Dow, Dupont Lose EU Top Court Appeal Over Cartel Fine Liability

Dow Chemical Co. and DuPont Co. lost appeals at the European Union’s top court to overturn decisions that fined and held them liable for colluding to fix prices of a synthetic rubber used to make hoses and condoms.

The EU Court of Justice in Luxembourg today rejected the appeals and arguments that the companies’ responsibility for a unit that was part of a joint venture, had been wrongly assessed. The ruling is final.

The European Commission fines against companies including Dow, DuPont and Eni SpA totaled 247.6 million euros ($334.4 million) and were the third in two years against companies in the rubber chemical industry.

Dow, the largest U.S. chemical maker, and DuPont were initially fined a combined 59.3 million euros. The companies were accused of colluding on prices for chloroprene rubber, used in the rubber industry or as latex, from at least 1993 to 2002.

Both companies lost challenges at a lower EU court last year. Dow challenged the EU decision as incorrect for assigning direct liability to the company, instead of limiting its liability for the subsidiary’s actions based on its joint venture with DuPont. Dow Chemical transferred its stake in the joint venture to Wilmington, Delaware-based DuPont in 2005 and it was renamed DuPont Performance Elastomers LLC.

Dow today lost with arguments that it is “impossible for the parent companies of a joint venture” to exercise decisive influence and to be held liable in a cartel case.

The EU court said Dow’s claims are “unfounded” because the commission’s had decided that the company had exercised a decisive influence over the unit “on the basis of factors which, unless they have been distorted, cannot be called into question on appeal.”

The cases are: C-172/12 P, EI du Pont de Nemours v. Commission; C-179/12 P, Dow Chemical v. Commission.

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