Case C‑151/20

Bundeswettbewerbsbehörde

v

Agrana Zucker GmbH,

Nordzucker AG

and

Südzucker AG

(Request for a preliminary ruling from the Oberster Gerichtshof)

 Judgment of the Court (Grand Chamber), 22 March 2022

(Reference for a preliminary ruling – Competition – Article 101 TFEU – Cartel prosecuted by two national competition authorities – Charter of Fundamental Rights of the European Union – Article 50 – Non bis in idem principle – Existence of the same offence – Article 52(1) – Limitations to the non bis in idem principle – Conditions – Pursuit of an objective of general interest – Proportionality)

1.        Fundamental rights – Non bis in idem principle – Conditions under which applicable – Duplication of proceedings and penalties of a criminal nature – Criteria for assessment of the criminal nature – Legal classification of the offence under national law, nature of the offence and degree of severity of the penalty incurred

(Charter of Fundamental Rights of the European Union, Art. 50)

(see paragraphs 30, 31)

2.        Fundamental rights – Non bis in idem principle – Conditions under which applicable – Duplication of proceedings and penalties of a criminal nature – Concept – Duplication of proceedings under competition law seeking the imposition of a fine or simply a declaration of infringement – Included

(Charter of Fundamental Rights of the European Union, Art. 50)

(see paragraphs 32, 60-67)

3.        Fundamental rights – Non bis in idem principle – Conditions under which applicable – Existence of a prior final decision – Criteria for assessment – Final decision given following a determination as to the merits of the case

(Charter of Fundamental Rights of the European Union, Art. 50)

(see paragraphs 34, 35)

4.        Fundamental rights – Non bis in idem principle – Conditions under which applicable – Existence of the same offence – Criterion for assessment – Identity of the material facts – Cartel prosecuted by two national competition authorities – Assessment of the identity of the facts in the light of the territory, product market and period the subject of the proceedings instituted by those authorities

(Charter of Fundamental Rights of the European Union, Art. 50)

(see paragraphs 38-48)

5.        Fundamental rights – Charter of Fundamental Rights of the European Union – Limitation of the exercise of the rights and freedoms enshrined in the Charter – Limitation of the non bis in idem principle – Conditions – Pursuit of an objective of general interest – Cartel prosecuted by two national competition authorities – Duplication of proceedings concerning identical aspects of the same unlawful conduct – Not permissible

(Charter of Fundamental Rights of the European Union, Arts 50 and 52(1))

(see paragraphs 49-57)

Résumé

Nordzucker AG and Südzucker AG are two German sugar producers which, together with a third major producer, dominate the German sugar market. That market was traditionally divided into three main geographical areas, each controlled by one of those three major producers.

Agrana Zucker GmbH (‘Agrana’), which is a subsidiary of Südzucker, is the main sugar producer in Austria.

From no later than 2004, Nordzucker and Südzucker agreed not to compete with each other by penetrating their traditional core sales areas. It was in that context that, at the beginning of 2006, Südzucker’s sales director called Nordzucker’s sales director to complain about deliveries of sugar on the Austrian market by a Slovak subsidiary of Nordzucker, suggesting that this could have consequences on the German sugar market (‘the 2006 telephone conversation’).

In order to benefit from the national leniency programmes, Nordzucker subsequently warned both the Bundeskartellamt (Federal Competition Authority, Germany) and the Bundeswettbewerbsbehörde (Federal Competition Authority, Austria) of its participation in an agreement on the German and Austrian sugar markets. Those two authorities initiated investigation procedures at the same time.

In 2014, the German competition authority found, by a decision which has become final, that Nordzucker, Südzucker and the third German producer had participated in an anticompetitive agreement in breach of Article 101 TFEU and the corresponding provisions of German law, and, in particular, imposed a fine of EUR 195 500 000 on Südzucker. That decision also reproduces the content of the 2006 telephone conversation concerning the Austrian sugar market.

By contrast, the Austrian competition authority’s application seeking, first, a declaration that Nordzucker, Südzucker and Agrana had infringed Article 101 TFEU and the corresponding provisions of Austrian law and, secondly, the imposition of two fines on Südzucker, one of which to be imposed jointly and severally on Agrana, was dismissed by the Oberlandesgericht Wien (Higher Regional Court, Vienna, Austria).

The Austrian competition authority brought an appeal against that decision before the Oberster Gerichtshof (Supreme Court, Austria), the referring court. In that context, the referring court is unsure whether the non bis in idem principle, enshrined in Article 50 of the Charter of Fundamental Rights of the European Union (‘the Charter’), precludes it from taking account of the 2006 telephone conversation in the proceedings pending before it, since that conversation was expressly referred to in the German competition authority’s decision of 2014. That court is also unsure whether, in the light of the Court of Justice’s case-law, the non bis in idem principle applies in proceedings finding an infringement, which, owing to an undertaking’s participation in a national leniency programme, do not result in the imposition of a fine.

In answer to those questions, the Court, sitting as the Grand Chamber, clarifies the relationship with the non bis in idem principle in parallel or successive proceedings under competition law in respect of the same anticompetitive conduct in several Member States.

Findings of the Court

The Court begins by recalling that the non bis in idem principle, as enshrined in Article 50 of the Charter, prohibits a duplication both of proceedings and of penalties of a criminal nature, for the purposes of that article, as regards the same acts and against the same person.

In competition law matters, that principle precludes, specifically, an undertaking’s being found liable or the bringing of proceedings against it afresh on the grounds of anticompetitive conduct for which it has been penalised or declared not to be liable by a prior decision that can no longer be challenged. The application of the non bis in idem principle in proceedings under competition law is, therefore, subject to a twofold condition, namely, first, that there must be a prior final decision (the ‘bis’ condition) and, secondly, that the prior decision and the subsequent proceedings or decisions concern the same conduct (the ‘idem’ condition).

Since the German competition authority’s decision of 2014 constitutes a prior final decision which had been given after a determination had been made as to the merits of the case, the ‘bis’ condition is met as regards the proceedings conducted by the Austrian competition authority.

As regards the ‘idem’ condition, the relevant criterion for the purposes of assessing the existence of the same offence is identity of the material facts, whatever their legal classification under national law or the legal interest protected. The identity of anticompetitive practices must be examined in the light of the territory and the product market concerned and the period during which those practices had as their object or effect the prevention, restriction or distortion of competition.

Accordingly, it is for the referring court to ascertain, by assessing all the relevant circumstances, whether the German competition authority’s decision of 2014 found that the cartel at issue existed, and penalised it, as a result of the cartel’s anticompetitive object or effect not only in German territory, but also Austrian territory. If that were the case, further proceedings and, as the case may be, further penalties for infringement of Article 101 TFEU and the corresponding provisions of Austrian law, as a result of the cartel in Austrian territory, would constitute a limitation of the fundamental right guaranteed in Article 50 of the Charter.

Such a limitation could not, moreover, be justified under Article 52(1) of the Charter. Article 52(1) provides, inter alia, that any limitation on the exercise of the rights and freedoms recognised by the Charter must genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others.

Admittedly, since the prohibition of cartels laid down in Article 101 TFEU pursues the general interest objective of ensuring undistorted competition in the internal market, the limitation of the non bis in idem principle, guaranteed in Article 50 of the Charter, resulting from a duplication of proceedings and penalties of a criminal nature by two national competition authorities, may be justified under Article 52(1) of the Charter where those proceedings and penalties pursue complementary aims relating, as the case may be, to different aspects of the same unlawful conduct. However, if two national competition authorities were to take proceedings against and penalise the same facts in order to ensure compliance with the prohibition on cartels under Article 101 TFEU and the corresponding provisions of their respective national law prohibiting agreements which may affect trade between Member States within the meaning of Article 101 TFEU, those two authorities would pursue the same objective of ensuring that competition in the internal market is not distorted. Such a duplication of proceedings and penalties would not meet an objective of general interest recognised by the European Union, with the result that it could not be justified under Article 52(1) of the Charter.

As regards the proceedings conducted by the Austrian competition authority with regard to Nordzucker, the Court confirms, ultimately, that such proceedings for the enforcement of competition law, in which, owing to Nordzucker’s participation in the national leniency programme, only a declaration of the infringement of that law can be made, are also liable to be covered by the non bis in idem principle.

As a corollary to the res judicata principle, the non bis in idem principle aims to ensure legal certainty and fairness; in ensuring that once a natural or legal person has been tried and, as the case may be, punished, that person has the certainty of not being tried again for the same offence. It follows that the initiation of criminal proceedings is liable, as such, to fall within the scope of the non bis in idem principle, irrespective of whether those proceedings actually result in the imposition of a penalty.