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Industrial sugar cartel: Following the European Court of Justice’s preliminary ruling, the Supreme Cartel Court has allowed the AFCA’s appeal against the applicability of the ne bis in idem principle (Supreme Court of Justice sitting as the Supreme Cartel

The Austrian Federal Competition Authority (AFCA) has won its partial appeal against the Cartel Court’s negative decision in relation to the industrial sugar cartel and the applicability of the ne bis in idem principle. The Supreme Cartel Court (KOG) found in its ruling that sugar producers Nordzucker AG and Südzucker AG engaged in concerted practices and that the setting of the fine imposed on Südzucker AG required further consideration by the first-instance Cartel Court (KG).

After the Cartel Court (KG) had initially rejected AFCA’s application arguing that ne bis in idem applied, the AFCA filed a partial appeal to the KOG . During the appeal procedure the AFCA presented a statement from both the German Bundeskartellamt and the US Department of Justice. The KOG submitted a number of questions to the European Court of Justice (ECJ) in the context of a request for a preliminary ruling ). The ECJ judgment was published on 22 March 2022.

In line with the ECJ references, the KOG has now judged that the ne bis in idem principle did not apply in this case after all since no identity of the material facts existed, with these facts having been found by the German Bundeskartellamt and asserted by the AFCA. Identity did not exist because the Bundeskartellamt had only fined the companies for effects in German territory. The KOG therefore upheld the AFCA’s reasoning, which it had also advocated before the ECJ.

The KOG found additionally that the sugar producers Nordzucker AG and Südzucker AG had engaged in concerted practices in the form of a territorial agreement in 2006, thus breaching the European and Austrian ban on cartels.

With regard to Südzucker AG, the KOG partially dismissed the KG’s negative ruling and referred the case back to the KG for procedural supplement in relation to the setting of the fine since the necessary findings for the criteria needed to set the fine had been lacking. The KOG emphasised, among other points, that only an appropriately high fine has a deterrent effect and that fines in amounts long since common at Union level and in numerous Member States should be imposed in Austria too in order to effectively combat breaches of cartel law.

With regard to the principal witness Nordzucker AG, the KOG confirmed AFCA’s application to the extent that judicial findings without the imposition of a fine are possible in the event of a witness’s involvement in a cartel. The KOG made the respective findings.

Decision 16 Ok 2/22p (German)