CJEU, 9th chamber, September 26, 2013, No C-172/12 P

Judgment

1        By its appeal, EI du Pont de Nemours and Company (‘EI DuPont’) asks the Court, first, to set aside the judgment of the General Court of the European Union of 2 February 2012 in Case T‑76/08 (‘the judgment under appeal’), by which the General Court dismissed EI DuPont’s application for the 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/F/38.629 – Chloroprene Rubber) (‘the decision of 5 December 2007’), as amended by Commission Decision C(2008) 2974 final of 23 June 2008 (‘the decision at issue’), and, secondly, to annul the fine imposed on it by that decision.

 The background to the dispute and the decision at issue

2        The facts of the dispute, as set out in paragraphs 2 to 27 of the judgment under appeal, may be summarised as follows.

3        EI DuPont is the ultimate parent company of the DuPont group and has its headquarters in the United States. DuPont Performance Elastomers LLC (‘DPE LLC’) is a wholly-owned subsidiary of EI DuPont, and DuPont Performance Elastomers SA (‘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 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 became a wholly-owned subsidiary of EI DuPont and was renamed DPE LLC. DPE LLC’s regional office for Europe is DPE SA, a wholly-owned subsidiary of DPE LLC

4        On 27 March 2003 the Commission of the European Communities carried out inspections at the premises of, inter alia, Dow Deutschland Inc. On 21 November 2003, DDE applied for leniency in accordance with the Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3).

5        On 13 March 2007, the European Commission sent a statement of objections to 12 undertakings, including EI DuPont. On 5 December 2007, the Commission adopted an initial decision in which it took the view that, between 1993 and 2002 several producers of CR had participated in a single and continuous infringement of Article 81 EC and Article 53 of the European Economic Area Agreement of 2 May 1992 (OJ 1994, L 1, p. 3), covering the entire territory of the European Economic Area (EEA), consisting of agreements and concerted practices aimed at agreeing upon the allocation and the stabilisation of markets, market shares and sales quotas for CR, coordinating and implementing several price increases, agreeing upon minimum prices, allocating customers and exchanging competitively sensitive information. Those producers met on a regular basis several times a year in bilateral, trilateral and multilateral meetings.

6        In that decision the Commission imputed liability for the cartel, in particular, to EI DuPont, DPE LLC, DPE SA and Dow, and ordered those undertakings to bring that infringement immediately to an end in so far as they had not already done so, and to refrain immediately from any restrictive practice having the same or similar object or effect.

7        In determining the basic amount of the fines, the 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 Guidelines on the method of setting fines’). It took into account a proportion of the value of the sales of CR made by each undertaking within the EEA during 2001, which was the last full year of participation in the infringement, and multiplied it by the number of years of infringement.

8        In order to determine the proportion of the value of sales to be taken into account, the Commission found that the horizontal market-sharing and price-fixing agreements were by their very nature among the most serious restrictions of competition. In that regard, the 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. Consequently, the Commission determined the proportion of the sales volumes of each undertaking involved at 21%.

9        As the participation in the infringement had lasted for nine years for EI DuPont, and six years and one month for DPE LLC, DPE SA and Dow, the Commission, in application of point 24 of the Guidelines on the method of setting fines, multiplied the starting amounts of the fines determined by reference to the value of sales by nine for EI DuPont, and by six and a half for DPE LLC, DPE SA and Dow.

10      In order to deter the undertakings from participating in an agreement relating to market-sharing or horizontal price-fixing agreements such as those in issue in the present case, and taking into account in particular the factors referred to in the two preceding paragraphs, the Commission, in application of point 25 of the Guidelines on the method of setting fines, included in the basic amount of the fines an additional amount of 20% of the value of sales.

11      Furthermore, the 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 from 1 April 1996 to 13 May 2002. In addition, it found that, as the successors to DDE, the entities DPE LLC and DPE SA should also be held jointly and severally liable for DDE’s conduct during that period, because, after the infringement was ended, they took over its activities on the CR market.

12      In the light of those factors, the basic amount of the fine to be imposed on EI DuPont was fixed at EUR 79 million, of which EUR 59 million was to be paid jointly and severally with DPE LLC, DPE SA and Dow.

13      As regards the adjustments to the basic amounts of the fines for aggravating circumstances, no increase was applied to the fine to be imposed on EI DuPont, since no aggravating circumstance was found to exist in its case.

14      The Commission also applied a specific increase to the fines of certain addressees of the decision of 5 December 2007 in order to ensure that the fines would have a sufficiently deterrent effect, taking into account those undertakings’ turnovers beyond the goods and services to which the infringement related. Thus, no specific increase was applied to the basic amount of the fine to be imposed on EI DuPont. However, the basic amount of the fine to be imposed on Dow was multiplied by 1.1. Therefore, the sum to be paid jointly and severally with Dow was increased to EUR 64.9 million.

15      With regard to the application of the notice on immunity from fines and reduction of fines in cartel cases, the Commission granted a reduction in the basic amount of the fine of 25% to EI DuPont, DPE LLC, DPE SA and Dow.

16      The amount of the fine imposed on EI DuPont was therefore set at EUR 59.25 million, of which EUR 44.25 million was to be paid jointly and severally with DPE LLC and DPE SA, and EUR 48.675 million was to be paid jointly and severally with Dow.

17      Finally the Commission adopted the amending decision of 23 June 2008, which was sent to EI DuPont, DPE LLC, DPE SA and Dow. 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. In that decision, the Commission also corrected a factual error in the calculation of the amount of the fine to be paid by EI DuPont, in so far as that amount was the result of the application of the coefficient multiplier of 10% for deterrence to the fine imposed only on Dow.

 The procedure before the General Court and the judgment under appeal

18      By application lodged at the Registry of the General Court on 15 February 2008, EI DuPont brought an action for annulment of Article 1(b) of the decision of 5 December 2007, in so far as it concluded that EI DuPont participated in the infringement, and of Article 2(b) of that decision requiring it to pay a fine, and, in the alternative, a reduction of the amount of the fine imposed on it by that decision. In that regard, it must be noted that in its reply EI DuPont reformulated its claims, pleas in law and arguments in the light of the amendments made by the Commission to the decision of 5 December 2007 by its amending decision of 23 June 2008. Therefore, that application was regarded as being directed against the decision of 5 December 2007, as amended; that is to say, the decision at issue.

19      In support of its action, EI DuPont raised six pleas in law. The first three, the only grounds which are relevant for the purposes of this appeal, alleged: (i) incorrect imputation of the infringement to EI DuPont during the period from 1 April 1996 to 13 May 2002 (‘the DDE period’); (ii) breach of the rules on limitation; and (iii) lack of a legitimate interest on the Commission’s part in addressing a decision to EI DuPont.

20      By its first plea, EI DuPont criticised in particular the Commission for finding that it had participated in the cartel during the DDE period and for wrongly holding it jointly and severally liable for DDE’s participation in that cartel during that period. Specifically, the Commission did not prove that EI DuPont had exercised decisive influence over DDE.

21      In that regard, the General Court pointed out, in paragraph 64 of the judgment under appeal, that EI DuPont did not contest its participation in a cartel in breach of Article 81 EC between 13 May 1993 and 31 March 1996. Similarly, it is clear from paragraph 64 that EI DuPont also did not contest DDE’s involvement in a cartel in breach of Article 81 EC during the DDE period, or the fact that that infringement was imputed to DPE LLC and DPE SA as the successors in title to DDE.

22      In paragraphs 70 to 73 of the judgment under appeal, the General Court reviewed the tests used by the Commission in the decision at issue to demonstrate that DDE’s parent companies did in fact exercise decisive influence over its conduct on the CR market.

23      The General Court stated in paragraph 74 of the judgment under appeal that, in the light of all the economic, legal and organisational links between EI DuPont and DDE, the Commission did not err in finding that EI DuPont, as one of DDE’s two parent companies, had exercised decisive influence over its conduct on the CR market. 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 during the DDE period.

24      In paragraphs 76 to 82 of the judgment under appeal, the General Court dismissed EI DuPont’s arguments which could have called into question its finding concerning EI DuPont’s exercise of decisive influence over DDE. Consequently, in paragraph 83 of the judgment under appeal, the General Court dismissed the first plea in law.

25      By its second plea in law, EI DuPont alleged that the Commission infringed the rules on limitation periods by imposing on it a fine for the period from 13 May 1993 to 31 March 1996 (the period before the DDE period). It argued that imposing such a fine, in the circumstances of this case, contravened the principles of legal certainty and legitimate expectations as the limitation period of five years expired on 31 March 2001.

26      In dismissing that plea as unfounded, the General Court stated in paragraphs 87 and 88 of the judgment under appeal that it was clear from the analysis of the first plea that the Commission had rightly taken the view that EI DuPont should be held jointly and severally liable for DDE’s conduct during the DDE period. In addition it stated that the applicants, including EI DuPont, had not contested the characterisation of the infringement committed between 13 May 1993 and 13 May 2002 as single and continuous. The General Court therefore concluded that, contrary to what the applicants argued, the infringement committed by DDE did not end on 31 March (or 1 April) 1996 and that the Commission could therefore impose a fine on EI DuPont for the entire period during which that infringement was committed, including the period before the DDE period.

27      By its third plea, EI DuPont claimed that, since the right of the Commission to impose a fine was time-barred, the Commission had to demonstrate that it had a legitimate interest in adopting a decision against EI DuPont.

28      The third plea was dismissed as unfounded in paragraphs 91 to 93 of the judgment under appeal. The General Court held in particular in paragraph 92 of that judgment that the Commission could impose a fine on EI DuPont for the entire period in which the infringement was committed, including the period before the DDE period. Therefore, in the opinion of the General Court, the Commission did not have to demonstrate that it had a legitimate interest in adopting a decision against EI DuPont.

29      Having rejected the fourth to sixth pleas in law as being similarly unfounded, the General Court dismissed the action in its entirety.

 Forms of order sought

30      EI DuPont claims that the Court of Justice should:

–        set aside the judgment under appeal; and

–        order the Commission to pay the costs.

31      The Commission contends that the Court of Justice should:

–        dismiss the appeal;

–        in the alternative, dismiss the application for annulment of the decision at issue; and

–        order EI DuPont to pay the costs of both these proceedings and those before the General Court.

 The appeal

32      EI DuPont puts forward three grounds in support of its appeal. By the first ground of appeal, it claims that the General Court erred in law in imputing to it the infringement committed by DDE for the DDE period and in relation to its joint and several liability with Dow. By the second ground of appeal, it contests the finding in the judgment under appeal that the Commission was not prevented, on account of the limitation period, from imposing fines on EI DuPont for the period before the DDE period; that is to say, from 13 May 1993 to 31 March 1996. The third ground of appeal alleges an error of law committed by the General Court in that it did not find that the Commission had failed to demonstrate that it had a legitimate interest in taking a decision against EI DuPont.

 The first ground of appeal: error of law committed by the General Court in that it imputed the infringement to EI DuPont and held it jointly and severally liable with Dow

 Arguments of the parties

33      By its first ground of appeal, EI DuPont criticises the General Court, first, for having stated in paragraph 74 of the judgment under appeal that ‘as one of DDE’s parent companies’ EI DuPont had exercised decisive influence over DDE’s conduct on the CR market, so that EI DuPont itself and DDE were part of a single undertaking for the purposes of Article 81 EC, and, secondly, for having held EI DuPont jointly and severally liable for DDE’s conduct during the DDE period. The General Court therefore erred in law in misinterpreting the term ‘single undertaking’ for the purposes of Article 81 EC.

34      Specifically, EI DuPont states that DDE was a full-function joint venture with its own legal personality, separate from that of its parent companies. Therefore, it did not have the capacity to exercise decisive influence over DDE. In that regard, EI DuPont submits that for a parent company to be liable for the infringements of the rules of competition law in the European Union (‘competition law’) committed by a subsidiary, it must actually exercise decisive influence over that subsidiary on the date the infringements were committed. However, the General Court sought to extend the notion of a parent company beyond the normal links which tie it to its subsidiary without taking into account the fact that neither EI DuPont nor Dow participated directly in that infringement. In doing so, the General Court erred in law by failing to observe the principle of the personal responsibility of the economic entity which committed the infringement.

35      In addition EI DuPont claims that the General Court failed to take account, in paragraphs 75 and 78 of the judgment under appeal, of the distinction drawn by competition law between joint control of a full-function joint venture and exclusive control exercised by a parent company over its wholly-owned subsidiaries. According to EI DuPont the first type of control is characterised by the fact that there is a possibility of a deadlock situation resulting from the power of two or more parent companies to veto strategic decisions, while the second type of control confers on a specific shareholder the power to determine the strategic decisions in an undertaking.

36      In that regard, EI DuPont maintains that neither it nor Dow exercised ‘exclusive’ decisive influence over DDE. The fact that they ‘jointly’ exercised decisive influence in accordance with Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (‘the EC Merger Regulation’) (OJ 2004 L 24, p. 1) does not mean that one or other may incur liability under Article 81 EC as a result of the conduct of the joint venture. The General Court therefore wrongly asserted in paragraph 79 of the judgment under appeal that it formed ‘a single undertaking’ with Dow and DDE for the purposes of competition law. According to EI DuPont, that assertion of the General Court led it to apply competition law in a misleading and inconsistent manner.

37      The Commission considers that the first ground of appeal is in part inadmissible, and must in any event be dismissed as unfounded.

 Findings of the Court

38      As regards the admissibility of the first ground of appeal, it must be stated that, contrary to what the Commission contends, EI DuPont does not dispute the General Court’s findings of fact, but the inferences in law drawn by the General Court from those findings in relation to DDE’s lack of autonomy in order to determine the actual exercise of decisive influence. It follows that this ground of appeal is admissible.

39      With regard to the substance, EI DuPont claims, in essence, that by confirming in paragraph 74 of the judgment under appeal that EI DuPont had exercised decisive influence over DDE’s conduct on the CR market, the General Court erred in law with regard to the imputation of the infringement jointly and severally with Dow during the DDE period.

40      In that regard, it is clear from paragraphs 74 and 79 of the judgment under appeal that the General Court held that EI DuPont formed a single undertaking with DDE by reason of the decisive influence which it exercised over DDE’s conduct on that market.

41      It should be pointed out first of all that, in accordance with the settled case-law of the Court of Justice, the conduct of a subsidiary can be imputed to its parent company, in particular where, although it has separate legal personality, that subsidiary does not decide independently on its own conduct on the market, but carries out, in all material respects, the instructions given to it by the parent company, regard being had in particular to the economic, organisational and legal links between those two legal entities (Case C‑97/08 P Akzo Nobel and Others v Commission [2009] ECR I‑8237, paragraphs 58 and 72, and Joined Cases C‑628/10 P and C‑14/11 P Alliance One International and Standard Commercial Tobacco v Commission and Commission v Alliance One International and Others [2012] ECR I‑0000, paragraph 43).

42      In such a situation, because the parent company and its subsidiary form a single economic unit and therefore form a single undertaking for the purposes of Article 81 EC, the Commission may address a decision imposing fines to the parent company, without having to establish the personal involvement of the latter in the infringement (see Akzo Nobel and Others v Commission, paragraph 59, and Alliance One International and Standard Commercial Tobacco v Commission and Commission v Alliance One International and Others, paragraph 44).

43      The Court of Justice has also stipulated that account must be taken of all the relevant factors relating to the economic, organisational and legal links which tie the subsidiary to the parent company, which may vary from case to case and cannot therefore be set out in an exhaustive list (see, to that effect, Akzo Nobel and Others v Commission, paragraph 74, and Case C‑521/09 P Elf Aquitaine v Commission [2011] ECR I‑8947, paragraph 58).

44      In paragraphs 58 to 60 of the judgment under appeal, the General Court therefore cited the case-law setting out the test for imputing to a parent company the competition infringement committed by its subsidiary. It rightly found that, in order to be able to impute the conduct of a subsidiary to the parent company, the 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).

45      It should be noted in that regard that the rule that it is necessary to check whether the parent company actually exercised decisive influence over its subsidiary applies only where the subsidiary is not wholly owned by its parent company. According to the settled case-law of the Court of Justice, where the entire capital of the subsidiary is owned, there is no longer any requirement to carry out such a check since, in those circumstances, there is a presumption of decisive influence on the part of the parent company, which has the burden of rebutting that presumption (see Alliance One International and Standard Commercial Tobacco v Commission and Commission v Alliance One International and Others, paragraphs 46 and 47 and the case-law cited).

46      More specifically, with regard to the claim that the General Court misconstrued the term ‘a single undertaking’, it must be stated that, in paragraph 58 of the judgment under appeal, the General Court pointed out that, according to the settled case-law of the Court of Justice, in competition law the term undertaking must be understood as designating an economic unit for the purposes of the subject-matter of the agreement in question, even if in law that economic unit consists of several persons, natural or legal (Case‑170/83 Hydrotherm Gerätebau [1984] ECR 2999, paragraph 11; Case C‑217/05 Confederación Española de Empresarios de Estaciones de Servicio [2006] ECR I‑11987, paragraph 40; and Akzo Nobel and Others v Commission, paragraph 55).

47      Where two parent companies each have a 50% shareholding in the joint venture which committed an infringement of the rules of competition law, it is only for the purposes of establishing liability for participation in the infringement of that law and only in so far as the Commission has demonstrated, on the basis of factual evidence, that both parent companies did in fact exercise decisive influence over the joint venture, that those three entities can be considered to form a single economic unit and therefore form a single undertaking for the purposes of Article 81 EC.

48      It must therefore be held that, as regards the verification process of the assessment carried out by the Commission, the General Court did not misconstrue the term ‘a single undertaking’.

49      EI DuPont, in support of its first ground of appeal, also relies on other arguments, set out in paragraphs 34 and 35 above: first, that it cannot exercise decisive influence over DDE bearing in mind that DDE has separate legal personality from that of the parent companies; and secondly, that, since the joint control exercised by parent companies over their full-function joint venture gives them only a negative power to block the latter’s strategic decisions, that control cannot imply the existence of the parent company’s decisive influence over the subsidiary. In that regard, it must be noted that the General Court did not find the existence of EI DuPont’s decisive influence over the subsidiary solely on the basis of the possibility that the parent companies could exercise joint control over that subsidiary, but that it relied on its own assessment of the economic, organisational and legal factors which tied DDE to its two parent companies, as determined by the Commission in its decision of 5 December 2007.

50      In that regard, suffice it to state that, since the Commission found that Dow exercised a decisive influence over DDE’s conduct on the basis of factors which, unless they have been distorted, cannot be called into question on appeal, those claims must be held to be unfounded.

51      As regards EI DuPont’s argument, set out in paragraph 36 above, that the fact that parent companies are deemed to exercise joint control in accordance with the EC Merger Regulation does not mean that they incur liability under Article 81 EC by reason of the conduct of the joint venture, it must be pointed out that, as is clear from the case-law cited in paragraph 43 above, the evidence of such influence must be assessed having regard to all the economic, organisational and legal links between the subsidiary and the parent company.

52      In this case the General Court concluded from all the evidence, in particular the control exercised by DDE’s two parent companies over its strategic business decisions, that those companies did in fact exercise decisive influence. Accordingly, it rightly pointed out in paragraph 78 of the judgment under appeal that the autonomy which a joint venture enjoys within the meaning of Article 3(4) of the EC Merger Regulation does not mean that that joint venture also enjoys autonomy in relation to adopting strategic decisions, and that it is therefore not under the decisive influence of its parent companies for the purposes of Article 81 EC.

53      Consequently, it must be stated that, contrary to what EI DuPont claims, the General Court’s finding in paragraphs 78 and 79 of the judgment under appeal relating to the single nature of the undertaking in the light of competition law, is not incompatible with the EC Merger Regulation, and therefore does not lead to a misleading and inconsistent application of competition law.

54      It follows that the first ground relied on by EI DuPont in support of its appeal must be rejected as unfounded.

 The second ground of appeal: error of law committed by the General Court in that it held that the Commission was not prevented, on account of the limitation period, from imposing fines on EI DuPont for the period from 13 May 1993 to 1 April 1996

 Arguments of the parties

55      EI DuPont claims that, in the absence of any proof that the DuPont group was involved in the cartel after the activities relating to CR were transferred to DDE, the infringement committed by undertakings within that group ended on 1 April 1996; therefore, on account of the limitation period, the Commission could not impose a fine on EI DuPont. It would be contrary to the principal of legal certainty if the five-year limitation period, under Council Regulation (EEC) No 2988/74 of 26 November 1974 concerning limitation periods in proceedings and the enforcement of sanctions under the rules of the European Economic Community relating to transport and competition (OJ 1974 L 319, p. 1), were not allowed to run in its favour.

56      The Commission contends that that ground is inadmissible, by arguing in particular that it is based on arguments already raised before the General Court. It considers that, in any event, the ground must be rejected as manifestly unfounded.

 Findings of the Court

57      It must be stated at the outset that the plea of inadmissibility raised by the Commission in relation to the second ground relied on by EI DuPont in support of its appeal, alleging that EI DuPont merely reproduced the arguments put before the General Court, cannot be upheld.

58      In that regard it must be noted that, where a party challenges the interpretation or application of European Union law by the General Court, the points of law examined at first instance may be discussed again in the course of an appeal. Indeed, if a party could not base its appeal on pleas in law and arguments already relied on before the General Court, an appeal would be deprived of part of its purpose (Case C-234/02 P European Ombudsman v Lamberts [2004] ECR I‑2803, paragraph 75, and Joined Cases C-514/07 P, C-528/07 P and C-532/07 P Sweden and Others v API and Commission [2010] ECR I-8533, paragraph 116).

59      With regard to the substance, it must be pointed out that that ground of appeal is based on the assumption that the first ground of appeal would be upheld in the absence of any proof that the DuPont group was involved in the cartel during the DDE period. However, it is clear from the analysis of the first ground of appeal that the reasoning followed by the General Court in paragraphs 64 to 83 of the judgment under appeal is not vitiated by any error of law.

60      Consequently, the General Court did not err in law by holding in paragraph 87 of the judgment under appeal that the limitation period had not expired when the Commission imposed the fine on EI DuPont.

61      The second ground relied on by EI DuPont in support of its appeal must therefore be rejected as unfounded.

 The third ground of appeal: error of law committed by the General Court in that it did not find that the Commission had failed to demonstrate that it had a legitimate interest in taking a decision against EI DuPont

 Arguments of the parties

62      EI DuPont alleges that the General Court disregarded the case-law resulting from the judgment in Joined Cases T‑22/02 and T‑23/02 Sumitomo Chemical and Sumika Fine Chemicals v Commission [2005] ECR II‑4065. In that regard, EI DuPont claims that the Commission failed to demonstrate its legitimate interest in adopting a decision against a participant in a cartel because the right to impose a fine on it was time-barred.

63      The Commission contends that the third ground of appeal is inadmissible as it does not specifically identify the error of law with which the judgment under appeal is vitiated and merely reproduces the pleas and arguments that were already raised before the General Court. In any event, it submits that the ground of appeal should be rejected as manifestly unfounded.

 Findings of the Court

64      As regards the admissibility of the third ground of appeal, it must be pointed out that, as is clear from the settled case-law of the Court of Justice cited in paragraph 58 above, this ground must be declared admissible because, through it, EI DuPont alleges that the General Court incorrectly interpreted European Union law.

65      With regard to the substance, the third ground is also based on the assumption that the first and second grounds relied on in support of this appeal would be upheld. It amounts to a claim that, since the Commission could not impose a fine on EI DuPont on account of the limitation period, it had to demonstrate a legitimate interest in adopting a decision against EI DuPont.

66      Since the first and second grounds of appeal have been rejected, it necessarily follows that the third ground of appeal must be rejected as unfounded.

67      As none of the grounds relied on by EI DuPont in support of its appeal can be upheld, the appeal must be dismissed in its entirety.

 Costs

68      In accordance with the first paragraph of Article 184(2) of the Rules of Procedure, where the appeal is unfounded, the Court of Justice shall make a decision as to costs. Under Article 138(1) of those Rules, which apply to the procedure on appeal by virtue of Article 184(1) of those Rules, the unsuccessful party shall be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has applied for costs against EI DuPont, and the latter has been unsuccessful, EI DuPont must be ordered to pay the costs.

On those grounds, the Court (Ninth Chamber) hereby:

1.      Dismisses the appeal;

2.      Orders EI du Pont de Nemours and Company to pay the costs.

[Signatures]