Judgment of the Court (Ninth Chamber) of 26 September 2013 — The Dow Chemical Company v Commission

(Case C‑179/12 P)

‛Appeal — Competition — Agreements, decisions and concerted practices — Market for chloroprene rubber — Price-fixing and market-sharing — Infringement of Article 81 EC — Imputability of the unlawful conduct of a subsidiary to its parent company — Joint control by two parent companies — Decisive influence — Rights of defence — Increase in the fine — Deterrent effect’

1. Competition — Union rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Criteria for assessment — Presumption that a parent company exerts a decisive influence over its wholly-owned subsidiaries — Possibility of the Commission corroborating the presumption with facts to demonstrate the actual exercise of decisive influence — Joint undertaking held by two parent companies (Art. 101 TFEU) (see paras 52-61, 65, 66)

2. Appeals — Grounds — Plea directed against a superfluous ground — Invalid plea in law — Rejection (see paras 62, 63, 75, 76)

3. Appeals — Grounds — Mistaken assessment of the facts — Inadmissibility — Review by the Court of the assessment of the facts and evidence — Possible only where the clear sense of the evidence has been distorted (Art. 256(1) TFEU; Statute of the Court of Justice, Art. 58, first para.) (see paras 71-73)

4. Appeals — Grounds — Plea submitted for the first time in the context of the appeal — Inadmissibility (Art. 256(1) TFEU; Statute of the Court of Justice, Art. 58, first para.; Rules of Procedure of the Court of Justice, Art. 170(1)) (see para. 82)

Re:

Appeal against the judgment of the General Court (Seventh Chamber) of 2 February 2012 in Case T‑77/08 The Dow Chemical Company v Commission in which that Court dismissed an action for the partial annulment 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/F/38.629 — Chloroprene Rubber) concerning a cartel on the market for chloroprene rubber in the European Economic Area (EEA), relating to market-sharing and price-fixing, and, in the alternative, a reduction in the amount of the fine imposed on the applicant — Joint venture — Imputability of the unlawful conduct.

Operative part:

The Court:

1. Dismisses the appeal;

2. Orders The Dow Chemical Company to pay the costs.

Judgment of the Court (Ninth Chamber) of 26 September 2013 — The Dow Chemical Company v Commission

(Case C‑179/12 P)

‛Appeal — Competition — Agreements, decisions and concerted practices — Market for chloroprene rubber — Price-fixing and market-sharing — Infringement of Article 81 EC — Imputability of the unlawful conduct of a subsidiary to its parent company — Joint control by two parent companies — Decisive influence — Rights of defence — Increase in the fine — Deterrent effect’

1. Competition — Union rules — Infringements — Attribution — Parent company and subsidiaries — Economic unit — Criteria for assessment — Presumption that a parent company exerts a decisive influence over its wholly-owned subsidiaries — Possibility of the Commission corroborating the presumption with facts to demonstrate the actual exercise of decisive influence — Joint undertaking held by two parent companies (Art. 101 TFEU) (see paras 52-61, 65, 66)

2. Appeals — Grounds — Plea directed against a superfluous ground — Invalid plea in law — Rejection (see paras 62, 63, 75, 76)

3. Appeals — Grounds — Mistaken assessment of the facts — Inadmissibility — Review by the Court of the assessment of the facts and evidence — Possible only where the clear sense of the evidence has been distorted (Art. 256(1) TFEU; Statute of the Court of Justice, Art. 58, first para.) (see paras 71-73)

4. Appeals — Grounds — Plea submitted for the first time in the context of the appeal — Inadmissibility (Art. 256(1) TFEU; Statute of the Court of Justice, Art. 58, first para.; Rules of Procedure of the Court of Justice, Art. 170(1)) (see para. 82)

Re:

Appeal against the judgment of the General Court (Seventh Chamber) of 2 February 2012 in Case T‑77/08 The Dow Chemical Company v Commission in which that Court dismissed an action for the partial annulment 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/F/38.629 — Chloroprene Rubber) concerning a cartel on the market for chloroprene rubber in the European Economic Area (EEA), relating to market-sharing and price-fixing, and, in the alternative, a reduction in the amount of the fine imposed on the applicant — Joint venture — Imputability of the unlawful conduct.

Operative part:

The Court:

1. Dismisses the appeal;