.1. Therefore, the sum to be paid jointly and severally with Dow was increased to EUR 64.9 million. 15 With regard to the application of the notice on immunity from fines and reduction of fines in cartel cases, the [OSCURATO:PERSONA] granted a reduction in the basic amount of the fine of 25% to EI DuPont, [OSCURATO:PERSONA], [OSCURATO:PERSONA] and Dow. 16 The amount of the fine imposed on EI DuPont was therefore set at EUR 59.25 million, of which EUR 44.25 million was to be paid jointly and severally with [OSCURATO:PERSONA] and [OSCURATO:PERSONA], and EUR 48.675 million was to be paid jointly and severally with Dow. 17 Finally the [OSCURATO:PERSONA] adopted the amending decision of 23 June 2008, which was sent to EI DuPont, [OSCURATO:PERSONA], [OSCURATO:PERSONA] and Dow. [OSCURATO:PERSONA] that decision, Dow was solely liable for payment of a fine of EUR 4.425 million, while the amount of the fine, for payment of which EI DuPont and Dow were held jointly and severally liable, was reduced to EUR 44.25 million. In that decision, the [OSCURATO:PERSONA] also corrected a factual error in the calculation of the amount of the fine to be paid by EI DuPont, in so far as that amount was the result of the application of the coefficient multiplier of 10% for deterrence to the fine imposed only on Dow. The procedure before the [OSCURATO:PERSONA] and the judgment under appeal 18 By application lodged at the Registry of the [OSCURATO:PERSONA] on 15 February 2008, EI DuPont brought an action for annulment of [OSCURATO:PERSONA] 1(b) of the decision of 5 December 2007, in so far as it concluded that EI DuPont participated in the infringement, and of [OSCURATO:PERSONA] 2(b) of that decision requiring it to pay a fine, and, in the alternative, a reduction of the amount of the fine imposed on it by that decision. In that regard, it must be noted that in its reply EI DuPont reformulated its claims, pleas in law and arguments in the light of the amendments made by the [OSCURATO:PERSONA] to the decision of 5 December 2007 by its amending decision of 23 June 2008. Therefore, that application was regarded as being directed against the decision of 5 December 2007, as amended; that is to say, the decision at issue. 19 In support of its action, EI DuPont raised six pleas in law. The first three, the only grounds which are relevant for the purposes of this appeal, alleged: (i) incorrect imputation of the infringement to EI DuPont during the period from 1 April 1996 to 13 May 2002 (‘the DDE period’); (ii) breach of the rules on limitation; and (iii) lack of a legitimate interest on the [OSCURATO:PERSONA]’s part in addressing a decision to EI DuPont. 20 By its first plea, EI DuPont criticised in particular the [OSCURATO:PERSONA] for finding that it had participated in the cartel during the DDE period and for wrongly holding it jointly and severally liable for DDE’s participation in that cartel during that period. Specifically, the [OSCURATO:PERSONA] did not prove that EI DuPont had exercised decisive influence over DDE. 21 In that regard, the [OSCURATO:PERSONA] pointed out, in paragraph 64 of the judgment under appeal, that EI DuPont did not contest its participation in a cartel in breach of [OSCURATO:PERSONA] 81 EC between 13 May 1993 and 31 March 1996. Similarly, it is clear from paragraph 64 that EI DuPont also did not contest DDE’s involvement in a cartel in breach of [OSCURATO:PERSONA] 81 EC during the DDE period, or the fact that that infringement was imputed to [OSCURATO:PERSONA] and [OSCURATO:PERSONA] as the successors in title to DDE. 22 In paragraphs 70 to 73 of the judgment under appeal, the [OSCURATO:PERSONA] reviewed the tests used by the [OSCURATO:PERSONA] in the decision at issue to demonstrate that DDE’s parent companies did in fact exercise decisive influence over its conduct on the CR market. 23 [OSCURATO:PERSONA] stated in paragraph 74 of the judgment under appeal that, in the light of all the economic, legal and organisational links between EI DuPont and DDE, the [OSCURATO:PERSONA] did not err in finding that EI DuPont, as one of DDE’s two parent companies, had exercised decisive influence over its conduct on the CR market. [OSCURATO:PERSONA] did not therefore err in finding that EI DuPont and DDE formed a single undertaking for the purposes of [OSCURATO:PERSONA] 81 EC and in holding EI DuPont jointly and severally liable for DDE’s conduct during the DDE period. 24 In paragraphs 76 to 82 of the judgment under appeal, the [OSCURATO:PERSONA] dismissed EI DuPont’s arguments which could have called into question its finding concerning EI DuPont’s exercise of decisive influence over DDE. Consequently, in paragraph 83 of the judgment under appeal, the [OSCURATO:PERSONA] dismissed the first plea in law. 25 By its second plea in law, EI DuPont alleged that the [OSCURATO:PERSONA] infringed the rules on limitation periods by imposing on it a fine for the period from 13 May 1993 to 31 March 1996 (the period before the DDE period). It argued that imposing such a fine, in the circumstances of this case, contravened the principles of legal certainty and legitimate expectations as the limitation period of five years expired on 31 March 2001. 26 In dismissing that plea as unfounded, the [OSCURATO:PERSONA] stated in paragraphs 87 and 88 of the judgment under appeal that it was clear from the analysis of the first plea that the [OSCURATO:PERSONA] had rightly taken the view that EI DuPont should be held jointly and severally liable for DDE’s conduct during the DDE period. In addition it stated that the applicants, including EI DuPont, had not contested the characterisation of the infringement committed between 13 May 1993 and 13 May 2002 as single and continuous. [OSCURATO:PERSONA] therefore concluded that, contrary to what the applicants argued, the infringement committed by DDE did not end on 31 March (or 1 April) 1996 and that the [OSCURATO:PERSONA] could therefore impose a fine on EI DuPont for the entire period during which that infringement was committed, including the period before the DDE period. 27 By its third plea, EI DuPont claimed that, since the right of the [OSCURATO:PERSONA] to impose a fine was time-barred, the [OSCURATO:PERSONA] had to demonstrate that it had a legitimate interest in adopting a decision against EI DuPont. 28 The third plea was dismissed as unfounded in paragraphs 91 to 93 of the judgment under appeal. [OSCURATO:PERSONA] held in particular in paragraph 92 of that judgment that the [OSCURATO:PERSONA] could impose a fine on EI DuPont for the entire period in which the infringement was committed, including the period before the DDE period. Therefore, in the opinion of the [OSCURATO:PERSONA], the [OSCURATO:PERSONA] did not have to demonstrate that it had a legitimate interest in adopting a decision against EI DuPont. 29 Having rejected the fourth to sixth pleas in law as being similarly unfounded, the [OSCURATO:PERSONA] dismissed the action in its entirety. Forms of order sought 30 EI DuPont claims that the [OSCURATO:PERSONA] of Justice should: –        set aside the judgment under appeal; and –        order the [OSCURATO:PERSONA] to pay the costs. 31 [OSCURATO:PERSONA] contends that the [OSCURATO:PERSONA] of Justice should: –        dismiss the appeal; –        in the alternative, dismiss the application for annulment of the decision at issue; and –        order EI DuPont to pay the costs of both these proceedings and those before the [OSCURATO:PERSONA]. The appeal 32 EI DuPont puts forward three grounds in support of its appeal. By the first ground of appeal, it claims that the [OSCURATO:PERSONA] erred in law in imputing to it the infringement committed by DDE for the DDE period and in relation to its joint and several liability with Dow. By the second ground of appeal, it contests the finding in the judgment under appeal that the [OSCURATO:PERSONA] was not prevented, on account of the limitation period, from imposing fines on EI DuPont for the period before the DDE period; that is to say, from 13 May 1993 to 31 March 1996. The third ground of appeal alleges an error of law committed by the [OSCURATO:PERSONA] in that it did not find that the [OSCURATO:PERSONA] had failed to demonstrate that it had a legitimate interest in taking a decision against EI DuPont. The first ground of appeal: error of law committed by the [OSCURATO:PERSONA] in that it imputed the infringement to EI DuPont and held it jointly and severally liable with [OSCURATO:PERSONA] of the parties 33 By its first ground of appeal, EI DuPont criticises the [OSCURATO:PERSONA], first, for having stated in paragraph 74 of the judgment under appeal that ‘as one of DDE’s parent companies’ EI DuPont had exercised decisive influence over DDE’s conduct on the CR market, so that EI DuPont itself and DDE were part of a single undertaking for the purposes of [OSCURATO:PERSONA] 81 EC, and, secondly, for having held EI DuPont jointly and severally liable for DDE’s conduct during the DDE period. [OSCURATO:PERSONA] therefore erred in law in misinterpreting the term ‘single undertaking’ for the purposes of [OSCURATO:PERSONA] 81 EC. 34 Specifically, EI DuPont states that DDE was a full-function joint venture with its own legal personality, separate from that of its parent companies. Therefore, it did not have the capacity to exercise decisive influence over DDE. In that regard, EI DuPont submits that for a parent company to be liable for the infringements of the rules of competition law in the [OSCURATO:PERSONA] (‘competition law’) committed by a subsidiary, it must actually exercise decisive influence over that subsidiary on the date the infringements were committed. However, the [OSCURATO:PERSONA] sought to extend the notion of a parent company beyond the normal links which tie it to its subsidiary without taking into account the fact that neither EI DuPont nor Dow participated directly in that infringement. In doing so, the [OSCURATO:PERSONA] erred in law by failing to observe the principle of the personal responsibility of the economic entity which committed the infringement. 35 In addition EI DuPont claims that the [OSCURATO:PERSONA] failed to take account, in paragraphs 75 and 78 of the judgment under appeal, of the distinction drawn by competition law between joint control of a full-function joint venture and exclusive control exercised by a parent company over its wholly-owned subsidiaries. According to EI DuPont the first type of control is characterised by the fact that there is a possibility of a deadlock situation resulting from the power of two or more parent companies to veto strategic decisions, while the second type of control confers on a specific shareholder the power to determine the strategic decisions in an undertaking. 36 In that regard, EI DuPont maintains that neither it nor Dow exercised ‘exclusive’ decisive influence over DDE. The fact that they ‘jointly’ exercised decisive influence in accordance with [OSCURATO:PERSONA] (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (‘the EC [OSCURATO:PERSONA]’) (OJ 2004 L 24, p. 1) does not mean that one or other may incur liability under [OSCURATO:PERSONA] 81 EC as a result of the conduct of the joint venture. [OSCURATO:PERSONA] therefore wrongly asserted in paragraph 79 of the judgment under appeal that it formed ‘a single undertaking’ with Dow and DDE for the purposes of competition law. According to EI DuPont, that assertion of the [OSCURATO:PERSONA] led it to apply competition law in a misleading and inconsistent manner. 37 [OSCURATO:PERSONA] considers that the first ground of appeal is in part inadmissible, and must in any event be dismissed as unfounded. Findings of the [OSCURATO:PERSONA] 38 As regards the admissibility of the first ground of appeal, it must be stated that, contrary to what the [OSCURATO:PERSONA] contends, EI DuPont does not dispute the [OSCURATO:PERSONA] findings of fact, but the inferences in law drawn by the [OSCURATO:PERSONA] from those findings in relation to DDE’s lack of autonomy in order to determine the actual exercise of decisive influence. It follows that this ground of appeal is admissible. 39 With regard to the substance, EI DuPont claims, in essence, that by confirming in paragraph 74 of the judgment under appeal that EI DuPont had exercised decisive influence over DDE’s conduct on the CR market, the [OSCURATO:PERSONA] erred in law with regard to the imputation of the infringement jointly and severally with Dow during the DDE period. 40 In that regard, it is clear from paragraphs 74 and 79 of the judgment under appeal that the [OSCURATO:PERSONA] held that EI DuPont formed a single undertaking with DDE by reason of the decisive influence which it exercised over DDE’s conduct on that market. 41 It should be pointed out first of all that, in accordance with the settled case-law of the [OSCURATO:PERSONA] of Justice, the conduct of a subsidiary can be imputed to its parent company, in particular where, although it has separate legal personality, that subsidiary does not decide independently on its own conduct on the market, but carries out, in all material respects, the instructions given to it by the parent company, regard being had in particular to the economic, organisational and legal links between those two legal entities ([OSCURATO:PERSONA] C‑97/08 P [OSCURATO:PERSONA] and Others v [OSCURATO:PERSONA] [2009] ECR I‑8237, paragraphs 58 and 72, and [OSCURATO:PERSONA] C‑628/10 P and C‑14/11 P [OSCURATO:PERSONA] and [OSCURATO:PERSONA] v [OSCURATO:PERSONA] and [OSCURATO:PERSONA] v [OSCURATO:PERSONA] and Others [2012] ECR I‑0000, paragraph 43). 42 In such a situation, because the parent company and its subsidiary form a single economic unit and therefore form a single undertaking for the purposes of [OSCURATO:PERSONA] 81 EC, the [OSCURATO:PERSONA] may address a decision imposing fines to the parent company, without having to establish the personal involvement of the latter in the infringement (see [OSCURATO:PERSONA] and Others v [OSCURATO:PERSONA] , paragraph 59, and [OSCURATO:PERSONA] and [OSCURATO:PERSONA] v [OSCURATO:PERSONA] and [OSCURATO:PERSONA] v [OSCURATO:PERSONA] and Others , paragraph 44). 43 [OSCURATO:PERSONA] of Justice has also stipulated that account must be taken of all the relevant factors relating to the economic, organisational and legal links which tie the subsidiary to the parent company, which may vary from case to case and cannot therefore be set out in an exhaustive list (see, to that effect, [OSCURATO:PERSONA] and Others v [OSCURATO:PERSONA] , paragraph 74, and [OSCURATO:PERSONA] C‑521/09 P [OSCURATO:PERSONA] v [OSCURATO:PERSONA] [2011] ECR I‑8947, paragraph 58). 44 In paragraphs 58 to 60 of the judgment under appeal, the [OSCURATO:PERSONA] therefore cited the case-law setting out the test for imputing to a parent company the competition infringement committed by its subsidiary. It rightly found that, in order to be able to impute the conduct of a subsidiary to the parent company, the [OSCURATO:PERSONA] cannot merely find that the parent company is in a position to exercise decisive influence over the conduct of its subsidiary, but must also check whether that influence was actually exercised (see, to that effect, [OSCURATO:PERSONA] 107/82 AEG-Telefunken v [OSCURATO:PERSONA] [1983] ECR 3151, paragraph 50). 45 It should be noted in that regard that the rule that it is necessary to check whether the parent company actually exercised decisive influence over its subsidiary applies only where the subsidiary is not wholly owned by its parent company. According to the settled case-law of the [OSCURATO:PERSONA] of Justice, where the entire capital of the subsidiary is owned, there is no longer any requirement to carry out such a check since, in those circumstances, there is a presumption of decisive influence on the part of the parent company, which has the burden of rebutting that presumption (see [OSCURATO:PERSONA] and [OSCURATO:PERSONA] v [OSCURATO:PERSONA] and [OSCURATO:PERSONA] v [OSCURATO:PERSONA] and Others , paragraphs 46 and 47 and the case-law cited). 46 More specifically, with regard to the claim that the [OSCURATO:PERSONA] misconstrued the term ‘a single undertaking’, it must be stated that, in paragraph 58 of the judgment under appeal, the [OSCURATO:PERSONA] pointed out that, according to the settled case-law of the [OSCURATO:PERSONA] of Justice, in competition law the term undertaking must be understood as designating an economic unit for the purposes of the subject-matter of the agreement in question, even if in law that economic unit consists of several persons, natural or legal ([OSCURATO:PERSONA]‑170/83 [OSCURATO:PERSONA] [1984] ECR 2999, paragraph 11; [OSCURATO:PERSONA] C‑217/05 [OSCURATO:PERSONA] de Empresarios de Estaciones de Servicio [2006] ECR I‑11987, paragraph 40; and [OSCURATO:PERSONA] and Others v [OSCURATO:PERSONA] , paragraph 55). 47 Where two parent companies each have a 50% shareholding in the joint venture which committed an infringement of the rules of competition law, it is only for the purposes of establishing liability for participation in the infringement of that law and only in so far as the [OSCURATO:PERSONA] has demonstrated, on the basis of factual evidence, that both parent companies did in fact exercise decisive influence over the joint venture, that those three entities can be considered to form a single economic unit and therefore form a single undertaking for the purposes of [OSCURATO:PERSONA] 81 EC. 48 It must therefore be held that, as regards the verification process of the assessment carried out by the [OSCURATO:PERSONA], the [OSCURATO:PERSONA] did not misconstrue the term ‘a single undertaking’. 49 EI DuPont, in support of its first ground of appeal, also relies on other arguments, set out in paragraphs 34 and 35 above: first, that it cannot exercise decisive influence over DDE bearing in mind that DDE has separate legal personality from that of the parent companies; and secondly, that, since the joint control exercised by parent companies over their full-function joint venture gives them only a negative power to block the latter’s strategic decisions, that control cannot imply the existence of the parent company’s decisive influence over the subsidiary. In that regard, it must be noted that the [OSCURATO:PERSONA] did not find the existence of EI DuPont’s decisive influence over the subsidiary solely on the basis of the possibility that the parent companies could exercise joint control over that subsidiary, but that it relied on its own assessment of the economic, organisational and legal factors which tied DDE to its two parent companies, as determined by the [OSCURATO:PERSONA] in its decision of 5 December 2007. 50 In that regard, suffice it to state that, since the [OSCURATO:PERSONA] found that Dow exercised a decisive influence over DDE’s conduct on the basis of factors which, unless they have been distorted, cannot be called into question on appeal, those claims must be held to be unfounded. 51 As regards EI DuPont’s argument, set out in paragraph 36 above, that the fact that parent companies are deemed to exercise joint control in accordance with the EC [OSCURATO:PERSONA] does not mean that they incur liability under [OSCURATO:PERSONA] 81 EC by reason of the conduct of the joint venture, it must be pointed out that, as is clear from the case-law cited in paragraph 43 above, the evidence of such influence must be assessed having regard to all the economic, organisational and legal links between the subsidiary and the parent company. 52 In this case the [OSCURATO:PERSONA] concluded from all the evidence, in particular the control exercised by DDE’s two parent companies over its strategic business decisions, that those companies did in fact exercise decisive influence. Accordingly, it rightly pointed out in paragraph 78 of the judgment under appeal that the autonomy which a joint venture enjoys within the meaning of [OSCURATO:PERSONA] 3(4) of the EC [OSCURATO:PERSONA] does not mean that that joint venture also enjoys autonomy in relation to adopting strategic decisions, and that it is therefore not under the decisive influence of its parent companies for the purposes of [OSCURATO:PERSONA] 81 EC. 53 Consequently, it must be stated that, contrary to what EI DuPont claims, the [OSCURATO:PERSONA] finding in paragraphs 78 and 79 of the judgment under appeal relating to the single nature of the undertaking in the light of competition law, is not incompatible with the EC [OSCURATO:PERSONA], and therefore does not lead to a misleading and inconsistent application of competition law. 54 It follows that the first ground relied on by EI DuPont in support of its appeal must be rejected as unfounded. The second ground of appeal: error of law committed by the [OSCURATO:PERSONA] in that it held that the [OSCURATO:PERSONA] was not prevented, on account of the limitation period, from imposing fines on EI DuPont for the period from 13 May 1993 to 1 April 1996 [OSCURATO:PERSONA] of the parties 55 EI DuPont claims that, in the absence of any proof that the DuPont group was involved in the cartel after the activities relating to CR were transferred to DDE, the infringement committed by undertakings within that group ended on 1 April 1996; therefore, on account of the limitation period, the [OSCURATO:PERSONA] could not impose a fine on EI DuPont. It would be contrary to the principal of legal certainty if the five-year limitation period, under [OSCURATO:PERSONA] (EEC) No 2988/74 of 26 November 1974 concerning limitation periods in proceedings and the enforcement of sanctions under the rules of the [OSCURATO:PERSONA] relating to transport and competition (OJ 1974 L 319, p. 1), were not allowed to run in its favour. 56 [OSCURATO:PERSONA] contends that that ground is inadmissible, by arguing in particular that it is based on arguments already raised before the [OSCURATO:PERSONA]. It considers that, in any event, the ground must be rejected as manifestly unfounded. Findings of the [OSCURATO:PERSONA] 57 It must be stated at the outset that the plea of inadmissibility raised by the [OSCURATO:PERSONA] in relation to the second ground relied on by EI DuPont in support of its appeal, alleging that EI DuPont merely reproduced the arguments put before the [OSCURATO:PERSONA], cannot be upheld. 58 In that regard it must be noted that, where a party challenges the interpretation or application of [OSCURATO:PERSONA] law by the [OSCURATO:PERSONA], the points of law examined at first instance may be discussed again in the course of an appeal. Indeed, if a party could not base its appeal on pleas in law and arguments already relied on before the [OSCURATO:PERSONA], an appeal would be deprived of part of its purpose ([OSCURATO:PERSONA]234/02 P [OSCURATO:PERSONA] v Lamberts [2004] ECR I‑2803, paragraph 75, and [OSCURATO:PERSONA]514/07 P, C-528/07 P and C-532/07 P Sweden and Others v API and [OSCURATO:PERSONA] [2010] ECR I-8533, paragraph 116). 59 With regard to the substance, it must be pointed out that that ground of appeal is based on the assumption that the first ground of appeal would be upheld in the absence of any proof that the DuPont group was involved in the cartel during the DDE period. However, it is clear from the analysis of the first ground of appeal that the reasoning followed by the [OSCURATO:PERSONA] in paragraphs 64 to 83 of the judgment under appeal is not vitiated by any error of law. 60 Consequently, the [OSCURATO:PERSONA] did not err in law by holding in paragraph 87 of the judgment under appeal that the limitation period had not expired when the [OSCURATO:PERSONA] imposed the fine on EI DuPont. 61 The second ground relied on by EI DuPont in support of its appeal must therefore be rejected as unfounded. The third ground of appeal: error of law committed by the [OSCURATO:PERSONA] in that it did not find that the [OSCURATO:PERSONA] had failed to demonstrate that it had a legitimate interest in taking a decision against EI DuPont [OSCURATO:PERSONA] of the parties 62 EI DuPont alleges that the [OSCURATO:PERSONA] disregarded the case-law resulting from the judgment in [OSCURATO:PERSONA] T‑22/02 and T‑23/02 [OSCURATO:PERSONA] and [OSCURATO:PERSONA] v [OSCURATO:PERSONA] [2005] [OSCURATO:PERSONA]‑4065. In that regard, EI DuPont claims that the [OSCURATO:PERSONA] failed to demonstrate its legitimate interest in adopting a decision against a participant in a cartel because the right to impose a fine on it was time-barred. 63 [OSCURATO:PERSONA] contends that the third ground of appeal is inadmissible as it does not specifically identify the error of law with which the judgment under appeal is vitiated and merely reproduces the pleas and arguments that were already raised before the [OSCURATO:PERSONA]. In any event, it submits that the ground of appeal should be rejected as manifestly unfounded. Findings of the [OSCURATO:PERSONA] 64 As regards the admissibility of the third ground of appeal, it must be pointed out that, as is clear from the settled case-law of the [OSCURATO:PERSONA] of Justice cited in paragraph 58 above, this ground must be declared admissible because, through it, EI DuPont alleges that the [OSCURATO:PERSONA] incorrectly interpreted [OSCURATO:PERSONA] law. 65 With regard to the substance, the third ground is also based on the assumption that the first and second grounds relied on in support of this appeal would be upheld. It amounts to a claim that, since the [OSCURATO:PERSONA] could not impose a fine on EI DuPont on account of the limitation period, it had to demonstrate a legitimate interest in adopting a decision against EI DuPont. 66 Since the first and second grounds of appeal have been rejected, it necessarily follows that the third ground of appeal must be rejected as unfounded. 67 As none of the grounds relied on by EI DuPont in support of its appeal can be upheld, the appeal must be dismissed in its entirety. Costs 68 In accordance with the first paragraph of [OSCURATO:PERSONA] 184(2) of the Rules of Procedure, where the appeal is unfounded, the [OSCURATO:PERSONA] of Justice shall make a decision as to costs. [OSCURATO:PERSONA] 138(1) of those Rules, which apply to the procedure on appeal by virtue of [OSCURATO:PERSONA] 184(1) of those Rules, the unsuccessful party shall be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the [OSCURATO:PERSONA] has applied for costs against EI DuPont, and the latter has been unsuccessful, EI DuPont must be ordered to pay the costs. On those grounds, the [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby: 1. Dismisses the appeal; 2. Orders EI du Pont de Nemours and [OSCURATO:PERSONA] to pay the costs. [Signatures] * Language of the case: English.