Opinion of the Advocate General — ECLI:EU:C:2024:924
Date: 2024-10-24
Language of the case: German
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
3 January 2023 
Referring court: 
Oberlandesgericht Wien (Austria) 
Date of the decision to refer: 
20 December 2022 
Appellants: 
FL und KM Baugesellschaft m.b.H. & Co. KG 
S AG 
  
Subject matter of the main proceedings 
Competition law – Protection of leniency statements and settlement submissions – 
Effect vis-à-vis prosecution authorities 
Subject matter and legal basis of the reference 
Interpretation of EU law, Article 267 TFEU 
Questions referred for a preliminary ruling 
Question 1: 
Are the provisions of EU competition law – in particular Directive 2014/104 of 
26 November 2014 and Article 6(6) and (7) and Article 7(1) thereof, as well as 
Directive 2019/1 of 11 December 2018 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 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-2/23 
 
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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 of 
26 November 2014 and Article 6(6) and (7) and Article 7(1) thereof, as well as 
Directive 2019/1 of 11 December 2018 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 of 
26 November 2014 and Article 6(6) and (7) and Article 7(1) thereof, as well as 
Directive 2019/1 of 11 December 2018 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? 
Community legislation cited 
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 
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 
Provisions of national law cited 
Bundes-Verfassungsgesetz (Federal Constitution Law) (B-VG), Article 22 
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Strafprozessordnung (Code of Criminal Procedure) 1975 (StPO) Paragraph 2(1), 
Paragraph 49(1)(3) and (2), Paragraph 51(1) and (2), first sentence, Paragraph 
65(2), Paragraph 66(1)(2), Paragraph 68 (1) and (2), Paragraph 76(1) and (2), 
Paragraph 87(1), Paragraph 106(1), Paragraph 162 
Brief summary of the facts and procedure 
1 The Zentrale Staatsanwaltschaft zur Verfolgung von Wirtschaftsstrafsachen und 
Korruption (Central Public Prosecutor’s Office for the Prosecution of Economic 
Crimes and Corruption; ‘the Public Prosecutor’s Office’) is conducting an 
investigation into numerous construction companies and their managers regarding 
offences relating to the conclusion of agreements restricting competition in 
procurement procedures under Paragraph 168b(1) of the Austrian Strafgesetzbuch 
(Criminal Code) and other criminal offences. The proceedings cover more than 
350 suspicious procurement procedures in the period 2006 to 2017 and currently 
relate to around 860 accused persons. 
2 In parallel with these criminal proceedings, the Bundeswettbewerbsbehörde 
(Federal Competition Authority) was conducting a competition case for the 
imposition of fines before the Oberlandesgericht Wien (Higher Regional Court, 
Vienna), acting as the Austrian Cartel Court. In this case, both appellants applied 
for leniency under competition law. Their participation in the leniency programme 
was approved and the Cartel Court imposed a reduced fine in accordance with a 
corresponding application by the Federal Competition Authority. 
3 The investigations of the Public Prosecutor’s Office were conducted in 
coordination with the Federal Competition Authority. The Public Prosecutor’s 
Office also applied for a copy of the file from the Cartel Court in the context of 
mutual assistance. In providing this copy, the Cartel Court expressly referred to 
Article 22 of the Federal Constitution Law as well as to a decision of the Oberster 
Gerichtshof (Supreme Court) according to which the provision in the 
Kartellgesetz (Law on Cartels) at that time, which restricted the inspection of the 
Cartel Court’s files by third parties, was not applicable vis-à-vis the Public 
Prosecutor’s Office and this provision did not lay down a statutory duty of secrecy 
which also applied vis-à-vis the prosecution authorities. At the request of the 
Public Prosecutor’s Office, the Federal Competition Authority also sent 
documents in the context of mutual assistance, referring, in so doing, to the 
protection provided for by Directive 2019/1 for the documents transmitted. The 
Public Prosecutor’s Office added to the file the parts of the file of the Cartel Court 
that were found to be relevant as well as the documents submitted by the Federal 
Competition Authority, including (parts of) leniency statements and settlement 
submissions together with annexes, and prepared a new request for investigation 
to the police based on these documents. 
4 The appellants then applied to the Public Prosecutor’s Office, requesting it not to 
add the leniency statements and settlement submissions together with documents 
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to the file, not to exploit them, and in any case permanently to exclude them from 
inspection, vis-à-vis all co-accused and injured parties. The Public Prosecutor's 
Office did not comply with this request, but only provisionally excluded some of 
the documents (including the leniency statements and settlement submissions) 
from inspection (pending final clarification of this issue by the court). 
5 The appellants lodged an objection against this decision of the Public Prosecutor’s 
Office. The Public Prosecutor’s Office submitted the objection to the 
Landesgericht für Strafsachen Wien (Regional Court for Criminal Matters, 
Vienna). The latter rejected the objection, a decision against which the appellants 
appealed to the referring court. 
Principal arguments of the parties in the main proceedings 
6 The protection of leniency statements, settlement submissions and information 
obtained therefrom from disclosure serves to privilege leniency applicants in 
actions for damages and criminal proceedings, which is considered by both the 
national legislature and the EU legislature to be a necessary incentive for a 
functioning leniency programme. 
7 Article 31(3) of Directive 2019/1 provides, for example, that any form of 
disclosure of leniency statements and settlement submissions is impermissible and 
lays down an explicit obligation of confidentiality, compliance with which must 
be ensured vis-à-vis everyone, i.e. also vis-à-vis prosecution authorities and third 
parties. 
8 This would also be supported by Article 13(4) of Directive 2019/1, which, in 
order to ensure the effectiveness of competition law leniency programmes, 
establishes the primacy of competition law over domestic criminal law, and by 
recital 72 of that directive. 
9 Evidence prepared by leniency applicants only in or for the competition authority 
proceedings (for example, reports on internal investigations or lists and minutes 
drawn up for the competition authority) form part of the leniency statements and 
are also protected. This protection also applies in relation to the prosecution 
authorities. The gaining of information by potential injured parties indirectly via 
criminal proceedings would undermine absolute protection. 
10 Should the absolute protection of settlement submissions and the information 
obtained therefrom not be guaranteed on the basis of the applicable Austrian law, 
the corresponding provisions of EU law would be directly applicable due to the 
primacy of EU law. 
11 It is to be feared that third parties (accused persons and injured parties), who are 
not allowed to have access to the leniency statements and settlement submissions 
under the provisions of cartel and competition law as well as under Article 6(6) of 
Directive 2014/104 and Article 31(3) of Directive 2019/1, will gain knowledge of 
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the content of these documents indirectly through the criminal proceedings. This 
would put the appellants, which enjoy leniency status, in a worse position under 
criminal law, and also under civil law, than other accused persons. 
Brief summary of the basis for the reference 
Presentation of the Austrian legal situation 
12 In Austria, the principle of investigation by an authority of its own motion applies, 
which, in conjunction with the power of the public prosecutor’s office to direct the 
investigation proceedings, means that the public prosecutor’s office must pursue 
every initial suspicion and clarify it by taking appropriate investigative steps. All 
significant information thereby ascertained is to be added to the file. Such 
information can also be obtained through requests for administrative and legal 
assistance to other authorities. Public authorities are required to provide mutual 
assistance. This can be restricted or refused vis-à-vis prosecution authorities only 
by explicit statutory order. 
13 In Austrian law, there is no explicit restriction on administrative and legal 
assistance between the Cartel Court and competition authorities on the one hand 
and the prosecution authorities on the other. Criminal law also knows no 
prohibition of evidence with regard to leniency statements and settlement 
submissions under cartel or competition law. 
14 Under the Austrian Code of Criminal Procedure, different parties to the 
proceedings have a right to inspect files to varying extents, with the accused 
person generally having a right to comprehensive access to files. In that case, the 
principle of completeness of the file must be applied. A restriction of access by 
accused persons to files is possible only in exceptional cases and only temporarily. 
In the case at hand, no exceptional circumstances apply. 
15 In addition to the accused person, victims and private involved parties also have 
the right to inspect the file, and inspection is in principle to be granted if it is 
necessary to protect their interests (related to the claim asserted). 
16 The Public Prosecutor’s Office thus permissibly added the documents of the cartel 
proceedings (including leniency statements, settlement submissions and other 
documents) obtained in the course of official and legal assistance to the file, on 
the basis of the Austrian provisions, and lawfully generated investigation requests 
from them. Consequently, in principle, the parties to the proceedings were given 
the possibility of inspecting these parts of the file as well. For this reason, the 
appellants requested that the relevant documents and information not be added to 
the file, that they not be used for further investigative steps or that they be 
permanently excluded from inspection for all parties to the proceedings. 
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Presentation of the European law issue 
17 On the basis of Article 6(6) and (7) of Directive 2014/104 as well as Article 31(3) 
of Directive 2019/1, it can be argued that the protection of leniency statements and 
settlement submissions from disclosure laid down in these directives is intended to 
be a comprehensive protection, which is thus effective vis-à-vis any third party 
and thus also vis-à-vis courts or authorities and the parties to proceedings there. 
This interpretation is also supported by Article 13(4) of Directive 2019/1. 
18 Domestically, the problem arises that the Cartel Court and the Federal 
Competition Authority are obliged to provide administrative and legal assistance 
and thus to transmit their files, including leniency statements, settlement 
submissions and information obtained therefrom. In so far as these transmitted 
documents contain information material to the criminal proceedings, they are to be 
added to the criminal file and are then accessible to the parties to the proceedings 
by way of file inspection. The latter can then also use the information thus 
obtained, for example, to assert claims for damages. 
19 Restrictions on the inspection of files are only possible in a few cases, while a 
permanent and general restriction is not provided for as a matter of principle. 
According to the referring court, this has negative consequences in criminal and 
civil law for leniency applicants under competition law, and the objective of 
protecting leniency statements and settlement submissions from disclosure is thus 
undermined.  
20 The above-mentioned directives clearly provide for broader protection of leniency 
statements and settlement submissions from disclosure than merely protection in 
competition proceedings. However, this protection would be counteracted by the 
possibility of access to the file by the parties to the criminal proceedings. In the 
present proceedings, the question therefore arises as to whether and, if so, which 
parts of the cartel files may be added to the criminal file, and who, if anyone, is to 
be granted access to these parts of the file. 
21 The referring court therefore wishes to know whether the protection of leniency 
statements and settlement submissions (as well as the information obtained 
therefrom) laid down in the aforementioned directives is absolute and thus also 
applies vis-à-vis the prosecution authorities (Question 1). If this is the case, the 
prosecution authorities would already be prevented from adding the documents to 
the file and generating further investigative steps from them. 
22 Should the absolute protection be affirmed, the question arises as to its scope, i.e. 
whether in this case, in addition to leniency statements and settlement 
submissions, it also covers documents submitted by the leniency applicant to 
explain, specify in detail and prove the content of the leniency statement 
(Question 2). 
23 If Question 1 is answered in the negative and the documents in question can be 
added to the criminal file and used for further investigations, it must be clarified 
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whether the protection laid down in the directives at least means that co-accused 
of the leniency applicants and/or other participants in the criminal proceedings are 
to be permanently denied access to these parts of the file (Question 3), which 
would directly interfere with Austrian criminal law and an accused person’s rights 
protected by the European Convention on Human Rights.