JUDGMENT OF THE GENERAL COURT (Seventh Chamber)
2 February 2012 (*)
(Competition – Agreements, decisions and concerted practices – Market for chloroprene rubber – Decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement – Price-fixing – Market-sharing – Imputability of the unlawful conduct – Joint venture – Guidelines on the method of setting fines – Mitigating circumstances – Cooperation)
In Case T‑76/08,
EI du Pont de Nemours and Company, established in Wilmington, Delaware (United States),
DuPont Performance Elastomers LLC, established in Wilmington,
DuPont Performance Elastomers SA, established in Le Grand-Saconnex (Switzerland),
represented by J. Boyce and A. Lyle-Smythe, Solicitors,
applicants,
v
European Commission, represented initially by X. Lewis and V. Bottka, subsequently by V. Bottka and V. Di Bucci, and lastly by V. Bottka, S. Noë and A. Biolan, acting as Agents,
defendant,
APPLICATION for, first, annulment of Articles 1 and 2 of Commission Decision C(2007) 5910 final of 5 December 2007 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/38629 – Chloroprene Rubber), as amended by Commission Decision C(2008) 2974 final of 23 June 2008, in that they refer to EI du Pont de Nemours and Company and, second, a reduction in the amount of the fine imposed jointly and severally on the applicants by that decision,
THE GENERAL COURT (Seventh Chamber),
composed of A. Dittrich, President, I. Wiszniewska-Białecka (Rapporteur) and M. Prek, Judges,
Registrar: K. Pocheć, Administrator,
having regard to the written procedure and further to the hearing on 9 February 2011,
gives the following
Judgment
Background to the dispute
The applicants and the product concerned
1        The applicants, EI du Pont de Nemours and Company (‘EI DuPont’), DuPont Performance Elastomers LLC (‘DPE LLC’) and DuPont Performance Elastomers SA (‘DPE SA’) brought the present action against Commission Decision C(2007) 5910 final of 5 December 2007 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/38629 – Chloroprene Rubber) (‘the decision of 5 December 2007’), as amended by Commission Decision C(2008) 2974 final of 23 June 2008 (‘the amending decision of 23 June 2008’). The decision of 5 December 2007 as amended by the amending decision of 23 June 2008 will be referred to as ‘the contested decision’.
2        EI DuPont, the ultimate parent company of the DuPont group, is a quoted company with its headquarters in Wilmington (United States). DPE LLC is a wholly-owned subsidiary of EI DuPont and DPE SA is a wholly-owned subsidiary of DPE LLC. EI DuPont was the first undertaking to develop chloroprene rubber (‘CR’). It remained active on the CR market from 1931 until 1 April 1996, when it transferred all its activities in the elastomers sector to DuPont Dow Elastomers LLC (‘DDE’), a joint venture held in equal shares by EI DuPont and The Dow Chemical Company (‘Dow’). On 1 July 2005 EI DuPont acquired the 50% share held by Dow in DDE. DDE then ceased to be a joint venture and was renamed DPE LLC, becoming a wholly-owned subsidiary of EI DuPont. DPE LLC’s regional office for Europe is DPE SA, a wholly-owned subsidiary of DPE LLC (see recitals 29, 31 to 36 and 40 of the contested decision).
3        CR is a synthetic rubber which is an artificially-made polymer acting as an elastomer. It is used mainly in the manufacture of technical rubber parts, such as cables, hoses or power transmission belts, in the manufacture of adhesives, in particular for the shoe and furniture industries, such as soles, heels and coated fabrics, and in the manufacture of latex for diving equipment, bitumen modifications and the inner soles of shoes (see recitals 7 to 11 of the contested decision).
4        The other undertakings to which the contested decision was addressed are: Bayer AG, Denki Kagaku Kogyo KK, Denka Chemicals GmbH, ENI SpA, Polimeri Europa SpA, Tosoh Corp., Tosoh Europe BV and Dow.
The procedure before the Commission
5        On 18 December 2002 Bayer informed the Commission of the European Communities [confidential] (1) and expressed its willingness to cooperate with the Commission under the terms of the Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3; ‘the 2002 Leniency Notice’). By decision of 27 January 2003 the Commission granted Bayer conditional immunity from fines (see recital 60 of the contested decision).
6        Following the communication of information from Bayer, the Commission carried out unannounced inspections at the premises of Dow Deutschland Inc. on 27 March 2003 and at the premises of Denka Chemicals on 9 July 2003 (see recitals 61 and 62 of the contested decision).
7        On 15 July and on 21 November 2003 respectively, Tosoh Corp., Tosoh Europe and DDE applied for leniency in accordance with the 2002 Leniency Notice.
8        In March 2005 the Commission sent the first requests for information to the addressees of the contested decision, pursuant to Article 18 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1).
9        By letters of 7 March 2007 the Commission informed Tosoh Corp., Tosoh Europe and DDE that it had reached the provisional conclusion that the evidence which they had submitted presented significant added value within the meaning of point 22 of the 2002 Leniency Notice and that it therefore intended to apply a reduction to the amount of the fine to be imposed on them within one of the bands referred to in the first paragraph of point 23(b) of that notice, namely a reduction of 30 to 50% for Tosoh Corp. and Tosoh Europe and a reduction of 20 to 30% for DDE (see recitals 63 to 66 of the contested decision).
10      On 13 March 2007 the Commission initiated the procedure and adopted a statement of objections concerning an infringement of Article 81 EC and Article 53 of the Agreement on the European Economic Area (‘the EEA Agreement’), addressed to 12 undertakings, including the applicants. All the addressees of the statement of objections submitted observations in writing in response to the objections raised by the Commission and exercised their right to be heard, at a hearing which took place on 21 June 2007 (see recitals 68 to 72 of the contested decision).
The contested decision
11      In the amending decision of 23 June 2008, addressed solely to EI DuPont, DPE LLC, DPE SA and Dow, the Commission explained inter alia that it had made a factual mistake in the decision of 5 December 2007.
12      It follows from the decision of 5 December 2007 that between 1993 and 2002 several producers of CR participated in a single and continuous infringement of Article 81 EC and Article 53 of the EEA Agreement, covering the entire territory of the European Economic Area (EEA), consisting of agreements and concerted practices concerning 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 (recitals 2, 3 and 81 to 122 of the contested decision). Those producers met on a regular basis several times a year, in multilateral, trilateral and bilateral meetings (see recitals 94 to 116 of the contested decision).
13      According to Articles 1 to 3 of the decision of 5 December 2007:
‘Article 1
The following undertakings have infringed Article 81 [EC] and – from 1 January 1994 – Article 53 of the EEA Agreement by participating, for the periods indicated, in a single and continuing agreement and/or concerted practice in the [CR] sector:
(a)      Bayer …: from 13 May 1993 to 13 May 2002;
(b)      [EI DuPont]: from 13 May 1993 to 13 May 2002; [DPE] SA, [DPE] LLC and [Dow]: from 1 April 1996 to 13 May 2002;
(c)      Denki Kagaku Kogyo … and Denka Chemicals …: from 13 May 1993 to 13 May 2002;
(d)      ENI … and Polimeri Europa …: from 13 May 1993 to 13 May 2002;
(e)      Tosoh Corp[.] and Tosoh Europe …: from 13 May 1993 to 13 May 2002.
Article 2
For the infringement referred to in Article 1, the following fines are imposed:
(a)      Bayer …:                        EUR 0;
(b)      [EI DuPont]:                  EUR 59 250 000; of which jointly and severally with
(i) [DPE] SA:            EUR 44 250 000 and
(ii) [DPE] LLC:            EUR 44 250 000 and
(iii) [Dow]:            EUR 48 675 000;
(c)      Denki Kagaku Kogyo … and Denka Chemicals …: jointly and severally EUR 47 000 000;
(d)      ENI … and Polimeri Europa …, jointly and severally: EUR 132 160 000;
(e)      Tosoh Corp[.] and Tosoh Europe …, jointly and severally: EUR 4 800 000
…
Article 3
The undertakings listed in Article 1 shall immediately bring to an end the infringements referred to in that Article in so far as they have not already done so.
They shall refrain from repeating any act or conduct described in Article 1, and from any act or conduct having the same or similar object or effect.’
14      In determining the basic amount of the fines, the Commission relied on its Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation (EC) No 1/2003 (OJ 2006 C 210, p. 2; ‘the 2006 Guidelines’). It took into account a proportion of the value of the sales of CR made by each undertaking within the EEA during the 2001 calendar year, the last full year of participation in the infringement, multiplied by the number of years of infringement (see recitals 521 and 523 of the contested decision).
15      In order to determine the proportion of the value of sales to be taken into account, the Commission considered that the horizontal market-sharing and price-fixing were by their very nature among the most serious restrictions of competition. In that regard, the Commission 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 (see recitals 525 and 526 of the contested decision).
16      The Commission decided that the proportion of the value of sales of each undertaking involved to be taken into account for the purpose of establishing the basic amount of the fine to be imposed was 21% (see recital 535 of the contested decision).
17      As the participation in the infringement had lasted for nine years for EI DuPont, Bayer, Denka Kagaku Kogyo and Denka Chemicals (together, ‘Denka’), ENI and Polimeri Europa (together, ‘EniChem’) and Tosoh Corp. and Tosoh Europe (together, ‘Tosoh’), and for six years and one month for DPE LLC, DPE SA and Dow, the Commission, in application of point 24 of the 2006 Guidelines, multiplied the starting amounts of the fines determined by reference to the value of sales by 9 for EI DuPont, Bayer, Denka, EniChem and Tosoh and by 6.5 for DPE LLC, DPE SA and Dow (see recital 536 of the contested decision).
18      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 at paragraph 14 above, the Commission, in application of point 25 of the 2006 Guidelines, included in the basic amount of the fines an additional amount of 20% of the value of sales (see recital 537 of the contested decision).
19      Furthermore, the Commission 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 1 April 1996 to 13 May 2002 (see recitals 420 to 440 of the contested decision). In addition, since, after the infringement had ceased, DPE LLC and DPE SA resumed DDE’s activities on the CR market, the Commission considered that, as the successors to DDE, DPE LLC and DPE SA should also be held jointly and severally liable for DDE’s conduct between 1 April 1996 and 13 May 2002 (see recitals 441 and 442 of the contested decision).
20      In the light of those factors, the basic amount of the fine to be imposed on EI DuPont was fixed at EUR 79 million, 59 million of which was to be paid jointly and severally with DPE LLC, DPE SA and Dow (see recital 539 of the contested decision).
21      As regards the adjustments to the basic amounts of the fines for, first, aggravating circumstances, no increase was applied to the fine to be imposed on the applicants, since no aggravating circumstance was found to exist in their case. Conversely, on account of the aggravating circumstance of repeated infringement, the Commission increased the basic amount of the fine set for EniChem by 60% and the basic amount of the fine set for Bayer by 50% (see recitals 540 to 542 of the contested decision). Second, no reduction was granted for the mitigating circumstances referred to in point 29 of the 2006 Guidelines, as the Commission rejected all the applications for a reduction which had been submitted on that basis (see recitals 543 to 582 of the contested decision).
22      The Commission then applied a specific increase to the fines of certain addressees of the contested decision in order to ensure that the fines would have a sufficiently deterrent effect, taking account for that purpose of those undertakings’ turnovers beyond the goods and services to which the infringement related. No specific increase was applied to the basic amount of the applicants’ fine, but, conversely, the basic amount of the fine to be imposed on EniChem was multiplied by 1.4 and the basic amount of the fine to be imposed on Dow was multiplied by 1.1 (see recitals 583 to 586 of the contested decision).
23      Accordingly, the basic amount of the fine to be imposed on EI DuPont was fixed at EUR 79 million, of which 59 million was to be paid jointly and severally with DPE LLC and DPE SA and 64.9 million jointly and severally with Dow (see recital 587 of the contested decision).
24      As regards the application of the 2002 Leniency Notice, the Commission granted a 100% reduction in the basic amount of the fine to Bayer, 50% to Tosoh and 25% to EI DuPont, DPE LLC, DPE SA and Dow (see recitals 591 to 638 of the contested decision).
25      The amount of the fine imposed on EI DuPont was thus fixed at EUR 59.25 million, of which 44.25 million jointly and severally with DPE LLC and DPE SA and 48.675 million jointly and severally with Dow (see recital 655 of the contested decision).
26      After giving the undertakings concerned the opportunity to submit their comments, the Commission adopted the amending decision of 23 June 2008 (see paragraph 11 above). Under 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. That decision also states that the Commission realised that it had made a factual error in the calculation of the amount of the fine to be paid by EI DuPont, since that amount was the result of the application of the multiplier of 10% for deterrence to only Dow’s fine.
27      The amending decision of 23 June 2008 contains, in particular, the following provision:
‘Article 1
In Article 2 of [the decision of 5 November 2007], the first paragraph is amended as follows:
(1)      point (b) is replaced by the following:
(b)      [EI DuPont]: EUR 59 250 000;
of which jointly and severally with
(i) [DPE] SA for EUR 44 250 000 and
(ii) [DPE] LLC for EUR 44 250 000 and
(iii) [Dow] for EUR 44 250 000;
(2)      the following point (f) is added:
(f)      [Dow]:      EUR 4 425 000.’
Procedure and forms of order sought by the parties
28      By application lodged at the Court Registry on 15 February 2008 the applicants brought the present action.
29      Acting upon a report of the Judge-Rapporteur, the Court (Seventh Chamber) decided to open the oral procedure and, by way of the measures of organisation of procedure provided for in Article 64 of its Rules of Procedure, requested the Commission to produce certain documents and put written questions to it. The Commission complied with that request within the period prescribed.
30      The parties presented oral argument and their answers to the questions put by the Court at the hearing on 9 February 2011.
31      In the application the applicants claim that the Court should:
–        annul Article 1(b) of the decision of 5 December 2007 in that it finds that EI DuPont participated in the infringement;
–        annul Article 2(b) of the decision of 5 December 2007 in that it requires that EI DuPont pay a fine;
–        reduce the amount of the fine imposed on the applicants under Article 2(b) of the decision of 5 December 2007;
–        order the Commission to pay the costs.
32      In the reply, the applicants state that, ‘[t]o the extent relevant, the application and [the] reply – in particular the request for partial annulment – also apply to the decision [of 5 December 2007] as amended by [the] amending decision [of 23 June 2008]’.
33      The Commission contends that the Court should:
–        dismiss the application;
–        order the applicants to pay the costs.
Law
34      As a preliminary point, it must be borne in mind that when, during the proceedings, one decision is replaced by another having the same subject-matter, this must be considered a new factor allowing the applicant to adapt its pleas in law and claims for relief. It would indeed be contrary to the due administration of justice and the requirements of procedural economy to oblige the applicant to make a fresh application (see Case T‑318/01 Othman v Council and Commission [2009] ECR II‑1627, and the case-law cited). The same must apply where, during the proceedings, the institution that adopted the act which is the subject of the action makes amendments to that act aimed at replacing it partially without changing its subject-matter.
35      In the present case, it is therefore appropriate to allow the applicants’ request and to allow them to reformulate their claims, pleas in law and arguments in the light of the Commission’s amendments to the decision of 5 December 2007. Accordingly, their action should be regarded as seeking annulment of Articles 1 and 2 of the contested decision, in so far as those articles refer to EI DuPont, and as seeking the reduction of the fine imposed on the applicants by the decision of 5 December 2007, as set by the amending decision of 23 June 2008.
36      In support of their action, the applicants rely on six pleas in law. They allege (i) incorrect imputation of the infringement to EI DuPont during the period 1 April 1996 to 13 May 2002; (ii) breach of the rules on limitation; (iii) lack of a legitimate interest on the Commission’s part in addressing a decision to EI DuPont; (iv) incorrect and unsubstantiated characterisation of certain elements as forming part of the cartel; (v) incorrect determination of the amount of the fine imposed on the applicants; and (vi) manifest error of assessment of the facts and failure to state reasons in that the Commission concluded that a member of DDE’s staff, Mr A., had participated in the infringement.
First plea: incorrect imputation of the infringement to EI DuPont during the period 1 April 1996 to 13 May 2002
Wording of the contested decision
37      In recital 31 of the contested decision, the Commission found that DDE had been set up in accordance with a Formation Agreement, signed on 16 January 1996, and a Limited Liability Company Agreement (‘the LLC Agreement’) between Dow, EI DuPont, Wenben Inc. and DuPont Elastomers Inc. The latter two companies were the parent companies of DDE and wholly-owned subsidiaries of Dow and EI DuPont respectively, and each held, by virtue of the LLC Agreement, 50% of the shares in DDE.
38      In recitals 420 and 421 of the contested decision, the Commission considered that as the parent companies of DDE, EI DuPont and Dow should be held jointly and severally liable for the conduct of DDE during the period from 1 April 1996 to 13 May 2002, since ‘objective factors demonstrat[ed] that DDE did not enjoy an autonomous position but … that Dow and [EI] DuPont exercised decisive influence on the commercial conduct and policies of the joint venture on an equal footing’.
39      First of all, in recital 422 of the contested decision, the Commission found that ‘the responsibilities of the Members Committee and its composition with high level executives from the parent companies as representatives show that the power to influence the general market behaviour of DDE lay in the hands of the parent companies’. In recitals 423 to 425 of the contested decision, the Commission substantiated that finding as follows:
‘(423) The parent companies set up a “Members Committee” in order to supervise the business of DDE and to approve certain matters pertaining to the strategic direction of DDE. Notably the Members Committee had powers to set the overall policy and vision of DDE, to approve the business and strategic plans and the annual operating plans of DDE, to elect or appoint the officers of DDE, to determine the banking policy of DDE and to approve all capital expenditure and borrowing by DDE above certain levels (Sections 7.4. and 9.1 of the LLC Agreement). In addition, the Members Committee had the power to amend the business scope, to liquidate or otherwise dissolve DDE or to approve the merger or consolidation of DDE (Section 6.1. of the LLC Agreement). Those tasks were expressly reserved for the exclusive authority of the Members Committee. In general, the parent companies also had the right to delegate any powers and authority required for the management of the company to the Members Committee.
(424) [EI] DuPont and Dow each had the right to appoint an equal number of Member Representatives to the Members Committee. The decisions of the Members Committee were taken unanimously, with each shareholder having an absolute right of veto. Accordingly, neither shareholder was individually able to exercise decisive influence over DDE …
(425) The representatives of the Members Committee were not employees of DDE, but of [EI] DuPont and Dow respectively. The representatives of both Dow and [EI] DuPont came from the senior executive level … The lack of an independent “board of directors with external representatives” was also a factor in the Court of Justice’s reasoning in [Case C‑286/98 P] Stora Kopparbergs Bergslags v Commission [[2000] ECR I‑9925] to reject the claim of autonomous action by the subsidiary …’
40      Next, in recitals 426 and 427 of the contested decision, the Commission stated that the Members’ Committee ‘had the right to appoint the officers of DDE, [who were] responsible for the day-to-day business affairs, subject to the overall direction and control of the Members Committee (Section 9.1. of the LLC Agreement)’, that ‘[t]he persons chosen for the top management posts in DDE came from a high management level within the respective parent companies, Dow and [EI] DuPont’ and that ‘[e]ntrusting individuals with consecutive positions in the parent companies and the joint venture constitutes a classic mechanism to keep information flow and coherence within the members of the group (in this case between the joint venture and the parents) and guarantees predictability of management and on policy aspects’.
41      Lastly, in recital 428 of the contested decision, the Commission stated that ‘[EI] DuPont, as a participant in the cartel until the transfer of its CR activity into DDE, was fully aware of the existence of the cartel and must have been aware of the participation of DDE in the cartel’, that ‘[p]resumably Dow must also have been aware of the existence of the cartel’ and that ‘[t]his [was] an additional factor demonstrating that [EI] DuPont and Dow [had] exercised a decisive influence on DDE’s behaviour’.
42      In recital 432 of the contested decision, the Commission found that the joint management power of EI DuPont and Dow with respect to the commercial conduct and policy of DDE and the fact that those parent companies exercised that power on an equal footing was demonstrated on the basis of the LLC Agreement and that, accordingly, the finding that both parent companies were liable was in line with the judgment in Case T‑314/01 Avebe v Commission [2006] ECR II‑3085, ‘Avebe’. The Commission added, in recital 434 of the contested decision, that, ‘[i]n the case of a joint venture it is possible to find that the joint venture and parents together form an economic unit for the purposes of the application of Article 81 [EC] if the joint venture has not decided independently upon its own conduct on the market’.
43      On the basis of the foregoing, the Commission found, in recital 442 of the contested decision, that ‘Dow, [EI] DuPont, DPE [LLC] and DPE SA should be held jointly and severally liable for DDE’s conduct from 1 April 1996 to 13 May 2002’.
Arguments of the parties
44      The applicants claim that EI DuPont cannot be considered to have participated in the cartel during the period 1 April 1996 to 13 May 2002 (‘the DDE period’) and be held jointly and severally liable for DDE’s participation in that cartel during that period. The Commission made manifest errors of assessment of the facts and errors of law. In particular, it did not prove that EI DuPont had exercised decisive influence over DDE.
45      The applicants observe that before 1 April 1996 EI DuPont’s activity on the CR market was carried out by certain of its wholly-owned subsidiaries, but that on 1 April 1996 EI DuPont formed with Dow a full-function joint venture, namely DDE, to which it transferred its entire elastomers business, including its business on the CR market. DDE existed until 30 June 2005. Thus, during the period 1 April 1996 to 30 June 2005 EI DuPont’s sole interests in elastomers were its 50% shareholding in the DDE joint venture and, for a short period, a 50% shareholding in DuPont-Showa Denko (‘DSD’), a full-function joint venture formed with Showa Denko and active in the production and supply of CR in Japan. EI DuPont’s 50% shareholding in DSD was transferred to DDE in March 1997 and Showa Denko acquired sole control of DSD in November 2002. It was not until 1 July 2005 that EI DuPont acquired the 50% share held by Dow in DDE and conducted the CR activity through its wholly-owned subsidiaries, DPE LLC and DPE SA.
46      In so far as DDE, as a full-function joint venture – the formation of which in 1996 and the break-up of which in 2005 were approved by the Commission – operated autonomously of its parent companies, it was an undertaking that was economically, structurally and legally distinct from its parent companies (and not a single economic entity enjoying operational autonomy). Neither EI DuPont nor Dow had sole control of DDE during the DDE period; as a result three separate undertakings existed during that period, namely DDE and its two parents. Furthermore, after the formation of DDE, there were no exchanges of information between DDE and EI DuPont enabling liability for the infringement committed by DDE to be imputed to EI DuPont. Nor was the DuPont group aware of the existence of a cartel.
47      The applicants refer to the case-law and assert that it is for the Commission to establish that a subsidiary did not act autonomously, by demonstrating that the parent company actually exercised decisive influence over the subsidiary at the time of the infringement. In particular, they observe that in Case T‑112/05 Akzo Nobel and Others v Commission [2007] ECR II‑5049 (‘the General Court’s judgment in Akzo Nobel’), paragraph 58, this Court stated that it is the fact that the parent company and the subsidiary constitute a single undertaking that enables the Commission to address the decision imposing fines to the parent company. The applicants infer that the level of joint control that the parent companies of a full-function joint venture are able to exercise jointly over such an undertaking is not sufficient to establish the actual existence of decisive influence that is necessary in order for the unlawful conduct of a joint venture to be imputed to one or other – or both – of the parent companies.
48      The presumption that a parent company holding 100% of the capital of a subsidiary which has engaged in unlawful conduct exercises decisive influence over the conduct of that subsidiary does not apply in the present case. Even if the principle that liability for the conduct of a subsidiary can be imputed to its parent company could be extended to situations in which a parent company has a majority, but less than 100%, shareholding in a subsidiary, on the ground that the parent company and the subsidiary constitute one and the same undertaking, there would be no ground for permitting such a principle to be extended to situations in which a full-function joint venture is not part of the same undertaking as one or the other of its parent companies. Nor can the fact that the parent companies jointly exercise decisive influence over the business strategy of a joint venture be the test for determining that liability for the participation of such a joint venture in a cartel can be imputed to the parent companies.
49      Everything indicates that in the present case DDE acted autonomously on the market. Moreover, in the absence of any other indication of individual responsibility on the part of one of the parent companies for the cartel in question, liability for the participation of their joint venture in that cartel cannot be imputed to the parent companies.
50      In a case such as this, there exists a presumption that a full-function joint venture acts autonomously and that any unlawful conduct on its part is not imputable to its parent companies. It is for the Commission to rebut that presumption by adducing evidence capable of showing that one or other of the parent companies was actually ‘implicated’ in the unlawful conduct.
51      The applicants observe that the Commission dismissed that argument in the contested decision, referring to its old Notice on the concept of full-function joint ventures within the meaning of Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings (corrected version OJ 1990 L 257, p. 13, amended by Council Regulation (EC) No 1310/97 of 30 June 1997 (OJ 1997 L 180, p. 1)). However, that notice is not relevant. Furthermore, the Commission erred in law in asserting that a full-function joint venture is similar in nature to a normal subsidiary having a separate legal personality. In that regard, the applicants claim that the present case can be distinguished from the facts of Avebe, paragraph 42 above, where, inter alia, the joint venture Glucona did not have separate legal personality from that of its parent companies. Commission Decision C(2006) 6762 final of 24 January 2007 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F/38.899 – Gas insulated switchgear) (‘the Gas insulated switchgear decision’) is equally irrelevant. Furthermore, neither EI DuPont nor Dow had sole control of DDE and the exercise of joint control for the purposes of the application of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ 2004 L 24, p. 1) does not imply that a parent company is liable for the purposes of Article 81 EC for the conduct of the joint venture. Nor is the lack of disagreement between EI DuPont and Dow relevant for the purpose of establishing their liability under Article 81 EC. The Commission ignored the fundamental significance of the concept of full-functionality.
52      In support of their argument that, in substance, a full-function joint venture is necessarily a separate undertaking and cannot form one and the same undertaking with the parent companies for the purposes of the imputation of liability for an infringement of Article 81 EC, the applicants refer to Commission Decision 2006/902/EC of 21 December 2005 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement against Flexsys NV, Bayer AG, Crompton Manufacturing Company Inc. (former Uniroyal Chemical Company Inc.), Crompton Europe Ltd, Chemtura Corp. (former Crompton Corp.), General Química SA, Repsol Química SA and Repsol YPF SA. (Case No COMP/F/C.38.443 — Rubber chemicals) (OJ 2006 L 353, p. 50) (‘the Rubber chemicals decision’). In that case the Commission recognised that a full-function joint venture could be presumed to be autonomous from its parent companies. The applicants take issue with the Commission for having failed to explain its reasons for departing from its conclusions in that decision, the facts of which were virtually identical to those of the present case, and for having intended to use the principles laid down in Avebe, paragraph 42 above. That constitutes a breach of the obligation to state reasons and is contrary to the principles of legal certainty, non-discrimination and the protection of legitimate expectations. There is nothing in the case-law on Article 81 EC to support the conclusions reached by the Commission. As the Commission departed from the case-law and arrived at a wholly new conclusion, it was under an obligation to put forward convincing and cogent evidence for doing so: yet it failed to adduce such evidence.
53      In particular, the Commission made a manifest error of assessment and an error of law in considering that, via the Members’ Committee, which was the committee for the supervision of DDE, and whose role was to approve certain aspects of DDE’s strategic direction and general policy and to appoint its officers, EI DuPont and Dow exercised decisive influence of the type required for liability for an infringement of Article 81 EC to be imputed to them.
54      Lastly, the applicants contend that after DDE was formed the DuPont group was unaware of the existence of a cartel. There is no evidence to suggest that either of DDE’s parent companies was aware of the collusive activities during the DDE period. The Commission merely asserts that, as a participant in the cartel in question until the transfer of its activity on the CR market to DDE, EI DuPont was not unaware of the existence of the cartel and must have been aware of DDE’s participation therein. Such an assertion constitutes lack of reasoning and shows that the Commission failed to take into account the arguments presented in the response to the statement of objections. In that regard, the applicants claim that the DuPont group employees who were aware of the collusive activities had all been transferred with the CR activity, so that no ‘corporate memory’ of the cartel had been retained within the DuPont group. That conclusion is confirmed by the findings of a thorough internal investigation conducted by an external consultant and by the statements of two former members representing the Members’ Committee, all of which were annexed to the response to the statement of objections.
55      The Commission also failed to fulfil its obligation to state reasons for its conclusion as to the role of the Members’ Committee in the decision to close one of DDE’s CR production facilities. In the absence of evidence that the Members’ Committee had any knowledge of the cartel, the Commission was not entitled, without providing reasons, to conclude at recital 438 of the contested decision that it ‘[was] highly unlikely that the Members Committee would have discussed … the plant closure … without any reference to the cartel and the agreements concluded [within the cartel]’.
56      That assertion also illustrates the Commission’s failure to respect the applicants’ rights of defence, since it rejects the findings of the internal investigation referred to in paragraph 54 above, although the credibility of that investigation is not in doubt. In particular, the Commission failed to take account of the fact that the leniency application was submitted by DDE and that it is therefore logical that such an application should relate to the DDE period and not the preceding period.
57      The Commission disputes all the applicants’ arguments and contends that the first plea should be rejected. In particular, the Commission submits that it did not apply in the present case a presumption of the exercise of decisive influence and that it demonstrated on the basis of objective factors that EI DuPont had actually exercised decisive influence over the joint venture that EI DuPont controlled jointly with Dow.
Findings of the Court
58      According to settled case-law, the term ‘undertaking’ must be understood in competition law as designating an economic unit for the purpose of the subject-matter of the agreement in question even if, in law, that economic unit consists of several persons, natural or legal (Case 170/83 Hydrotherm Gerätebau [1984] ECR 2999, paragraph 11, and Case C‑97/08 P Akzo Nobel and Others v Commission [2009] ECR I‑8237, ‘the judgment of the Court of Justice in Akzo Nobel’, paragraph 55). For the purposes of applying the competition rules, formal separation of two companies resulting from their having distinct legal identity is not decisive. The test is whether or not there is unity in their conduct on the market. Thus, it may prove necessary to establish whether two companies that have distinct legal identities form, or fall within, one and the same undertaking or economic entity adopting the same course of conduct on the market (Case T‑325/01 DaimlerChrysler v Commission [2005] ECR II‑3319, paragraph 85 and the case-law cited). The General Court has therefore held that Article 81(1) EC is aimed at economic entities which consist of a unitary organisation of personal, tangible and intangible elements which pursues a specific economic aim on a long-term basis and can contribute to the commission of an infringement of the kind referred to in that provision (Case T‑11/89 Shell v Commission [1992] ECR II‑757, paragraph 311; see, also, the General Court’s judgment in Akzo Nobel, paragraph 47 above, paragraph 57 and the case-law cited).
59      Where such an economic entity infringes the rules of competition, it falls to that entity, in accordance with the principle of personal responsibility, to answer for that infringement. However, the infringement of European Union competition law must be imputed unequivocally to a legal person on whom fines may be imposed. It is clear from settled case-law that the conduct of a subsidiary may be imputed to the parent company in particular where that subsidiary, despite having a separate legal personality, does not decide independently upon 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. That is the case because, in such a situation, the parent company and its subsidiary form a single economic unit and therefore form a single undertaking for the purposes of Article 81 EC, which enables the Commission to address a decision imposing fines to the parent company, without having to establish the personal involvement of the latter in the infringement (see, to that effect, the judgment of the Court of Justice in Akzo Nobel and Others v Commission, paragraph 58 above, paragraphs 56 to 59 and the case-law cited).
60      In order to be able to impute the conduct of a subsidiary to a parent company, the Commission 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, Case 107/82 AEG-Telefunken v Commission [1983] ECR 3151, paragraph 50).
61      In that regard, it is, as a rule, for the Commission to demonstrate such decisive influence on the basis of factual evidence, including, in particular, any management power one of the undertakings may have over the other (see, to that effect, Avebe, paragraph 42 above, paragraph 136 and the case-law cited).
62      Advocate General Kokott observed in points 89 and 91 to 93 of her Opinion in Case C‑97/08 P Akzo Nobel, paragraph 58 above (ECR I‑8241), to which the Court of Justice refers expressly in paragraph 73 of that judgment, that, even if the examination of the autonomy of the subsidiary is carried out in the light of its commercial policy in the narrower sense, the decisive influence of the parent company does not necessarily have to result from specific instructions, guidelines or rights of co-determination in terms of pricing, production and sales activities or similar aspects essential to market conduct. Such instructions are merely a particularly clear indication of the existence of the parent company’s decisive influence over its subsidiary’s commercial policy. However, autonomy of the subsidiary cannot necessarily be inferred from their absence. A parent company may exercise decisive influence over its subsidiaries even when it does not make use of any actual rights of co-determination and refrains from giving any specific instructions or guidelines on individual elements of commercial policy. Thus, a single commercial policy within a group may also be inferred indirectly from the totality of the economic and legal links between the parent company and its subsidiaries. For example, the parent company’s influence over its subsidiaries as regards corporate strategy, operational policy, business plans, investment, capacity, provision of finance, human resources and legal matters may have indirect effects on the market conduct of the subsidiaries and of the whole group. In the end, the decisive factor is whether the parent company, by reason of the intensity of its influence, can direct the conduct of its subsidiary to such an extent that the two must be regarded as one economic unit.
63      It is in the light of those factors that the merits of the first plea must be analysed.
64      As a preliminary point, it should be noted that the applicants do not dispute that EI DuPont participated in a cartel in breach of Article 81 EC between 13 May 1993 and 31 March 1996. Similarly, they do not dispute either DDE’s participation in a cartel in breach of Article 81 EC between 1 April 1996 and 13 May 2002 or the imputation of that infringement to DPE LLC and DPE SA as the undertakings which succeeded DDE. However, they claim that the Commission was not entitled to impute to EI DuPont the infringement committed by DDE during the DDE period, because the Commission had not proved that EI DuPont exercised decisive influence over DDE.
65      In this respect, it should be borne in mind first of all that DDE was a joint venture held in equal shares by Dow and EI DuPont which had been created on the basis of the LLC Agreement.
66      Moreover, the Court would point out that, in the LLC Agreement, EI DuPont and Dow had set up a Members’ Committee in order to supervise the business of DDE and to approve certain matters pertaining to the strategic direction of DDE. Each of the parent companies had the right to appoint an equal number of representatives to the Members’ Committee, who were not employees of DDE, but of EI DuPont and Dow. The Members’ Committee had powers, inter alia, to appoint the board members and the officers of DDE, who were responsible for the day-to-day business affairs, subject to the overall direction and control of EI DuPont and Dow through the Members Committee, to dismiss the board members and officers of DDE at any time with or without reasons, to set the overall policy and vision of DDE, to approve the business and strategic plans and the annual operating plans of DDE, to determine the banking policy of DDE and to approve all capital expenditure and borrowing by DDE above certain levels. The decisions of the Members’ Committee were taken unanimously, with each shareholder having an absolute right of veto. Those elements are not disputed by the applicants. The fact that the shareholders held equal shares in DDE’s share capital and in the associated voting rights, as described above, meant that each of DDE’s parent companies could block the strategic business decisions of the joint venture. In order to ensure that the strategic business decisions of their joint venture were not thus blocked, EI DuPont and Dow were therefore required to cooperate permanently.
67      Moreover, it is apparent from the LLC Agreement that DDE’s parent companies were present on the CR market only through their joint venture. Under that agreement, DDE represented Dow and EI DuPont’s business interests within the ‘business purpose’ of the joint venture, defined as the discovery, development, design, manufacture, distribution, marketing and sale of elastomers, including CR, on a global basis. That agreement also provided for the transfer by Dow to DDE of certain technology and other assets and for the transfer by EI DuPont to DDE of its entire elastomers business, including CR, as well as the ancillary business records. Therefore, DDE produced and sold CR under the trade name Neoprene which belonged to EI DuPont. Moreover, the agreement in question specifically provided for the elimination of competition between DDE’s parent companies as regards the product within the ‘business purpose’ of that agreement. Net profits or losses of DDE were allocated in equal proportions to the two parent companies. Those elements are not disputed by the applicants.
68      Lastly, the concentration effected by EI DuPont and Dow by the creation of DDE was notified to the Commission, which approved it by decision of 21 February 1996 (Case IV/M.663 – DuPont/Dow). In approving that concentration, the Commission formally found that the parent companies had acquired joint control of DDE for the purposes of Article 3(1)(b) of Regulation No 4064/89 (now Article 3(1)(b) of Regulation No 139/2004), in force at the time of DDE’s creation.
69      It is apparent from Article 3(3) of Regulation No 4064/89 (now Article 3(2) of Regulation No 139/2004) that the concept of control must be understood as the possibility of exercising decisive influence over the activity of an undertaking, as a consequence of rights, contracts or any other means. The concept of joint control was clarified by the Commission in its Consolidated Jurisdictional Notice under Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings (OJ 2008 C 95, p. 1), adopted on the basis of the case-law of the General Court (Case T‑282/02 Cementbouw Handel & Industrie v Commission [2006] ECR II‑319, paragraphs 42, 52 and 67). According to paragraphs 62 and 63 of that notice:
‘Joint control exists where two or more undertakings or persons have the possibility of exercising decisive influence over another undertaking. Decisive influence in this sense normally means the power to block actions which determine the strategic commercial behaviour of an undertaking. Unlike sole control, which confers upon a specific shareholder the power to determine the strategic decisions in an undertaking, joint control is characterised by the possibility of a deadlock situation resulting from the power of two or more parent companies to reject proposed strategic decisions. It follows, therefore, that these shareholders must reach a common understanding in determining the commercial policy of the joint venture and that they are required to cooperate. As in the case of sole control, the acquisition of joint control can also be established on a de jure or de facto basis. There is joint control if the shareholders (the parent companies) must reach agreement on major decisions concerning the controlled undertaking (the joint venture).’
70      In order to demonstrate that DDE’s parent companies actually exercised decisive influence over DDE’s conduct on the CR market, the Commission relied, first of all, on the fact that the Members’ Committee, in exercising the powers reserved to it by the LLC Agreement, appointed to the top management posts in the joint venture persons from a high management level within the parent companies. Those appointments were made throughout the existence of the joint venture. As regards the applicants, it follows from recitals 30, 37 and 426 of the contested decision that Mr D., who was the general manager of the global elastomers division of EI DuPont between 1980 and 1995, was appointed DDE’s first CEO, from 1996 to 1998. Mr K., who was the European Business Manager for CR at EI DuPont, became DDE’s Vice-President for the same area and was appointed CEO of DDE in February 1999. Moreover, Mr F. who was, inter alia, European Regional Manager for Chlorinated Elastomers at EI DuPont between 1992 and 1996, was appointed Vice-President of DDE as of 1996. Similarly, it is apparent from recitals 37 and 426 of the contested decision that Mr P., who was the Director of Marketing at one of the companies of the Dow group, became Vice-President – Ethylene Elastomers between 1996 and 1999 and, subsequently, Vice-President Commercial between 1999 and 2000 and that Mr R., who was the general manager of the ‘France-Benelux’ region at Dow, was appointed President of the European Region at DDE in 1996. As is apparent from recitals 132, 137, 139, 143, 145, 146, 151, 158, 163, 168, 169, 173, 177, 188, 189, 192, 194, 195, 197, 199, 205, 206, 210, 215, 224, 225, 233, 234, 255, 256, 258, 260, 262, 263, 281, 288, 289, 291 and 303 of the contested decision, without being disputed by the applicants, those persons were systematically involved in the participation in, and organisation of, the anticompetitive meetings.
71      Next, in recital 438 of the contested decision, the Commission took into consideration the fact, which was not disputed by the applicants, that the Members’ Committee had agreed to the closure of a DDE CR production plant in Maydown (United Kingdom). Such a decision could not have been taken by the joint venture unless the parent companies, acting through the Members’ Committee, had given their agreement. That decision therefore also constitutes an indication that the parent companies exercised decisive influence over the conduct of the joint venture on the CR market.
72      Moreover, the Commission took into consideration all the clauses of the LLC Agreement, outlined in paragraph 66 above, which reserved to the Members’ Committee and, accordingly, to the parent companies, significant powers relating to the management of the joint venture (see recitals 422 to 426 and 432 of the contested decision). Given that, in the present case, DDE operated over a number of years and that the parent companies did not dispute that the LLC Agreement had been implemented in accordance with its clauses, the Commission did not err in taking the view that the Members’ Committee had in fact exercised, according to the modalities laid down in the LLC Agreement, the powers reserved to it by that agreement and that, therefore, the parent companies had exercised their management power over DDE.
73      Lastly, it should be added that the applicants’ replies to questions concerning the internal investigation to which the Commission refers in recital 438 of the contested decision, questions put by the Court at the hearing of 9 February 2011, confirmed that DDE’s parent companies exercised decisive influence over DDE, when they state in particular that, having been informed about the allegations of collusive activities, the parent companies ordered, in 2003, an internal investigation to be carried out within their joint venture in order to examine whether the joint venture might have participated in the cartel. The fact that they were engaged in the implementation of that investigation confirms that those parent companies believed that they had the means of requiring their joint venture to conduct itself in accordance with the competition rules. The applicants also explained that, when DDE was created, DDE had been given a chief legal adviser, who, before becoming the employee of DDE, had been a member of EI DuPont’s legal department and that that legal adviser had applied a competition law compliance programme at DDE based on the model previously applied at EI DuPont.
74      It follows from the foregoing that, in the light of all the economic, legal and organisational links between EI DuPont and DDE, the Commission did not err in finding that EI DuPont, as one of DDE’s parent companies, had exercised decisive influence over DDE’s conduct on the CR market. The Commission did not therefore err in finding that EI DuPont and DDE formed a single undertaking for the purposes of Article 81 EC and in holding EI DuPont jointly and severally liable for DDE’s conduct from 1 April 1996 until 13 May 2002.
75      That conclusion cannot be called into question by the applicants’ arguments, based, first, on the DuPont group’s lack of awareness of the existence of a cartel during the DDE period, second, on the infringement of the applicants’ rights of defence and, third, on the fact that DDE was a full-function joint venture.
76      First, as regards the applicants’ assertions that, after the formation of DDE, there were no exchanges of information between DDE and EI DuPont enabling liability for the infringement committed by DDE to be imputed to EI DuPont (see paragraph 46 above), and according to which the DuPont group was not aware either of the existence of a cartel during the DDE period, or of the direct link which existed between the reduction in DDE’s capacities and the regionalisation strategy which constituted one of the elements of the cartel (see paragraphs 54 and 55 above), they seek, in essence, to dispute that EI DuPont was aware of the existence of a cartel during the DDE period. In that regard, it should be observed that, according to the case-law, there is no requirement, in order to impute to a parent company liability for the acts undertaken by its subsidiary, to prove that that parent company was directly involved in, or was aware of, the offending conduct. It is not because of a relationship between the parent company and its subsidiary in instigating the infringement or, a fortiori, because the parent company is involved in the infringement, but because they form a single undertaking for the purposes of Article 81 EC that the Commission is able to address the decision imposing fines to the parent company (see, to that effect, Case T‑12/03 Itochu v Commission [2009] ECR II‑883, paragraph 58). Accordingly, EI DuPont’s lack of awareness of DDE’s infringement, on the assumption that it is established, is not sufficient to invalidate the conclusion in paragraph 74 above that DDE’s conduct on the CR market is imputable inter alia to EI DuPont, which, as one of DDE’s parent companies, exercised decisive influence over that conduct.
77      Second, the applicants’ argument that the Commission infringed their rights of defence by dismissing ‘the evidence of the extensive [internal] investigation [regarding whether EI DuPont was or was not aware of the existence of collusive activities] undertaken for the Applicants by [the external consultant] and the conclusions it reached’ (see paragraph 56 above) is not sufficiently substantiated and must be rejected.
78      Third, as regards the applicants’ argument based on the fact that DDE was a full-function joint venture, the Court would point out that, although a full-function joint venture, for the purposes of Regulation No 4064/89, is deemed to perform on a lasting basis all the functions of an autonomous economic entity, and is, therefore, economically autonomous from an operational viewpoint, that autonomy does not mean, as the Commission made clear in paragraph 93 of its Consolidated Jurisdictional Notice under Regulation No 139/2004 (see paragraph 69 above), that the joint venture enjoys autonomy as regards the adoption of its strategic decisions and that it is not therefore under the decisive influence exercised by its parent companies for the purposes of the application of Article 81 EC. In the present case, as was noted in paragraphs 66 and 73 above, the Members’ Committee held the power to take decisions determining DDE’s business strategy and did in fact exercise that power.
79      Moreover, the applicants’ arguments based on the fact that DDE had a separate legal personality cannot succeed. The fact that a subsidiary has its own legal personality is not sufficient to exclude the possibility of imputing its conduct to one of its parent companies (see the case-law cited in paragraph 59 above). Contrary to the view taken by the applicants, it is not appropriate to distinguish the circumstances of the present case from those in Avebe, paragraph 42 above, in which the joint venture did not have a legal personality separate from that of its parent companies. It is because the joint venture, on the one hand, and its parent companies, on the other, formed a single undertaking for the purposes of competition law, in the context of which the unlawful conduct of the subsidiary may be imputed to the parent companies, who become liable by virtue of the fact that they in reality control its commercial policy, that the General Court held that liability for the unlawful conduct of the subsidiary could be imputed to its parent companies (Avebe, paragraph 42 above, paragraph 141). Thus, the subsidiary’s absence of legal personality was not conclusive for the purposes of imputing the unlawful conduct to the parent companies.
80      Lastly, the applicants’ argument, based on the Commission’s conclusions relating to the autonomy of the full-function joint venture set out in the Rubber chemicals decision, according to which a full-function joint venture is necessarily an undertaking separate from its parent companies (see paragraph 52 above) must be rejected. Although the Commission must give an account of its reasoning if a decision goes appreciably further than the previous decision-making practice, economic operators have no grounds for a legitimate expectation that a previous decision-making practice, that is capable of being varied when the European Union institutions exercise their discretion, will be maintained (see Case T‑151/05 NVV and Others v Commission [2009] ECR II‑1219, paragraph 136 and the case-law cited). Moreover, an applicant cannot plead such an expectation to challenge findings or assessments made in a given set of proceedings by invoking findings or assessments made in the context of just one previous case (Case T‑210/01 General Electric v Commission [2005] ECR II‑5575, paragraph 119). Furthermore, it does not follow from the explicit obligation to state reasons imposed by the case-law that the Commission must, in addition to stating the reasons for its decision by reference to the file of the case in question, specifically set out its reasons for reaching a different conclusion than in a previous case concerning similar or identical situations or the same market participants (General Electric v Commission, paragraph 513). Thus, in the present case, the applicants cannot usefully plead that there has been an infringement of the obligation to state reasons and of the principle of the protection of legitimate expectations because the Commission, in an earlier decision, found that a full-function joint venture can be presumed to be independent from its parent companies, when, in recitals 420 to 440 of the contested decision, the Commission reasoned its decision explicitly by reference to the file of the case in question, to the case-law of the European Union (including, in particular, Avebe, paragraph 42 above) and to its own decision-making practice (the Gas insulated switchgear decision, paragraph 51 above).
81      Nor can the applicants claim that there has been a breach of the principle of non-discrimination. For the reasons set out in paragraphs 64 to 73 above, the Commission was entitled to find in the contested decision that EI DuPont had exercised decisive influence over DDE’s conduct and that, accordingly, DDE had not acted independently on the market. The fact that the Commission took the view, in its previous decision-making practice, in the light of the circumstances of another case, that a joint venture could be regarded as independent of its parent companies, is not capable of establishing the existence of discrimination.
82      Lastly, the applicants are not justified in pleading a breach of the principle of legal certainty. The Commission’s practice, as applied in the present case, is based on a correct interpretation of Article 81(1) EC. The principle of legal certainty cannot therefore frustrate a possible shift of direction of the Commission’s decision-making practice (see, to that effect, Case T‑99/04 AC-Treuhand v Commission [2008] ECR II‑1501, paragraph 163).
83      In the light of all the above, the first plea must be rejected.
Second plea: breach of the rules on limitation
Arguments of the parties
84      The applicants maintain that, as regards the imposition of a fine on EI DuPont for the period 13 May 1993 to 31 March 1996, the Commission breached the rules on limitation. In the applicants’ submission, DDE was an undertaking operating autonomously from its parent companies throughout the DDE period (from 1 April 1996 to 13 May 2002) and, therefore, any infringement committed by entities within the DuPont group necessarily ended on 1 April 1996. They infer from this that, as concerns the period from 13 May 1993 to 31 March 1996 (‘the pre-DDE period’), the period during which the Commission was entitled to impose a fine had passed, as the five-year limitation period expired on 31 March 2001. Thus, the imposition of a fine for an infringement committed during the period preceding the DDE period is, in the circumstances of the present case, contrary to the principles of legal certainty and protection of legitimate expectations. Furthermore, the applicants acknowledge that the present plea is predicated on the first plea being declared well founded.
85      The Commission contends that this plea should be rejected.
Findings of the Court
86      It should be noted that, as the parties rightly acknowledge, this plea is based on the assumption that the first plea would be upheld.
87      However, it is apparent from the analysis of the first plea that the Commission rightly took the view that EI DuPont should be held jointly and severally liable for DDE’s conduct during the DDE period. Moreover, the applicants do not contest the single and continuous nature of the infringement committed between 13 May 1993 and 13 May 2002. It follows that, contrary to the applicants’ submission, the infringement by the undertaking concerned did not end on 31 March (or 1 April) 1996 and that the Commission was therefore entitled to impose a fine on EI DuPont for the entire period during which that infringement was committed, including the period prior to the DDE period.
88      The second plea in law must therefore be rejected as unfounded.
Third plea: the Commission has no legitimate interest in addressing a decision to EI DuPont
Arguments of the parties
89      The applicants maintain that, since the Commission’s right to impose a fine on EI DuPont was time-barred, it was required to demonstrate that it had a legitimate interest in adopting a decision against that undertaking, in accordance with Joined Cases T‑22/02 and T‑23/02 Sumitomo Chemical and Sumika Fine Chemicals v Commission [2005] ECR II‑4065. In the present case, the Commission had no legitimate interest in continuing the proceedings against EI DuPont and has provided no justification for having done so. Furthermore, the applicants acknowledge that the present plea is predicated on the first and second pleas being declared to be well founded.
90      The Commission contends that this plea should be rejected.
Findings of the Court
91      The Court observes that, as the parties rightly acknowledge, this plea is based on the assumption that the first and second pleas would be upheld.
92      However, as is apparent from the analysis of the first and second pleas, the Commission was entitled to impose a fine on EI DuPont for the entire period during which that infringement was committed, including the period prior to the DDE period. Accordingly, it was not required to demonstrate that it had a legitimate interest in adopting a decision against EI DuPont.
93      Consequently, the third plea must be rejected as unfounded.
Fourth plea: incorrect characterisation of certain elements as forming part of the cartel
Wording of the contested decision
94      The Commission found in recital 329 of the contested decision as follows:
‘It is demonstrated in the facts described in Chapter 4 [of the contested decision] that during the periods identified …, Bayer, [EI] DuPont/DDE, Eni[C]hem, Denka and Tosoh:
(a)       agreed upon the allocation and the stabilisation of markets, market shares and sales quotas (referred to by the competitors as “regionalisation concept”, “target market share plan”, “moratorium”) in certain Contracting Parties to the EEA Agreement and regions worldwide …;
(b)       agreed upon price increases and/or percentage price increases and/or target prices and/or price structures for [CR] in the EEA and worldwide on several occasions in the period 1993-2003 …;
(c)       agreed upon the method and the dates of the price increases by market leaders in different European territories and worldwide …;
(d)       implemented the agreed price increases and ensured implementation by a monitoring system consisting of staggered announcement dates and a market leader arrangement for various European territories and worldwide and by sequential announcements to customers and/or public, the timing, order and form of which had been previously agreed upon …;
(e)       agreed upon minimum prices (referred to by the competitors as “ideal price lists by region”, “price floors”, “bottom price levels”, “rock bottom prices”) in different Contracting Parties to the EEA Agreement and worldwide and for certain customers …;
(f)       agreed upon the allocation of certain key customers to certain suppliers and pricing differentials …;
(g)       attended meetings and participated in conversations concerning the implementation of and the adherence to the agreements reached …;
(h)       exchanged information on the pricing, supply capacity, sales of [CR] in the EEA and worldwide as well as other market relevant information also outside the context of monitoring compliance with specific agreements referred to in point (g) …;
(i)       participated in other anticompetitive contacts in which market strategies were compared and possible future actions on the market contemplated … .’
95      As regards specifically the plant closures, the Commission stated in recitals 91 and 330 of the contested decision that ‘[a]long with the objectives of the regionalisation strategy, Bayer and DDE also reduced their production capacities in a way that ensured better functioning of the regionalisation’ and that ‘[i]t is further demonstrated … that Bayer and DuPont/DDE concerted, within the framework of the regionalisation strategy, upon capacity reductions’.
Arguments of the parties
96      The applicants maintain that the Commission has not demonstrated to the requisite legal standard the existence of an agreement or a concerted practice on the closure of one of Bayer’s factories in Houston (Texas, United States) and one of DDE’s factories in Maydown. The Commission has no evidence of such collusion. The applicants claim that the decisions to close those factories were taken unilaterally and independently of each other and that they therefore did not form the object of a cartel. Furthermore, DDE’s decision to cease its activities in Maydown was a legitimate business decision and its adoption did not take account of the cartel or its objectives. In reality, the Commission’s position is motivated by its desire to implicate EI DuPont and Dow in the cartel during the DDE period.
97      It follows, in the applicants’ submission, that when determining the gravity of the infringement and the level of the fine, the Commission did not discharge its burden of proving that the closure of the factories was linked with the cartel.
98      The applicants also dispute the Commission’s argument that a major strategic decision taken within the Members’ Committee and coinciding with the ‘regionalisation’ objectives of the cartel was thus taken in the context of that cartel and thus supports the finding that the parent companies were implicated in the cartel and should be held jointly and severally liable for it. That reasoning is ‘speculative’ and circular.
99      The applicants further submit that the fact that the participants in the cartel meetings discussed the desirability of capacity reductions does not mean that the closure of the two factories was the subject-matter of a concerted practice.
100    Lastly, EI DuPont denies that the representatives of the DuPont group at the material time attended the meeting of the undertakings involved in the cartel of 4 February 1998 during which the participants were informed that DDE’s factory was to be closed. That secret meeting took place without EI DuPont’s knowledge and it was the representatives of DDE, for which DPE LLC and DPE SA were responsible, that attended that meeting.
101    The Commission disputes the applicants’ arguments and contends that this plea should be rejected.
Findings of the Court
102    The Court notes that the applicants do not contest that, throughout the period from 1 April 1996 until 13 May 2002, DDE participated directly in a single and continuous infringement of Article 81 EC, 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.
103    Nor do the applicants contest that, as the Commission found in recitals 525 and 526 of the contested decision, first, horizontal market-sharing and price-fixing are by their very nature among the most serious restrictions of competition and, second, the infringement was systematically implemented in the present case.
104    In that regard, the Court observes that the contested decision states, in recital 370, that ‘[i]t is, in fact, proved, that not only the market share agreements but also most of the collusive price increases to which this Decision relates were effectively fully or partially implemented’.
105    Accordingly, the applicants’ claim relating to the uncoordinated nature of the closures of Bayer’s and DDE’s factories is not sufficient to call in question the Commission’s assessments regarding the existence of an infringement, its gravity and the level of the fine. The items of evidence on which the Commission relies in a decision in order to prove the existence of an infringement of Article 81(1) EC by an undertaking must not be assessed separately, but as a whole (Case 48/69 ICI v Commission [1972] ECR 619, paragraph 68, and Case T‑311/94 BPB de Eendracht v Commission [1998] ECR II‑1129, paragraph 201). Thus, the mere fact that a one-off and isolated item of evidence, relied on by the Commission in a decision establishing the existence of a cartel, might not be part of the cartel in question cannot invalidate the finding of the existence of that cartel where that finding is based on a body of other consistent evidence the validity of which is not contested by the undertakings in question.
106    Moreover, it is apparent from the contested decision and, in particular, from recital 335 thereof that the Commission did not contend that the closures of Bayer’s and DDE’s factories in 1998 in Europe and the United States were the result of an agreement. The Commission contended that those closures ‘were part of a concerted practice in line with the regionalisation strategy agreed upon between the competitors’. The Commission referred, in recitals 139, 205, 206, 217, 224 and 231 of the contested decision, to the indicia which revealed that the factory closures were the subject of multilateral and bilateral discussions between Bayer, DDE and their competitors at an early stage. It is also apparent from the statements of the other cartel participants that Bayer and DDE used the closures of their factories as an example of best practice to promote further adherence to the regionalisation strategy (see recital 335 of the contested decision). In addition, Tosoh’s statements cited in recitals 244, 247 and 249 of the contested decision confirm that the closures of Bayer’s and DDE’s factories did in fact contribute to the attainment of the cartel’s objectives.
107    Moreover, as regards the applicants’ assertion that EI DuPont was unaware of the infringement committed by DDE, since no representative of the DuPont group had attended the meeting of the undertakings involved in the cartel of 4 February 1998, and that the Commission relied on EI DuPont and Dow’s alleged awareness of the infringement to implicate them in the cartel, it is sufficient to note that that absence of awareness cannot suffice to exclude EI DuPont’s liability and that the Commission was right to hold EI DuPont jointly and severally liable for DDE’s unlawful conduct (see paragraph 76 above).
108    Consequently, the fourth plea must be rejected.
Fifth plea: incorrect determination of the amount of the fine imposed on the applicants
Wording of the contested decision
109    As regards the multiplier applied to the starting amount of the fine in order to take account of the duration of the infringement, the Commission stated, in recital 536 of the contested decision, that ‘the infringement lasted for 9 years for Bayer, [EI] DuPont, Denka, Eni[C]hem and Tosoh and for 6 years and 1 month for Dow and DPE [LLC and DPE SA]’ and that ‘[i]n accordance with point 24 of the [2006] Guidelines …, the [starting] amount [of the fine] determined [by reference to the value of sales] should therefore be multiplied by 9 for Bayer, [EI] DuPont, Denka, Eni[C]hem and Tosoh and by 6.5 for Dow and DPE [LLC and DPE SA]’.
110    As regards the application of the 2002 Leniency Notice, the Commission decided, in recital 637 of the contested decision, that ‘[EI] DuPont/DPE [LLC and DPE SA] should be granted a reduction of 25% of the fine that would otherwise have been imposed on them’.
111    In recital 635 of the contested decision, the Commission explained:
‘In determining, pursuant to point 23 of the [2002] Leniency Notice, the percentage reduction of the fine for which DDE/DPE [LLC and DPE SA] qualifies within the band of 20% to 30%, the Commission takes into account the extent to which the evidence submitted by DDE/DPE [LLC and DPE SA] represents added value, as well as the time at which DDE/DPE [LLC and DPE SA] submitted that evidence. DDE/DPE [LLC and DPE SA] approached the Commission 10 months after the Commission had carried out surprise inspections at Dow and 4 months after the Commission’s inspections at Denka. The added value of DDE/DPE [LLC and DPE SA’s] submission is mainly linked to those instances for which corroboration was still necessary, even after Tosoh’s submission, especially through the submission of direct evidence relating to the early cartel period and the further details that it confirmed or disclosed (including details on the general scope and functioning of the cartel). Without the direct evidence provided by DDE on the early years of the cartel, the Commission could only have relied on oral submissions from Bayer and Tosoh, which were partially contradictory. The documents submitted allowed the Commission to establish unambiguously the first two years of the cartel.’
Arguments of the parties
112    The applicants’ fifth plea in law has two parts. The applicants claim, first, that the Commission made a manifest error of assessment and breached the principles of proportionality and non-discrimination in applying the multiplier for duration of the infringement and, second, that it made a manifest error of assessment of the facts and an error of law in determining the amount of the reduction of the fine under the 2002 Leniency Notice.
–       First part, concerning the application of the multiplier in respect of the duration of the infringement
113    The applicants claim that the multiplication of the starting amount of the fine by a factor of 6.5 to take into account the duration of the infringement by DPE LLC and DPE SA – which the Commission fixed at six years and one month for the DDE period – and which amounts to treating a single month as though it were half a year, even if consistent with the wording of point 24 of the 2006 Guidelines, constitutes a manifest error of assessment of the facts, is contrary to the objectives of the 2006 Guidelines and amounts to a breach of the principles of proportionality and equal treatment. In the reply, the applicants state that it is not the Guidelines, but the way in which the Commission applied them which brought about unequal treatment.
114    The multiplication by a factor of 6.5 infringes the principles of proportionality and non-discrimination since some undertakings risk being punished by fines calculated by reference to periods that are considerably longer than the periods during which they actually participated in the infringement. The applicants refer in that regard to Joined Cases T‑101/05 and T‑111/05 BASF and UCB v Commission [2007] ECR II‑4949, paragraph 219, where this Court indicated that fines are more proportionate where they are calculated in a way that reflects the precise duration of an undertaking’s participation in the infringement. The applicants also emphasise that the 2006 Guidelines make clear that the objective of the multiplier in question is to take fully into account the duration of the participation of each undertaking in the infringement.
115    Thus, the applicants submit that the Commission ought in the present case to have calculated the multiplier to be applied by reference to the duration of the infringement more precisely and applied a multiplier of 6.08 for a period of six years and one full month, or a multiplier of 6.12 for a period of six years, one month and 13 days.
116    At the hearing, the applicants put forward an argument that point 24 of the 2006 Guidelines is illegal.
117    The Commission disputes the applicants’ arguments and contends that this part of the fifth plea should be rejected. In its view, the argument alleging that point 24 of the 2006 Guidelines may be illegal contradicts the applicants’ claims in the reply and, in any event, must be rejected as out of time.
–       Second part, concerning the reduction of the fine under the 2002 Leniency Notice
118    The applicants maintain that, by granting them a reduction of only 25% of the basic amount of their fine under the 2002 Leniency Notice, when the band applicable is 20 to 30% and the first leniency applicant, Tosoh, was granted the maximum possible reduction in the band applicable to its situation, the Commission made a manifest error of assessment of the facts and an error of law. In addition, the Commission did not provide adequate reasoning for its decision to adopt that approach and by treating the first leniency applicant more favourably it breached the principle of non-discrimination.
119    The applicants emphasise, in particular, that DDE’s leniency application was submitted only four months after Tosoh’s first statement, which is a small difference in the context of an investigation such as that carried out in the present case. Furthermore, the succession in time of the leniency applications is already taken into consideration in the bands of reduction laid down in the 2002 Leniency Notice. The applicants maintain that the Commission was wrong to establish a relationship between the time of submission of DDE’s leniency application and the dates of the unannounced investigations carried out at the premises of one of DDE’s shareholders, Dow, and a third party, Denka.
120    Since the evidence produced in DDE’s leniency application had real added value, as the contested decision shows at several points, DDE ought to have received the maximum possible reduction in the band laid down in the 2002 Leniency Notice. The Commission ought at least to have explained why the applicants could not be granted that maximum reduction.
121    The Commission disputes the applicants’ arguments and contends that this part of the fifth plea should be rejected.
Findings of the Court
–       First part, concerning the application of the multiplier in respect of the duration of the infringement
122    It should be borne in mind that the fines that the Commission imposed in the present case are governed by Article 23 of Regulation No 1/2003, which corresponds to Article 15 of Regulation No 17 of the Council of 6 February 1962, First Regulation implementing Articles [81 EC] and [82 EC] (OJ, English Special Edition 1959-1962, p. 87), which was in force when the infringement was committed. In order to determine the amount of the fine, the Commission applied the 2006 Guidelines. Those guidelines were published before the statement of objections was sent to the applicants on 13 March 2007.
123    According to Article 23(3) of Regulation No 1/2003, in fixing the amount of the fine to be imposed on undertakings guilty of infringements of the competition rules, regard is to be had both to the gravity and to the duration of the infringement.
124    It has been consistently held that, within the limits laid down in Regulation No 1/2003, the Commission enjoys a wide discretion when exercising its power to impose such fines (Joined Cases C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P Dansk Rørindustri and Others v Commission [2005] ECR I‑5425, paragraph 172, and Joined Cases C‑125/07 P, C‑133/07 P, C‑135/07 P and C‑137/07 P Erste Group Bank and Others v Commission [2009] ECR I‑8681, paragraph 123). That power is however limited; where the Commission adopts guidelines which are consistent with the Treaty and are designed to specify the criteria which it intends to apply in the exercise of its discretion, the Commission itself then limits that discretion in that it must comply with the guidelines which it has imposed upon itself (see, to that effect, Case C‑413/08 P Lafarge v Commission [2010] ECR I‑5361, paragraph 95, and Case T‑73/04 Carbone-Lorraine v Commission [2008] ECR II‑2661, paragraph 192 and the case-law cited). The Commission may not depart from the Guidelines in an individual case without giving reasons that are compatible with the principle of equal treatment (Dansk Rørindustri and Others v Commission, paragraph 209).
125    As regards the multiplier in respect of the duration of the infringement, point 24 of the 2006 Guidelines provides that, ‘[i]n order to take fully into account the duration of the participation of each undertaking in the infringement, the amount determined on the basis of the value of sales … will be multiplied by the number of years of participation in the infringement’ and that ‘[p]eriods of less than six months will be counted as half a year; periods longer than six months but shorter than one year will be counted as a full year’.
126    Moreover, it is settled case-law that the Commission may at any time adjust the level of fines if the proper application of the competition rules so requires (Joined Cases 100/80 to 103/80 Musique diffusion française and Others v Commission [1983] ECR 1825, paragraph 109, and Case T‑23/99 LR AF 1998 v Commission [2002] ECR II‑1705, paragraphs 236 and 237), since such an alteration of an administrative practice may then be regarded as objectively justified by the objective of general prevention of infringements of the competition rules. The increase in the level of fines cannot therefore, in itself, be regarded as unlawful under the principle that penalties must have a proper legal basis, provided that it remains within the statutory limits laid down by Article 23(2) and (3) of Regulation No 1/2003, as interpreted by the Courts of the European Union (Case T‑279/02 Degussa v Commission [2006] ECR II‑897, paragraph 81, and Case T‑69/04 Schunk and Schunk Kohlenstoff-Technik v Commission [2008] ECR II‑2567, paragraph 43).
127    Although the method of assessing the duration of an infringement by progressive thresholds each of six months may have the effect of ignoring the differences which may exist between the exact durations during which the undertakings participated in the infringement, it cannot be censured, on condition that the setting of such thresholds complies with the principle of equal treatment, which prohibits comparable situations from being treated differently and different situations from being treated in the same way, unless such treatment is objectively justified, and the principle of proportionality, which requires measures adopted by European Union institutions not to exceed the limits of what is appropriate and necessary in order to attain the objective pursued. However, the European Union Courts’ review of the lawfulness of the exercise of the Commission’s discretion in the matter must confine itself to checking that the thresholds set are coherent and objectively justified and the Courts must not immediately substitute their own assessment for that of the Commission (see, to that effect and by analogy, Itochu v Commission, paragraph 76 above, paragraphs 73 and 74).
128    The fact that the multiplier in respect of the duration of the infringement is not strictly proportionate to the exact duration of the infringement committed by the undertaking in question cannot be censured, since it is merely the result of the method of assessing the duration of an infringement by progressive thresholds each of six months. Even if the effect of the application of that method is that a multiplier calculated by reference to a period longer than that during which they actually participated in the infringement is applied to certain undertakings, the difference in treatment is objectively justified by the objective of general prevention and the taking of effective action against infringements of the European Union competition rules (see, to that effect and by analogy, Itochu v Commission, paragraph 76 above, paragraphs 76, 77 and 81). Moreover, in the light of the generally long duration of infringements, in particular of the most serious infringements, to which Article 81 EC is applied, the setting of progressive thresholds of six months is coherent, objectively justified and not disproportionate.
129    Thus, the Commission’s choice to treat periods of less than 6 months as half a year, and therefore to treat a period of 1 month and 13 days as if it was half a year, and to treat periods of 6 months, but of less than 1 year, as a full year does not exceed the limits of the discretion which it has in that regard and does not infringe the principles of proportionality and of equal treatment.
130    Consequently, the argument put forward by the applicants at the hearing by which they sought a declaration that point 24 of the 2006 Guidelines is contrary to the principles of proportionality and of equal treatment must be rejected as unfounded, and it is not necessary to rule on its admissibility.
131    In the present case, it is common ground that DDE participated in the cartel from 1 April 1996 until 13 May 2002, that is during an infringement period of 6 years, 1 month and 13 days. Consequently, by setting the duration of the infringement at six years and one month and by multiplying the starting amount of the fine by a factor of 6.5, the Commission complied with the rules which it imposed upon itself in the 2006 Guidelines and, therefore, did not exceed the limits of its discretion.
132    As for the argument that the applicants base on BASF and UCB v Commission, paragraph 114 above, it is sufficient to note that, in that case, it was in the exercise of its unlimited jurisdiction, and after having partially annulled the decision which was at issue, that the General Court had carried out a fresh calculation of the fine to be imposed on BASF and that the General Court had chosen to fine-tune the amount of the fine in such a way as to reflect the exact duration of BASF’s participation in the infringement in question, whilst pointing out that the Guidelines are without prejudice to the assessment of the amount of the fine by the Courts of the European Union, which have unlimited jurisdiction in that regard in accordance with Article 17 of Regulation No 17 (now Article 31 of Regulation No 1/2003).
133    Thus, first, it does not follow from that judgment, contrary to what the applicants suggest, that the Commission is required, in order for the principle of proportionality to be observed, to ensure that the multiplier applied in respect of the duration of the infringement reflects the exact duration of the participation of each undertaking in that infringement. Second, in the present case, it is not incumbent upon the Court, at this stage, in the absence of any finding that the contested decision is unlawful – as was the case in BASF and UCB v Commission, paragraph 114 above – to recalculate the amount of the fine imposed on the applicants; the Court is merely required to review the legality of the Commission’s application of the 2006 Guidelines to their situation. The argument that the applicants base on BASF and UCB v Commission, paragraph 114 above, must therefore be rejected.
134    As regards the breach of the principle of equal treatment, the applicants stated at the hearing, in reply to the questions put by the Court, that, in the present case, they were discriminated against in relation to the other participants in the cartel, namely those which participated in the cartel between 13 May 1993 and 13 May 2002, that is to say for nine years and one day, which constitutes a period exceeding nine years. The applicants claim that the unequal treatment is the consequence of the fact that the Commission did not round up the multiplier of the starting amount of the fine to 9.5 in the case of those other undertakings, whereas it rounded up the multiplier to 6.5 in the case of DDE, which participated in the cartel for 6 years, 1 month and 13 days.
135    It that regard, it should be noted that, in recital 515 of the contested decision, the Commission found that the infringement of DPE LLC and DPE SA established from 1 April 1996 until 13 May 2002 had lasted six years and one month. Similarly, as regards the other undertakings, including EI DuPont, the Commission found that their infringement established from 13 May 1993 until 13 May 2002 had lasted nine years. It follows that, when calculating the duration of the infringement, the Commission took into consideration only whole years and months and did not take account of days. Accordingly, when determining the duration of the infringement, the Commission applied the same method of calculation in respect of all the participants and did not infringe the principle of equal treatment.
136    Moreover, on the assumption that it were established that the other undertakings’ participation in the infringement did indeed exceed nine years, and even if the Commission erred in those undertakings’ favour by applying to the starting amount of their fines only a multiplier of 9, that fact cannot constitute a valid reason for reducing the fine imposed on the applicants, since no one may rely on an unlawfulness committed in favour of another party (see, to that effect, Case T‑241/01 Scandinavian Airlines System v Commission [2005] ECR II‑2917, paragraph 170). That argument must therefore also be rejected.
137    In the light of the foregoing, the first part of this plea must be rejected as unfounded.
–       Second part, concerning the reduction of the fine under the 2002 Leniency Notice
138    It should be borne in mind that, as is apparent from paragraphs 123 and 124 above, although the Commission enjoys a wide discretion when setting fines, the exercise of that discretion is however limited, inter alia by rules of conduct which the Commission has imposed on itself, not only in the Guidelines on the method of setting fines, but also in the 2002 Leniency Notice (see Lafarge v Commission, paragraph 124 above, paragraph 95 and the case-law cited).
139    In the 2002 Leniency Notice, the Commission set out the conditions under which undertakings cooperating with it during its investigation into a cartel may be exempted from a fine or be granted a reduction in the fine which would otherwise have been imposed on them.
140    Point 8 of the 2002 Leniency Notice states as follows:
‘The Commission will grant an undertaking immunity from any fine which would otherwise have been imposed if:
(a)       the undertaking is the first to submit evidence which in the Commission’s view may enable it to adopt a decision to carry out an investigation in the sense of Article 14(3) of Regulation No 17 … in connection with an alleged cartel affecting the Community; or
(b)       the undertaking is the first to submit evidence which in the Commission’s view may enable it to find an infringement of Article 81 EC … in connection with an alleged cartel affecting the Community.’
141    Point 20 of the 2002 Leniency Notice states that ‘[u]ndertakings that do not meet the conditions [for exemption from fines] under Section A above [Immunity from fines] may be eligible to benefit from a reduction of any fine that would otherwise have been imposed’ and point 21 states that ‘[i]n order to qualify, an undertaking must provide the Commission with evidence of the suspected infringement which represents significant added value with respect to the evidence already in the Commission’s possession and must terminate its involvement in the suspected infringement no later than the time at which it submits the evidence’.
142    As regards the concept of added value, the following explanation is given at point 22 of the 2002 Leniency Notice:
‘The concept of “added value” refers to the extent to which the evidence provided strengthens, by its very nature and/or its level of detail, the Commission’s ability to prove the facts in question. In this assessment, the Commission will generally consider written evidence originating from the period of time to which the facts pertain to have a greater value than evidence subsequently established. Similarly, evidence directly relevant to the facts in question will generally be considered to have a greater value than that with only indirect relevance.’
143    Moreover, the Commission, once it has found that the evidence represents significant added value within the meaning of point 21 of the 2002 Leniency Notice, still has a margin of assessment when it is required to determine the exact level of the reduction of the fine to be granted to the undertaking concerned. The first paragraph of point 23(b) of the 2002 Leniency Notice provides for fine-reduction bands for the various categories of undertakings concerned:
‘–       first undertaking to meet point 21: a reduction of 30-50%;
–        second undertaking to meet point 21: a reduction of 20-30%;
–        subsequent undertakings that meet point 21: a reduction of up to 20%’.
144    In addition, according to the second paragraph of point 23(b) of the 2002 Leniency Notice:
‘In order to determine the level of reduction within each of these bands, the Commission will take into account the time at which the evidence fulfilling the condition in point 21 was submitted and the extent to which it represents added value. It may also take into account the extent and continuity of any cooperation provided by the undertaking following the date of its submission.’
145    According to the case-law, the Commission has a wide discretion as regards the method of calculating fines and it may, in that regard, take account of numerous factors, including the cooperation provided by the undertakings concerned during the investigation conducted by its departments. In that context, the Commission is required to make complex assessments of fact, such as those relating to the cooperation provided by the individual undertakings concerned (Case C‑328/05 P SGL Carbon v Commission [2007] ECR I‑3921, paragraph 81). Moreover, the Commission has a certain discretion in determining whether the cooperation in question was ‘decisive’ in facilitating its task of finding the existence of an infringement and putting an end to it and it is only where it manifestly exceeds that discretion that it may be criticised (see Case T‑410/03 Hoechst v Commission [2008] ECR II‑881, paragraph 555 and the case-law cited). Accordingly, the review carried out by the General Court of the Commission’s assessment of the added value of the evidence provided by an undertaking in the context of the leniency programme is limited.
146    In the present case, the applicants claim that DDE ought to have received the maximum possible reduction in the band laid down in the 2002 Leniency Notice, since Tosoh, the first leniency applicant, was granted the maximum possible reduction in the band applicable to its situation. In the applicants’ submission, the evidence produced by DDE’s leniency application had real added value and that application was submitted only four months after Tosoh’s statement.
147    In that regard, it must first be observed that the applicants do not contest that DDE’s cooperation falls within the second indent of the first paragraph of point 23(b) of the 2002 Leniency Notice, as the Commission found in the contested decision, and that, on that basis, they were entitled to a reduction in their fine of between 20 and 30%. The reduction in the fine of 25% granted to EI DuPont, DPE LLC and DPE SA in respect of DDE’s cooperation therefore complies with the band laid down for that purpose by the 2002 Leniency Notice.
148    Moreover, although, in assessing the cooperation given by members of a cartel, the Commission cannot disregard the principle of equal treatment (Case T‑116/04 Wieland-Werke v Commission [2009] ECR II‑1087, paragraph 124), which prevents comparable situations from being treated differently and different situations from being treated in the same way, unless such difference in treatment is objectively justified (see Case C‑101/08 Audiolux and Others [2009] ECR I‑9823, paragraph 54 and the case-law cited), the assessment of the added value of the material contained in a leniency application is carried out by reference to the evidence already in the Commission’s possession.
149    First, it is perfectly clear from the uncontested findings in recital 635 of the contested decision that, even though DDE satisfied the conditions laid down in point 21 of the 2002 Leniency Notice relatively shortly after the statement of the first leniency applicant, the fact remains that the evidence relating to the cartel that was provided by DDE and that give rise to the reduction of the fine was only notified to the Commission 10 months after the Commission’s inspections at Dow, 4 months after the inspections at Denka and 4 months after Tosoh applied for leniency.
150    Second, since Tosoh’s cooperation preceded DDE’s, the Commission already possessed more evidence at the time DDE submitted its leniency application than when Tosoh submitted its application. Moreover, Tosoh had provided several self-explanatory and unambiguous documents drafted at the time the infringement took place which allowed the Commission to establish facts which it could not have otherwise established and corroborated various instances for which the incriminating value of the available evidence was not obvious (see recital 622 of the contested decision), whereas the added value of DDE’s submission was mainly linked to those instances for which corroboration was still necessary, especially relating to the early cartel period (see recital 635 of the contested decision). Moreover, it is not disputed that Tosoh provided the Commission with significant evidence relating to the cartel only a week after the inspections at Denka.
151    It follows that the Commission, by taking into account, under the second paragraph of point 23(b) of the 2002 Leniency Notice, the time at which the evidence was submitted, without even having regard to the quality and the usefulness of the evidence submitted by DDE and, consequently, by granting it a reduction in the fine of 25% in respect of its cooperation for the purposes of establishing the existence of the cartel, did not, contrary to the applicants’ assertions, manifestly exceed its discretion in that regard. Moreover, since the situations of Tosoh and DDE are not comparable, the Commission did not infringe the principle of equal treatment in granting Tosoh the maximum possible reduction in the band applicable to its situation (which fell within the first indent of point 23(b) of the 2002 Leniency Notice) and DDE a reduction in the middle of the band applicable to its situation (which fell within the second indent of point 23(b) of that notice).
152    Lastly, as regards the argument that the Commission did not provide adequate reasoning for its decision to adopt that approach, it should be borne in mind that, according to settled case-law, although, in stating the reasons for the decisions which it takes to enforce the rules on competition, the Commission is not required to discuss all the issues of fact and law and the considerations which have led it to adopt its decision, it is none the less required under Article 253 EC to set out at least the facts and considerations having decisive importance in the context of the decision in order to make clear to the European Union Courts and the persons concerned the circumstances in which it has applied the Treaty (see Joined Cases T‑374/94, T‑375/94, T‑384/94 and T‑388/94 European Night Services and Others v Commission [1998] ECR II‑3141, paragraph 95 and the case-law cited). In the present case, it is apparent from the analysis carried out in paragraphs 149 to 151 above that the Commission gave proper reasons for its decision. The applicants’ argument alleging infringement of the obligation to state reasons must therefore be rejected.
153    The second part of this plea must therefore be rejected as unfounded.
154    Consequently, the fifth plea in law must be rejected as unfounded.
Sixth plea: manifest error of assessment of the facts and failure to state reasons in that the Commission concluded that one of the members of DDE’s staff, Mr A., had participated in the cartel
Arguments of the parties
155    The applicants maintain that, contrary to the assertion made at recital 37 to the contested decision, Mr A. was not involved in the cartel as a ‘DDE participant’ during the DDE period and was not aware of the cartel. The Commission has made a manifest error of assessment of the nature of certain information provided by DDE concerning Mr A. in its oral statement of 21 November 2003. The Commission provided no reasons for rejecting the probative evidence provided by the applicants on that point, which resulted from an internal investigation. The applicants also request that Mr A.’s name be removed from the contested decision.
156    That situation not only constitutes a manifest error of assessment of critical importance for Mr A., both in terms of his reputation and personally, but also illustrates the Commission’s failure to respond to the applicants’ arguments in their response to the statement of objections. Lastly, in so far as the Commission could not conclude that Mr A. had been one of the DDE representatives at the meetings and contacts in issue, it was not entitled to take that factor into account when determining the gravity of the infringement and the level of the fines imposed on the applicants.
157    The Commission contests the applicants’ arguments and contends that the sixth plea should be rejected.
Findings of the Court
158    The Court observes that, in recital 37 of the contested decision, the Commission stated that Mr A. was one ‘[of t]he representatives of DDE in the meetings and contacts during the period from 1 April 1996 to 13 May 2002 described below’. In recitals 270 and 271 of the contested decision, reference is made to two internal emails concerning meetings and contacts. It is not contested that those emails can be imputed to Mr A. as an employee of DDE and as author and addressee of those emails.
159    Therefore, contrary to the view taken by the applicants, the Commission did not consider in the contested decision that Mr A. had been personally involved in the cartel, but mentioned him only in his capacity as an employee of DDE, since DDE was involved in the cartel. As the Commission correctly observed, the purpose of its investigations and decisions is not as a rule to establish that certain physical persons participated in a cartel but to establish that undertakings did so, in breach of Article 81(1) EC. That is indeed what the Commission did in the present case, in establishing that the applicants infringed Article 81 EC by participating in a single and continuous agreement and in concerted practices in the CR sector. Moreover, Mr A. is not referred to in Article 1 of the contested decision as one of the participants in the cartel (see paragraph 13 above).
160    It follows that, in so far as this plea seeks to challenge the merits of the Commission’s finding with respect to Mr A.’s participation in the cartel, it must be rejected as manifestly unfounded, since it has no basis in fact.
161    As regards the applicants’ request that Mr A.’s name be removed from the contested decision, it should be borne in mind that, by virtue of settled case-law, the European Union Courts are not entitled, when exercising judicial review of legality, to issue directions to the institutions or to assume the role assigned to them; rather, it is for the administration concerned to adopt the necessary measures to implement a judgment given in proceedings for annulment (see Case T‑155/04 SELEX Sistemi Integrati v Commission [2006] ECR II‑4797, paragraph 28 and the case-law cited). This plea must therefore be rejected as inadmissible to the extent that it seeks the deletion of certain text in the contested decision.
162    It follows that the sixth plea must be rejected in part as manifestly unfounded and in part as inadmissible.
163    It follows from all the foregoing that the applicants’ first and second heads of claim seeking annulment of Article 1(b) and Article 2(b) of the contested decision must be rejected.
164    As regards the third head of claim, relating to the reduction of the fine imposed on the applicants under Article 2(b) of the contested decision, it is true that the power of unlimited jurisdiction conferred on the General Court in competition matters by Article 31 of Regulation No 1/2003 in accordance with Article 229 EC authorises that court, beyond a simple review of legality, which merely permits dismissal of the action for annulment or annulment of the contested measure, to vary the contested measure, even without annulling it, by taking into account all of the factual circumstances, so as to amend the amount of the fine (see Case C‑534/07 P Prym and Prym Consumer v Commission [2009] ECR I‑7415, paragraph 86 and the case-law cited). However, in the present case, the Court takes the view that there is no reason to reduce the amount of the fine under that power.
165    It follows from all the foregoing that the action must be dismissed in its entirety.
Costs
166    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. As the applicants have been unsuccessful, they must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (Seventh Chamber)
hereby:
1.      Dismisses the action;
2.      Orders EI du Pont de Nemours and Company, DuPont Performance Elastomers LLC and DuPont Performance Elastomers SA to pay the costs.
Dittrich
Wiszniewska-Białecka
Prek
Delivered in open court in Luxembourg on 2 February 2012.
[Signatures]
Table of contents
Background to the dispute
The applicants and the product concerned
The procedure before the Commission
The contested decision
Procedure and forms of order sought by the parties
Law
First plea: incorrect imputation of the infringement to EI DuPont during the period 1 April 1996 to 13 May 2002
Wording of the contested decision
Arguments of the parties
Findings of the Court
Second plea: breach of the rules on limitation
Arguments of the parties
Findings of the Court
Third plea: the Commission has no legitimate interest in addressing a decision to EI DuPont
Arguments of the parties
Findings of the Court
Fourth plea: incorrect characterisation of certain elements as forming part of the cartel
Wording of the contested decision
Arguments of the parties
Findings of the Court
Fifth plea: incorrect determination of the amount of the fine imposed on the applicants
Wording of the contested decision
Arguments of the parties
– First part, concerning the application of the multiplier in respect of the duration of the infringement
– Second part, concerning the reduction of the fine under the 2002 Leniency Notice
Findings of the Court
– First part, concerning the application of the multiplier in respect of the duration of the infringement
– Second part, concerning the reduction of the fine under the 2002 Leniency Notice
Sixth plea: manifest error of assessment of the facts and failure to state reasons in that the Commission concluded that one of the members of DDE’s staff, Mr A., had participated in the cartel
Arguments of the parties
Findings of the Court
Costs
* Language of the case: English.
1 Confidential information omitted.