Germany's second largest sugar refiner Nordzucker should not be penalised twice for the same antitrust offence, an advisor to Europe's top court said on Thursday, but said a separate case involving Belgian postal operator Bpost faces no such double jeopardy risk.
Nordzucker and its rival Südzucker, Europe's largest sugar producer, were fined by the German antitrust regulator in 2014 for taking part in a cartel. The Austrian competition watchdog is seeking to issue a declaration that both companies also breached national cartel laws.
Bpost was fined first by Belgium's postal watchdog and then by the antitrust authority for the same offence, prompting the company to challenge the antitrust fine.
The separate cases came before the Luxembourg-based Court of Justice of the European Union (CJEU) after the Belgian tribunal and an Austrian court sought guidance as to whether the companies are being charged for the same conduct.
Double Jeopardy Risk
Michal Bobek, an advocate general or adviser to the CJEU, said Nordzucker should not be sanctioned twice for the same wrongdoing if the temporal and geographical scope of both cases against the company are the same.
The legal principle "ne bis in idem" means that people cannot be charged twice for the same offense, which ensures legal certainty and equality for companies. "The principle ne bis in idem enshrined in the Charter (of Fundamental Rights of the EU) prevents a national competition authority or a court from sanctioning an anti-competitive conduct that was already the object of previous proceedings concluded by a final decision adopted by another national competition authority," he said in a non-binding opinion.
In the case of Bpost there is no risk of double jeopardy, Bobek said.
"It would appear that, subject to verification by the Belgian court, both offences that have been pursued successively in the sectoral and competition proceedings seem to be linked to the protection of a different legal interest and to a legislation pursuing a different objective," he said.
Judges, which usually follow four out of five such recommendations, will rule in the coming months.
Nordzucker closed its 2020/21 financial year with a 16% year-on-year increase in sales, to €1.7 billion, while operating profit amounted to €81.0 million.