On 1 September 2010, the Austrian Federal Competition Authority (“AFCA”) applied to the Court of Justice of the European Union for the imposition of fines or a finding of an infringement against sugar producers on account of alleged territorial agreements relating to the sale of industrial sugar in Austria.
AFCA had started investigations after receiving information from an involved company, which subsequently cooperated under the leniency programme.
On 18 February 2014, the German Bundeskartellamt imposed fines on three major German sugar producers because of the impact their conduct has had in Germany.
On 15 May 2019, the Vienna Higher Regional Court sitting as the Cartel Court dismissed AFCA’s application in the first instance. In August 2019, AFCA appealed against this decision to the Supreme Court of Justice sitting as the Supreme Cartel Court and, in the alternative, recommended preliminary ruling proceedings.
The issue, in AFCA’s view, is the basic understanding of the cooperation mechanisms among competition authorities according to Council Regulation (EC) No 1/2003 and, consequently, the effectiveness of the enforcement of Union law (cf. also AFCA’s press releases of 14 August 2019 and 2 April 2020).
Preliminary ruling proceedings
The Supreme Cartel Court referred the following questions to the European Court of Justice (“ECJ”) for a preliminary ruling (16Ok2/19h):
1. Is the third criterion established in the Court of Justice’s competition case-law on the applicability of the non bis in idem principle, namely that conduct must concern the same protected legal interest, applicable even where the competition authorities of two Member States are called upon to apply the same provisions of EU law (here: Article 101 TFEU), in addition to provisions of national law, in respect of the same facts and in relation to the same persons?
If this question is answered in the affirmative:
2. Does the same protected legal interest exist in such a case of parallel application of European and national competition law?
3. Furthermore, for the application of the non bis in idem principle, is it of significance whether the first decision of the competition authority of a Member State to impose a fine took account, from a factual perspective, of the effects of the competition law infringement on the other Member State whose competition authority only subsequently took a decision in the competition proceedings conducted by it?
4. Do proceedings in which, owing to the participation of a party in the national leniency programme, only a declaratory finding of that party’s infringement of competition law can be made also constitute proceedings governed by the non bis in idem principle, or can such a mere declaratory finding of the infringement be made irrespective of the outcome of previous proceedings concerning the imposition of a fine (in another Member State)?
Judgment of the Court
The ECJ’s judgment was published on 22 March 2022 (Case C‑151/20 Nordzucker and others).
In its judgment the Grand Chamber of the Court pointed out that the application of the non bis in idem principle was subject to a twofold condition, namely:
- first, that there must be a prior final decision (the “bis” condition) and
- secondly, that the prior decision and the subsequent proceedings or decisions concern the same conduct (the “idem” condition).
The Court goes on to state that the relevant criterion for the purposes of assessing the existence of the same offence (“idem”) in competition law is identity of the material facts. This is understood as the existence of a set of concrete circumstances which are inextricably linked together and which have resulted in the acquittal or final conviction of the person concerned.
The law may however provide for a limitation of the exercise of a fundamental right – such as guaranteed by the non bis in idem principle –, provided it respects the essence of those rights, it is necessary and genuinely meets objectives of general interest recognised by the European Union.
In accordance with the Court’s considerations, the non bis in idem principle does not preclude an undertaking from having proceedings brought against it by the competition authority of a Member State and from being fined for an infringement on the basis of conduct which has had an anticompetitive object or effect in the territory of that Member State, even though that conduct has already been referred to by a competition authority of another Member State, in a final decision adopted by that authority.
That decision must however not be based on a finding of an anticompetitive object or effect in the territory of the first Member State. If this is the case, the second competition authority that initiates proceedings in relation to this object or effect breaches the non bis in idem principle.
With regard to the application of the leniency programme, the Court stated that proceedings for the enforcement of competition law, in which, owing to the participation of the party concerned in the national leniency programme, only a declaration of the infringement of that law can be made, fall within the scope of the non bis in idem principle.
The Judgment of the Court (Grand Chamber) can be downloaded from the Curia website:
The Federal Competition Authority welcomes the fact that the Court has established legal clarity.