AFCA appealed to the Supreme Cartel Court against this decision in August 2019 and suggested to initiate in eventu a preliminary ruling procedure.
In 2010 AFCA had applied to the Court to have sugar producers fined or declared to be in breach of the law as a result of territorial agreements on the sale of industrial sugar products in Austria. Investigations had been initiated by AFCA after it received information from one of the companies involved in the capacity of principal witness. The companies had agreed not to hinder each other in their respective territories by avoiding aggressive pricing (home-market principle).
The German Bundeskartellamt had imposed fines of some € 280 million on three major German sugar producers on 18 February 2014 because of the impact their conduct has had in Germany.
Due to this decision in Germany, the Austrian Cartel Court applied the principle "ne bis in idem" and refrained from declaring an infringement and imposing a fine.
AFCA appealed to the Supreme Cartel Court against this decision.
In AFCA’s view a 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 needs to be established.
The Supreme Cartel Court referred the following questions to the ECJ for a preliminary ruling (16Ok2/19h)
1. Is the third criterion laid down for application of the ne bis in idem principle in the competition case law of the Court of Justice, i.e. that there must be an identical legal interest protected, also to be applied where the competition authorities of two Member States have been called upon to apply the same European legal standards (in this case Article 101 TFEU) in addition to their national legal standards to the same facts and in relation to the same persons?
2. In such a case of parallel application of both European and national competition law, does this mean that there is an identical legal interest being protected?
3. Additionally, for the purposes of applying the ne bis in idem principle, is it relevant whether an initial decision to impose a fine by the competition authority in one Member State considered the effects in terms of fact of the breach of competition law on the other Member State, the competition authority of which only ruled on the matter subsequently in a competition case of its own?
4. In proceedings in which only a party’s infringement of competition law can be determined because they are in a national leniency programme, are these proceedings also to be governed by the ne bis in idem principle or may such mere determination of an infringement having taken place be made irrespective of the outcome of earlier proceedings relating to the imposition of a fine (in another Member State)?