Opinion of Advocate General Bobek delivered on 2 September 2021.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• ECLI: ECLI:EU:C:2021:681
• Date: 02 September 2021

Provisional text

OPINION OF ADVOCATE GENERAL

BOBEK

delivered on 2 September 2021(1)

Case C‑151/20

Bundeswettbewerbsbehörde

v

Nordzucker AG,

Südzucker AG,

Agrana Zucker GmbH

(Request for a preliminary ruling from the Oberster Gerichtshof (Supreme Court, Austria))

(Reference for a preliminary ruling – Competition – Conduct investigated by two national competition authorities – Principle ne bis in idem – Simultaneous application of EU and national competition law – Identity of the protected legal interest – Territorial effects of a decision of a national competition authority – Leniency programme)

I. Introduction

1. Nordzucker and Südzucker are two sugar producers. The German national competition authority has found that those two undertakings infringed Article 101 TFEU and German competition law. In the main proceedings, the Austrian national competition authority seeks a declaration that those undertakings have breached Article 101 TFEU and Austrian competition law, while apparently relying on the same facts as those already contained in the German decision.

2. It is in this context that the Oberster Gerichtshof (Supreme Court, Austria) raises questions about the scope of the principle ne bis in idem enshrined in Article 50 of the Charter of the Fundamental Rights of the European Union (‘the Charter’). In essence, does that principle preclude parallel or subsequent competition law proceedings in another Member States for what appears to be, at least in part, the same behaviour?

3. The present case gives rise to two issues in particular. First, what criteria should guide the interpretation of idem for the purposes of ne bis in idem in competition law and, in general, under Article 50 of the Charter? I deal with those issues in detail in my parallel Opinion in bpost. (2) To that extent therefore, this Opinion relies on the analysis already carried out in that Opinion. Second, the specific nature of the present case lies in the need to restate what constitutes the identity of relevant facts for the purposes of the principle ne bis in idem. (3) Above all, the Court is also invited – yet again, one might add – to clarify its understanding of the identity of the protected legal interest. Does the same protected legal interest exist in two sets of national proceedings in which two national competition authorities have applied the same provision of EU competition law, as well as their respective national competition rules?

II. Legal framework

4. Article 50 of the Charter, entitled ‘Right not to be tried or punished twice in criminal proceedings for the same criminal offence’, states that: ‘No one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law.’

5. Article 101 TFEU prohibits as incompatible with the internal market ‘all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the internal market’.

6. Article 3 of Regulation (EC) No 1/2003, (4) entitled ‘Relationship between Articles 81 and 82 of the Treaty and national competition laws’, reads as follows:

‘1. Where the competition authorities of the Member States or national courts apply national competition law to agreements, decisions by associations of undertakings or concerted practices within the meaning of Article 81(1) of the Treaty which may affect trade between Member States within the meaning of that provision, they shall also apply Article 81 of the Treaty to such agreements, decisions or concerted practices. Where the competition authorities of the Member States or national courts apply national competition law to any abuse prohibited by Article 82 of the Treaty, they shall also apply Article 82 of the Treaty.

2. The application of national competition law may not lead to the prohibition of agreements, decisions by associations of undertakings or concerted practices which may affect trade between Member States but which do not restrict competition within the meaning of Article 81(1) of the Treaty, or which fulfil the conditions of Article 81(3) of the Treaty or which are covered by a Regulation for the application of Article 81(3) of the Treaty. Member States shall not under this Regulation be precluded from adopting and applying on their territory stricter national laws which prohibit or sanction unilateral conduct engaged in by undertakings.

3. Without prejudice to general principles and other provisions of Community law, paragraphs 1 and 2 do not apply when the competition authorities and the courts of the Member States apply national merger control laws nor do they preclude the application of provisions of national law that predominantly pursue an objective different from that pursued by Articles 81 and 82 of the Treaty.’

7. Article 5 is entitled ‘Powers of the competition authorities of the Member States’, and states as follows:

‘The competition authorities of the Member States shall have the power to apply Articles 81 and 82 of the Treaty in individual cases. For this purpose, acting on their own initiative or on a complaint, they may take the following decisions:

– requiring that an infringement be brought to an end,

– ordering interim measures,

– accepting commitments,

– imposing fines, periodic penalty payments or any other penalty provided for in their national law.

Where on the basis of the information in their possession the conditions for prohibition are not met they may likewise decide that there are no grounds for action on their part.’

8. Article 13 concerns ‘Suspension or termination of proceedings’:

‘1. Where competition authorities of two or more Member States have received a complaint or are acting on their own initiative under Article 81 or Article 82 of the Treaty against the same agreement, decision of an association or practice, the fact that one authority is dealing with the case shall be sufficient grounds for the others to suspend the proceedings before them or to reject the complaint. The Commission may likewise reject a complaint on the ground that a competition authority of a Member State is dealing with the case.

2. Where a competition authority of a Member State or the Commission has received a complaint against an agreement, decision of an association or practice which has already been dealt with by another competition authority, it may reject it.’

III. Facts, national proceedings and the questions referred

9. Nordzucker and Südzucker are two German sugar manufacturers. Agrana is controlled by Südzucker. It operates sugar factories in Austria and in eastern Europe.

10. For historical reasons, and due to product homogeneity and high transport costs, the German sugar market was divided into the core sales areas of the major German manufacturers. In response to attempts by foreign sugar manufacturers to enter the German market, several meetings took place between the sales directors of Nordzucker and Südzucker from no later than 2004. During those meetings, particular emphasis was placed on the importance of avoiding new competitive pressure by ensuring that German companies did not compete with each other by penetrating their respective traditional core sales areas.

11. Towards the end of 2005 and the beginning of 2006, Agrana established that some of its Austrian customers were purchasing sugar from a Slovakian subsidiary of Nordzucker. During a telephone call of 22 February 2006, Agrana’s managing director informed Südzucker’s sales director of those deliveries and asked him whether he knew anyone at Nordzucker with whom he could discuss the matter. The sales director of Südzucker then called the sales director of Nordzucker. He complained about the deliveries to Austria and implied that that could have consequences for the German market. Nordzucker’s sales director was instructed not to react expressly to that request. However, he then made it clear to the sales manager of Nordzucker’s Slovakian subsidiary that it was not his wish to expand exports to Austria.

12. By decision of 18 February 2014, the Bundeskartellamt (‘the BKA’), the German national competition authority (‘NCA’), imposed a fine of EUR 195 500 000 on Südzucker for, in essence, its failure to comply, in the Federal Republic of Germany, with the prohibition on agreements between competing undertakings which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the internal market. The BKA found that Nordzucker, Südzucker and a third German undertaking had colluded with each other by respecting their core sales areas for industrial and retail sugar. The BKA’s decision also reproduced the content of the abovementioned telephone conversation of 22 February 2006 concerning Austria.

13. The main proceedings commenced after Nordzucker had filed an application for leniency in Austria. The Bundeswettbewerbsbehörde (the Austrian NCA) (‘the BWB’), filed an application before the competent Austrian court seeking, vis-à-vis Nordzucker, a declaratory finding that the latter had infringed Article 101 TFEU and the relevant provisions of national competition law. With respect to Südzucker, the BWB sought the imposition of a fine amounting to EUR 12 460 000 for the period from 1 January 2005 to 21 September 2006. The BWB also sought a further fine amounting to EUR 15 390 000, on account of joint and several liability of Südzucker and Agrana, for the period from 22 September 2006 to 31 October 2008.

14. The national court of first instance rejected that application. It held that the BWB did not have a legitimate interest in seeking a declaratory finding against Nordzucker. That is because Nordzucker is an...