CJEU - C-151/20 - Nordzucker et al

CJEU - C-151/20 Nordzucker et al
Court:	CJEU
Jurisdiction:	European Union
Relevant Law:	Article 50 CFR
Decided:	22.03.2025
Parties:
Case Number/Name:	C-151/20 Nordzucker et al
European Case Law Identifier:	ECLI:EU:C:2022:203
Reference from:	OGH (Austria)
Language:	24 EU Languages
Original Source:	AG Opinion Judgement
Initial Contributor:	tjk

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English Summary

Facts

In the German sugar market, Nordzucker and Südzucker, together with a third significant producer, had constituted the dominant forces. Each company operated primarily in distinct geographical areas, with the market having been traditionally divided based on the locations of their factories and the associated transport costs. Agrana, a subsidiary of Südzucker, had occupied a prominent position as the principal sugar producer in Austria, operating with a considerable degree of autonomy in the markets it served.

The accession of new Member States to the European Union in 2004 had engendered concerns among German sugar producers regarding increased competitive pressure from entities established in these new Member States. In response to these concerns, representatives from Nordzucker and Südzucker had engaged in a series of meetings beginning in 2004. During these meetings, the parties had agreed not to compete in their traditional core sales areas in order to mitigate the impact of the new competitive pressures.

In late 2005, Agrana had observed that a Slovak subsidiary of Nordzucker had commenced the delivery of sugar to industrial customers in Austria, customers that had heretofore been exclusively supplied by Agrana. Agrana's managing director brought this matter to the attention of Südzucker's sales director. Subsequently, Südzucker's sales director had contacted Nordzucker's sales director to discuss these deliveries and their possible implications for the German sugar market.

In response to these developments, both the German and Austrian competition authorities had initiated investigations.

• In September 2010, the Austrian authority brought an action before the Oberlandesgericht Wien (Higher Regional Court, Vienna, Austria) seeking a declaration that Nordzucker had infringed Article 101 TFEU and the corresponding provisions of Austrian law, and also the imposition of two fines on Südzucker, one of which to be imposed jointly and severally on Agrana. The material evidence relied on by the Austrian authority to establish that those three undertakings had participated in a cartel on the Austrian sugar market included, in particular, the telephone conversation at issue.
• In 2014, the German authority issued a final decision indicating that Nordzucker, Südzucker, and the third German producer had infringed Article 101 TFEU and corresponding provisions of German competition law. The decision had specifically mentioned a telephone conversation from 2006 between the sales directors of Nordzucker and Südzucker, during which the Austrian market had been discussed. As a result of these findings, Südzucker had been fined €195.5 million.

In 2019, the Higher Regional Court in Vienna had dismissed the Austrian authority's action against Nordzucker and Südzucker, noting that imposing a fresh penalty would violate the non bis in idem principle, as the agreement in question had already been subject to a penalty by another national competition authority. The Austrian authority lodged an appeal against this decision with the Austrian Supreme Court (Oberster Gerichtshof), seeking declarations of infringement and appropriate fines against Nordzucker and Südzucker.

In those circumstances the Oberster Gerichtshof (Supreme Court) decided to stay the proceedings and to refer to following questions to the Court of Justice for a preliminary ruling:

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? In the event that 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, is it of significance for the application of the non bis in idem principle 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)?’

Advocate General Opinion

The AG opined, that

1. The applicability of the principle ne bis in idem enshrined in Article 50 CFR relies on the examination of idem defined by the identity of the offender, of the relevant facts, and of the protected legal interest.
2. Whether EU competition law and national competition law protect the same legal interest must be established by examining the specific rules applied. That involves the assessment of whether the national rules at issue depart from the EU rules. Where the competition authorities of two Member States apply Article 101 TFEU and the corresponding provision of national competition law, then they protect the same legal interest.
3. The fact that a national competition authority took into account extraterritorial effects of a given anticompetitive conduct in an earlier decision, provided that it was entitled to do so under national law, is relevant for the examination of the applicability of the principle ne bis in idem in the subsequent proceedings. Article 50 of the Charter prevents a national competition authority or a court from sanctioning anticompetitive conduct which has already been the subject of previous proceedings concluded by a final decision adopted by another national competition authority. That prohibition applies, however, only in so far as the temporal and geographical scope of the subject matter of both proceedings is the same.
4. The principle ne bis in idem enshrined in Article 50 of the Charter applies also in the context of national proceedings that involve the application of a leniency programme and which do not lead to the imposition of a fine.

Holding

The first and third questions

The court held that Article 50 CFR must be interpreted as not precluding an undertaking from having proceedings brought against it by the competition authority of a Member State and, as the case may be, fined for an infringement of Article 101 TFEU and the corresponding provisions of the national competition law, 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 in respect of that undertaking following infringement proceedings under Article 101 TFEU and the corresponding provisions of the competition law of that other Member State, provided that that decision is not based on a finding of an anticompetitive object or effect in the territory of the first Member State.

The fourth question

The court ruled the answer to the fourth question is that Article 50 of the Charter must be interpreted as meaning 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, are liable to be covered by the non bis in idem principle.

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