Opinion of the Advocate General — ECLI:EU:C:2021:681
Date: 2021-09-02
Language of the case: German
Subject matter: Competition;Agreements, decisions and concerted practices
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary C-151/20 — 1 
Case C-151/20 
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: 
27 March 2020 
Referring court: 
Oberster Gerichtshof (Austria) 
Date of the decision to refer: 
12 March 2020 
Applicant and appellant: 
Bundeswettbewerbsbehörde 
Defendants and respondents: 
1. Nordzucker AG 
2. Südzucker AG 
3. Agrana Zucker GmbH 
  
Subject matter of the main proceedings 
Infringement of Article 101(1) TFEU as a result of, inter alia, anti-competitive 
agreements in relation to the Austrian sugar market 
Subject matter of the reference 
Prohibition on double jeopardy where the same infringement is prosecuted by 
authorities of different Member States, significance of the legal interest protected 
Questions referred 
1. Is the third criterion established in the Court of Justice’s competition case-
law on the applicability of the ‘ne bis in idem’ principle, namely that conduct 
EN 
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must concern the same protected legal interest, applicable even where the 
competition authorities of two Member States are called upon to apply the same 
provisions of EU law (here: Article 101 TFEU), in addition to provisions of 
national law, in respect of the same facts and in relation to the same persons? 
In the event that this question is answered in the affirmative: 
2. Does the same protected legal interest exist in such a case of parallel 
application of European and national competition law? 
3. Furthermore, is it of significance for the application of the ‘ne bis in idem’ 
principle whether the first decision of the competition authority of a Member State 
to impose a fine took account, from a factual perspective, of the effects of the 
competition law infringement on the other Member State whose competition 
authority only subsequently took a decision in the competition proceedings 
conducted by it? 
4. Do proceedings in which, owing to the participation of a party in the 
national leniency programme, only a declaratory finding of that party’s 
infringement of competition law can be made also constitute proceedings 
governed by the ‘ne bis in idem’ principle, or can such a mere declaratory finding 
of the infringement be made irrespective of the outcome of previous proceedings 
concerning the imposition of a fine (in another Member State)? 
Provisions of EU law cited 
Article 101 TFEU, Article 50 of the Charter of Fundamental Rights, Article 4 of 
Protocol No. 7 to the European Convention on Human Rights (Protocol No. 7 to 
the ECHR), Article 54 of the Schengen Implementing Convention (SIC), Article 2 
of Regulation (EC) No 1184/2006, Article 2 of Regulation No 26/1962, 
Article 209(1) of Regulation (EU) No 1308/2013, Regulation (EC) No 318/2006, 
recitals 18 and 37, and Articles 5, 13(1) and (2) and 23(2) of Regulation (EC) 
No 1/2003 
Provisions of national law cited 
Paragraph 1, Paragraph 2(2), point 5, Paragraph 28(1), Paragraph 29, point 1(a) 
and (d), and Paragraph 36(1) of the Kartellgesetz 2005 (2005 Law on cartels), and 
Paragraph 9, Paragraph 87(2), and Paragraph 142, point 1(a) and (d) of the 
Kartellgesetz 1988 (1988 Law on cartels)  
Case-law of the Court of Justice cited 
Judgment of 18 June 2013, C-681/11, Schenker & Co; judgment of 14 February 
2012, C-17/10, Toshiba; judgment of 15 October 2002, C-238/99 P, Limburgse 
Vinyl; judgment of 7 January 2004, C-204/00 P, Aalborg Portland; judgment of 
NORDZUCKER AND OTHERS 
 
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29 June 2006, C-289/04 P, Showa Denko; judgment of 13 February 1968, 14/68, 
Walt Wilhelm; judgment of 18 May 2006, C-397/03, Archer-Midlands; judgment 
of 9 March 2006, C-436/04, Esbroeck; judgment of 20 March 2018, C-524/15, 
Luca Menci; judgment of 28 September 2006, C-150/05, Van Straaten 
Summary of the facts and procedure 
1 The groups of the first two defendants (Nordzucker and Südzucker) are two of 
Europe’s leading sugar manufacturers. The third defendant (Agrana), which is 
controlled by Südzucker, operates two sugar factories in Austria and has further 
sugar factories in Eastern Europe via subsidiaries. For decades, the sugar market 
in Germany has been dominated by three large manufacturers, two of which are 
the first two defendants. 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 (‘home market principle’). This did not 
encompass foreign markets, including those in which, as in Austria, subsidiaries 
of German sugar manufacturers operated. The third defendant operates largely 
independently on the markets it serves and is regarded as the Austrian sugar 
manufacturer. 
2 Due to the attempts of foreign sugar manufacturers to enter the German market, 
several meetings took place from no later than 2004 between the sales directors of 
the first and second defendants who were responsible for industrial sugar in 
Germany at the time. The importance of avoiding the new competitive pressure by 
ensuring that German companies did not compete with each other by penetrating 
the traditional core sales areas of the other manufacturers was stressed in those 
meetings. There was no mention of Austria in these talks. Nor did the third 
defendant participate in these talks, and its management was not informed of 
them. 
3 The opening of the EU’s eastern borders was of major importance for the Austrian 
sales area. Around the end of 2005 and beginning of 2006, the third defendant 
established that some industrial customers previously supplied exclusively by it 
were purchasing sugar from Slovakia, apparently from the subsidiary of the first 
defendant. During a telephone call of 22 February 2006 concerning other group 
matters, the third defendant’s managing director informed the second defendant’s 
sales director of these deliveries to Austria and asked him whether he knew 
anyone at the first defendant with whom he could discuss the matter. The sales 
director of the second defendant then called the sales director of the first 
defendant and complained about the deliveries to Austria. The sales director of the 
first defendant did not make any commitments to him, but took the risk to the 
‘peace from competition’ on the German market seriously and provided his 
colleague and the Chief Executive Officer of the first defendant with a report on 
the conversation by email on 23 February 2006. The latter orally instructed him 
not to react to it. However, the sales director of the first defendant expressed to the 
sales manager of the Slovakian subsidiary his wish for exports not to be expanded 
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to Austria. The latter regarded this wish expressed by a person from group 
headquarters who he considered to be important as an instruction and was 
prepared to implement it. These internal processes within the company of the first 
defendant were not discernible to the third defendant. The telephone conversation 
of 22 June 2006 remained the only conversation between the defendants in which 
the Austrian market was mentioned.  
4 By final administrative order imposing a fine of 18 February 2014, the German 
Bundeskartellamt (Federal Cartel Office) imposed a fine of EUR 195 500 000 on 
the second defendant as a secondary party concerned (‘Nebenbetroffene’), 
because several persons acting in positions of responsibility intentionally failed to 
comply, in the period from the end of 2001 at the latest to 26 March 2009, in 
various locations in the Federal Republic of Germany, with the prohibition of 
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, or because they negligently 
failed to take the supervisory measures necessary to prevent that infringement of 
the prohibition on cartels, which would have been prevented or significantly 
hampered by proper supervision. This is based on the fact that persons acting in 
positions of responsibility for the first defendant, the second defendant and the 
third German undertaking participated in collusion, in respect of both industrial 
sugar and retail sugar, for the purpose of respecting the respective core sales areas 
of their competitors (‘home market principle’). In that context, the German 
Federal Cartel Office made findings on regular meetings held between the 
representatives of the first and second defendants from 2004 to 2007 and from 
2004 to summer 2008, respectively. That administrative order imposing a fine, 
consisting of barely 22 pages, expressly reproduces the content of the above-
described telephone conversation of 22 February 2006 between the sales director 
of the second defendant and the sales director of the first defendant concerning 
Austria. 
5 In the present proceedings, the Bundeswettbewerbsbehörde (Austrian Federal 
Competition Authority) filed an application seeking, in respect of the first 
defendant, a declaratory finding that the latter had infringed Article 101 TFEU 
and the corresponding provisions of national cartel law and, in respect of the 
second defendant, the imposition of a fine of EUR 12 460 000 for the period from 
1 January 2005 to 21 September 2006 and a further fine of EUR 15 390 000, for 
which it is jointly and severally liable together with the third defendant, for the 
period from 22 September 2006 to 31 October 2008. 
6 The court of first instance refused the applications, stating that, regarding the 
application for a declaratory finding against the first defendant, it should be noted 
that the Austrian Federal Competition Authority did not have a legitimate interest 
in seeking a declaratory finding against an undertaking in respect of which it had 
refrained from applying for a fine in view of the application of the leniency 
programme. The sectoral exclusion for agriculture pursuant to Regulation (EU) 
No 1308/2013 did not apply. For the period up to February 2006, there was no 
NORDZUCKER AND OTHERS 
 
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indication that Austria was involved, even ‘implicitly’, in the basic understanding 
to respect the traditional German sales areas. However, the request to that effect, 
made in the telephone call of 22 February 2006, to have at least a dampening 
effect on the deliveries made to Austria by the Slovakian subsidiary of the first 
defendant in 2006, and the subsequent implementation of that request constituted 
an agreement between the first and second defendants which infringed 
competition law under Article 101(1) TFEU, and the effects of that agreement had 
to be presumed to be appreciable. The agreement did not fall within the de 
minimis exception. However, the prohibition on double jeopardy was also 
established in competition proceedings concerning the imposition of a fine. If a 
certain aspect of the conduct, and thus also the wrongfulness of that conduct, was 
covered by a penalty already imposed by another national competition authority, a 
new penalty would run counter to the prohibition of double jeopardy. This was the 
case here with the agreement of 22 February 2006. 
7 The Federal Competition Authority’s appeal is directed against that decision and 
seeks, on the basis of the agreement made between the first and second defendants 
in the telephone conversation of 22 February 2006, a declaratory finding that the 
first defendant had infringed Article 101 TFEU and the corresponding provisions 
of national cartel law, and, in respect of the second defendant, the imposition of an 
appropriate fine for the same infringements. 
Principal arguments of the parties in the main proceedings 
8 The Federal Competition Authority takes the view that, following the telephone 
conversation of 22 February 2006 described above, there was a series of meetings 
regarding the Austrian market, which were consistent with an understanding in 
which the third defendant was guaranteed a territorial monopoly. The individual 
contacts between the cartel participants should be assessed in their entirety and in 
the wider context. The active participation of the third defendant could be 
established as from the first personal meeting on 22 September 2006. From that 
point until 31 October 2008, the third defendant was therefore also jointly and 
severally liable with the second defendant. Article 101 TFEU was applicable to 
the conduct in the present case. The exceptions under Article 2 of Regulation 
1184/2006, or Article 2 of Regulation 26/1962, could not be relied upon. The 
question regarding the prohibition of double jeopardy was not relevant, because 
the German Federal Cartel Office had only dealt with agreements that had had an 
impact on the German market. Under EU law, it was permissible for the national 
authorities to impose penalties in parallel in the case of an infringement covering 
several Member States, provided that the fines were limited to the effects on the 
respective territories (decentralised enforcement of competition law pursuant to 
Regulation 1/2003). This had been the case with the decision of the German 
Federal Cartel Office. In the present case, by contrast, only the effects on the 
Austrian market were being prosecuted. The court of first instance disregarded the 
decision of the Court of Justice in Case C-681/11, Schenker & Co. The 
examination required by the Court of Justice as to the territories in respect of 
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which a fine had been imposed, taking into account the quantity of turnover, had 
not been carried out.  
9 The first defendant requested that the application for a declaratory finding 
against it be dismissed owing to the lack of a legitimate interest. It takes the view 
that although Austria had always been implicitly included in the ‘basic 
understanding’, it had never been more than a ‘side show’ due to its low sales 
volumes. In the contested contacts regarding Austria, the first defendant’s primary 
concern was therefore to prevent countermeasures and ‘price wars’ in the ‘main 
theatre’, Germany, as a result of conduct on the Austrian market. 
10 The second defendant requested that the application for the imposition of a fine 
be dismissed. There had been a de facto division of the core sales areas due to the 
respective locations of the sugar factories and the high transport costs. In view of 
this situation, the ‘basic understanding’ arose naturally for commercial reasons, 
without the need to guarantee it by means of collusion. Moreover, even an explicit 
‘understanding’, if one existed, did not ‘implicitly’ relate to Austria. No concrete 
agreements were made in relation to Austria. The third defendant had always 
independently managed the sugar business within the second defendant’s group. A 
fine had been imposed on the second defendant by the German Federal Cartel 
Office’s final administrative order imposing a fine of 18 February 2014. That 
administrative order imposing a fine was also based, inter alia, on the telephone 
conversation of 22 February 2006. According to the ‘ne bis in idem’ principle, 
which is also recognised in cartel law, the imposition of a further fine on the 
second defendant on the basis of the same facts was therefore impermissible. 
11 The third defendant also requested that the application for the imposition of a 
fine be dismissed. It stated that the system of core sales areas was created for 
reasons of commercial logic. The third defendant did not participate in the 
contacts between the first and second defendants alleged by the Federal 
Competition Authority. It was correct that the managing director of the third 
defendant requested that contact be made with the first defendant, but he did not 
request any intervention from the first defendant, nor was he informed of any such 
intervention. Lastly, the agreements objected to by the Federal Competition 
Authority were excluded from the scope of Article 101(1) TFEU by the sectoral 
exclusion for agriculture pursuant to Article 209(1) of Regulation (EU) 
No 1308/2013. 
Summary of the basis for the reference 
The second defendant: 
12 A fine was imposed on the second defendant in Germany, the factual background 
of which also covered the only relevant competition law infringement remaining 
here, namely the telephone conversation of 22 June 2006.  
NORDZUCKER AND OTHERS 
 
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General points concerning the ‘ne bis in idem’ principle 
13 In the context of competition law — particularly in the context of parallel 
prosecution or punishment by the Commission and the national competition 
authorities — the Court of Justice has taken the legal view, in settled case-law, 
that the ‘ne bis in idem’ principle may be applied only if three cumulative criteria 
(the ‘triad’) are met in relation to the ‘idem’ component, namely identity of facts, 
offender and the legal interest protected. To that effect, the principle must be 
observed in proceedings for the imposition of fines under competition law (Court 
of Justice, C-17/10, Toshiba, paragraph 94, C-238/99 P, Limburgse Vinyl, 
paragraph 59, C-204/00 P, Aalborg Portland, paragraphs 338 to 340, C-289/04 P, 
Showa Denko, paragraph 50) and precludes an undertaking being found liable or 
proceedings being brought against it afresh on the grounds of anti-competitive 
conduct for which it has been penalised or declared not liable by an earlier 
decision that can no longer be challenged (C-238/99 P, Limburgse Vinyl, 
paragraph 59). 
14 In the Aalborg Portland (C-204/00, paragraph 338) and Toshiba (C-17/10, 
paragraph 94) decisions, the Court of Justice referred to those criteria and 
explained that an undertaking cannot rely on the principle of ‘ne bis in idem’ 
where the Commission has imposed a sanction on an undertaking for conduct 
different from that imputed to the same undertaking and forming the subject 
matter of an earlier decision of a national competition authority, including where 
the two decisions relate to intrinsically linked contracts and agreements. 
15 The rationale underlying this line of case-law can be traced back to the judgment 
in Case 14/68, Walt Wilhelm, of 13 February 1968 and therefore came into being 
in the early decades of European integration. Since then, national law and EU law 
have become increasingly intertwined and a certain degree of tension can be felt, 
particularly between the third criterion of the ‘triad’, identity of legal interest, as 
applied in the field of competition law, and more recent acts, such as, in particular, 
Article 50 of the Charter of Fundamental Rights, Protocol No. 7 to the ECHR or 
the Schengen Implementing Convention (SIC). 
16 This is because, as a matter of EU law, the sameness of an offence is determined 
on the basis of only a two-fold criterion: identity of facts and of offender. The 
legal characterisation, or the interest protected, are by contrast not determinative 
for the purposes of applying the principle of ‘ne bis in idem’. This approach, 
reflecting closely the recent case-law of the European Court of Human Rights 
(ECtHR), has been applied by the Court of Justice in cases concerning police and 
judicial cooperation in criminal matters (C-436/04, Esbroeck, paragraph 36; 
C-524/15, Luca Menci, paragraph 35; C-150/05, Von Straaten, paragraph 53; see 
also the Opinion of Advocate General Wahl in Case C-617/17, Powszechny 
Zakład, point 25 with further references). 
17 In Case C-436/04, Esbroeck, paragraph 27 et seq., the Court examined at great 
length, in proceedings relating to Article 54 of the SIC, the objection that identity 
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of the acts means identity of their legal classification and of the protected legal 
interests. It stated that that provision uses the wording ‘the same acts’ and 
therefore refers only to the nature of the acts in dispute and not to their legal 
classification. In this respect, that provision differs from the terms used in other 
international treaties which enshrine the ‘ne bis in idem’ principle. For instance, 
Article 4 of Protocol No. 7 to the ECHR uses the term ‘offence’, which implies 
that the criterion of the legal classification of the acts is relevant as a prerequisite 
for the applicability of the ‘ne bis in idem’ principle. However, the ECtHR 
referred to this conceptual differentiation in a later decision, no. 14.939/03 of 
10 February 2009, Zolotukhin v. Russia. It stated that, in the context of Article 4 
of Protocol No. 7 also, the approach should focus on whether the factual 
circumstances that gave rise to those proceedings were essentially the same, and 
not on their legal classification. 
The territorial aspects of ‘ne bis in idem’ 
18 Generally speaking, there is no principle of public international law that prevents 
the public authorities, including the courts, of different States from trying and 
convicting the same natural or legal person on the basis of the same facts as those 
for which that person has already been tried in another State (Court of Justice, 
C-289/04 P, Showa Denko, paragraph 58). In that case, the Court rejected the 
argument that the principle of ‘ne bis in idem’ could be relied upon in a situation 
where the Commission exercises its powers under EU law after penalties have 
been imposed on undertakings for participation in an international cartel by the 
authorities of a non-Member State on the basis of infringement of competition 
rules applicable in that State where those authorities have intervened within their 
respective jurisdictions (see Opinion of Advocate General Wahl in Case 
C-617/17, Powszechny Zakład, point 35). 
19 In that line of case-law pertaining to parallel prosecution or punishment by the 
Commission and non-Member State competition authorities, the Court has 
highlighted the international nature of the impugned conduct as well as the 
differences between the respective legal systems, including the aims and 
objectives of the relevant substantive rules on competition, as well as the specific 
legal interest protected by EU competition rules. It has also specifically pointed 
out that this situation, where the Commission and non-Member State authorities 
intervene in their respective jurisdictions, should be considered separately from 
the situation where anti-competitive conduct is confined exclusively to the 
territorial scope of application of the legal system of the EU (and its Member 
States) (C-289/04 P, Showa Denko, paragraphs 51 and 53; cf. Opinion of 
Advocate General Wahl in Case C-617/17, Powszechny Zakład, point 36). 
20 The Court’s decision in Case C-397/03, Archer-Midlands, was also based on the 
intervention of the Community authorities on the one hand and the authorities of a 
non-member country on the other hand. According to that decision, where the 
sanction imposed in a non-member country covers only the applications or effects 
of the cartel on the market of that State and the Community sanction covers only 
NORDZUCKER AND OTHERS 
 
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the applications or effects of the cartel on the Community market, the facts are not 
identical. 
21 The Court’s judgment in Case C-17/10, Toshiba, dealt with the question of 
whether, on the one hand, the national (Czech) competition authorities may 
impose penalties under national competition law and, on the other hand, the EU 
authorities may impose penalties under EU law. The important factor here was the 
fact that the Czech authorities merely sought to penalise consequences to which a 
cartel gave rise on Czech territory prior to the Czech Republic’s accession to the 
EU, whereas the decision of the Community authorities did not cover any anti-
competitive consequences to which the cartel gave rise on Czech territory in the 
period prior to its accession to the EU (see paragraphs 99-103). The Court focused 
on the Commission’s actual approach, such as the consequences within the 
Member States and EEA countries that were specifically taken into account and 
the methods of calculation of the fines (paragraph 101), and did not adopt the 
statements made by the Advocate General in her Opinion (point 131), according 
to which, from the outset, the ‘ne bis in idem’ principle does not prohibit more 
than one competition authority or court from penalising restrictions of 
competition — by object or by effect — resulting from one and the same cartel in 
different territories within the European Economic Area. 
22 It is not clear from the Court’s case-law to date whether these principles must also 
be applied in a case where two Member States of the European Union have to 
apply not only their national law but also EU competition law in proceedings 
under competition law concerning the same facts relating to the same person, in 
respect of conduct that took place during their membership of the EU. 
The European Commission’s Modernisation Package 
23 The European Commission’s Modernisation Package adopted in the related field 
of competence of the competition authorities does not clarify these questions 
either. Recital 18 of Regulation 1/2003 states, as an objective, that each case 
should be handled by a single authority. However, according to the judgment of 
the Court in Case C-17/10, Toshiba, paragraphs 89 and 90, this cannot be 
interpreted as meaning that the national authority therefore loses its power to 
apply national law once the Commission has itself adopted a decision. 
Accordingly, Article 13(1) of that regulation provides that, where competition 
authorities of two or more Member States are dealing with a case against the same 
agreement or practice, the fact that one authority is dealing with the case is 
sufficient grounds for the others to suspend the proceedings before them or to 
reject the complaint; however, that fact does not have the effect of depriving the 
other authorities of their competence. Pursuant to paragraph 2 of that provision, a 
competition authority of a Member State or the Commission may reject a 
complaint against an agreement, decision or practice which has already been dealt 
with by another competition authority. 
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24 In the Commission Notice on cooperation within the Network of Competition 
Authorities issued in that context, point 12 states that parallel action by two or 
three national competition authorities may be appropriate where an agreement or 
practice has substantial effects on competition mainly in their respective territories 
and the action of only one national competition authority would not be sufficient 
to bring the entire infringement to an end and/or to sanction it adequately. Each 
national competition authority then operates ‘for its respective territory’. 
25 However, as these provisions of secondary legislation primarily seek to establish a 
system of competence within the network of competition authorities that is as 
efficient and flexible as possible — without laying down any strict rules — they 
ultimately shed no light on the issue of the applicability of the ‘ne bis in idem’ 
principle. Regarding the situation in the present case, where two national 
competition authorities are taking action against the same persons for the same 
conduct, the Court has not clarified the issue of the applicability of the ‘ne bis in 
idem’ principle, and this is what gives rise to the first and second questions. 
Relevance of consideration given to the factual situation? 
26 However, it can be gathered from both the Court’s case-law on non-Member 
States (in particular Court of Justice, C-17/10, Toshiba) and the last-mentioned 
notice of the European Commission that the decisive factor is whether the first 
decision imposing a penalty took the effects of the anti-competitive conduct in the 
other State into consideration from a factual perspective. The appellant also 
addresses this point in the present case and takes the view that the decision of the 
German Federal Cartel Office did not impose a fine for the effects of the cartel on 
Austria. 
27 The court of first instance takes a different view of this issue, however, and refers 
to the findings in the German Federal Cartel Office’s administrative order 
imposing a fine which relate to the telephone conversation between the first and 
second defendants on 22 June 2006, and which are of particular importance in 
view of the brevity of the decision (22 pages compared to the approximately 400-
page ‘Statement of Objections’), and emphasises the relevance of those findings to 
the Austrian market. Contrary to the opinion of the Vice President of the Federal 
Cartel Office of 28 June 2019 — which was issued after the decision of the 
Kartellgericht (Cartel Court) and according to which, in line with its decision-
making practice, decisions of the German Federal Cartel Office punish, in 
principle, only the effects of anti-competitive conduct on Germany — no details 
on the calculation of the fine, and in particular on the underlying turnover and its 
origin, can be gathered from the decision of the competent decision-making 
division of the Federal Cartel Office itself. 
28 It is therefore also questionable whether it is relevant for the applicability of the 
‘ne bis in idem’ principle whether the effects of an infringement of European 
competition law in another Member State have actually been taken into account, 
and this forms the subject matter of the third question. 
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The first defendant: ‘Ne bis in idem’ in the case of a mere declaratory 
finding? 
29 The first defendant was granted leniency status by the Austrian Federal 
Competition Authority. In its decision in Case C-681/11, Schenker, the Court also 
held that Article 101 TFEU and Articles 5 and 23(2) of Regulation 1/2003 must be 
interpreted as meaning that, in the event that the existence of an infringement is 
established, the national competition authorities may by way of exception confine 
themselves to finding that infringement without imposing a fine, where the 
undertaking concerned has participated in a national leniency programme. 
Accordingly, the Federal Competition Authority requested, in respect of the first 
defendant, a declaratory finding regarding anti-competitive conduct pursuant to 
Article 101 TFEU. 
30 However, according to the case-law of the Court, the ‘ne bis in idem’ principle 
must be observed in proceedings for the imposition of fines under competition law 
(Court of Justice, C-17/10, Toshiba, paragraph 94, C-238/99 P, Limburgse Vinyl, 
paragraph 59, C-204/00 P, Aalborg Portland, paragraphs 338 to 340, C-289/04 P, 
Showa Denko, paragraph 50; and also, in relation to Article 54 of the SIC: 
C-398/12, paragraph 41). Lastly, according to the Limburgse Vinyl (C-238/99 P, 
paragraph 59) and Toshiba (C-17/10, paragraph 94) decisions, the ‘ne bis in idem’ 
principle does not only preclude an undertaking from being found guilty a second 
time on the grounds of anti-competitive conduct in respect of which it has been 
penalised or declared not liable by an earlier decision that can no longer be 
challenged, it also even precludes proceedings from being brought against it. 
31 The question therefore arises as to whether mere declaratory proceedings, in 
which, owing to the offender’s participation in the national leniency programme, 
only his infringement of European or national competition law can be established, 
can still be regarded as proceedings aimed at the imposition of fines, in which the 
principle of ‘ne bis in idem’ must be applied, and whether such mere declaratory 
proceedings constitute proceedings impermissibly brought for a second time. This 
gave rise to the fourth question.