Request for a preliminary ruling from the Oberlandesgericht Wien (Austria) lodged on 3 January 2023 — FL und KM Baugesellschaft m.b.H. & Co. KG, S AG

(Case C-2/23, FL und KM Baugesellschaft and S)

(2023/C 127/20)

Language of the case: German

Referring court

Oberlandesgericht Wien

Parties to the main proceedings

Appellants: FL und KM Baugesellschaft m.b.H. & Co. KG, S AG

Other party: Zentrale Staatsanwaltschaft zur Verfolgung von Wirtschaftsstrafsachen und Korruption

Questions referred

Question 1:

Are the provisions of EU competition law — in particular Directive 2014/104/EU (1) and Article 6(6) and (7) and Article 7(1) thereof, as well as Directive 2019/1/EU (2) and Article 31(3) thereof — to be interpreted as meaning that the protection laid down therein of leniency statements and settlement submissions and information obtained from them has absolute effect, applying also to prosecution authorities (public prosecutors and criminal courts), so that leniency statements and settlement submissions may not be added to the file in criminal proceedings and used as the basis for further enquiries?

Question 2:

Are the provisions of EU competition law — in particular Directive 2014/104 and Article 6(6) and (7) and Article 7(1) thereof, as well as Directive 2019/1 and Article 31(3) thereof — to be interpreted as meaning that the absolute protection of leniency statements and settlement submissions (within the meaning of Question 1) also covers documents and information obtained therefrom which the person lodging a leniency statement or settlement submission has presented in order to explain, specify in detail and prove the content of the leniency statement or settlement submission?

Question 3:

Are the provisions of EU competition law — in particular Directive 2014/104 and Article 6(6) and (7) and Article 7(1) thereof, as well as Directive 2019/1 and Article 31(3) thereof — to be interpreted as meaning that the protection laid down therein of leniency statements, settlement submissions (and documents within the meaning of Question 2) and information obtained therefrom has absolute effect, applying in criminal proceedings, on the one hand, also against accused persons who are not the authors of the respective leniency statement or settlement submission and, on the other hand, against other participants in the criminal proceedings (in particular injured parties asserting claims under civil law), so that accused persons and injured parties are not to be permitted to inspect leniency statements, settlement submissions and the documents presented in that connection and information obtained therefrom?

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(1)  Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union (OJ 2014 L 349, p. 1).

(2)  Directive (EU) 2019/1 of the European Parliament and of the Council of 11 December 2018 to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market (OJ 2019 L 11, p. 3).