A few days ago the European Commission decided to close its investigation into some of the EU's major sugar producers, including the German suppliers Südzucker and Nordzucker. The Commission had carried out dawn raids on the basis of a suspicion that the sugar companies were involved in a price fixing cartel.
On the same day, Germany's Competition Authority announced that it was imposing fines of €280 million on three major German sugar producers, including Südzucker and Nordzucker. The infringement involved a 'territorial cartel' pursuant to which producers agreed to sell only in their respective home areas and not to sell into their competitors' sales areas. National competition authorities (NCAs) in Austria, Belgium, Hungary, Latvia and Romania have also investigated potential anticompetitive behaviour in the sugar market in recent years.
This highlights the complex relationship between EU anti-trust rules, Member States' national anti-trust rules, the EU Commission as an anti-trust enforcer, and NCAs as anti-trust enforcers:
- Both the EU Commission and NCAs can enforce the EU anti-trust rules. Only NCAs can enforce national anti-trust rules.
- Where NCAs seek to enforce the EU anti-trust rules, they must inform the Commission in writing and this information is made available to other NCAs. This means that investigations can, and often do, spread from EU country to EU country quickly.
- The EU Commission and NCAs cannot separately investigate and penalise the same behaviour (no double jeopardy). But, where the EU Commission for example decides to limit its investigation to a specific period or specific infringements, NCAs can investigate and penalise the same infringements but in a different time period, or different infringements in the same time period.
- For example, in the Lifts & Escalators cartel, the EU Commission fined companies for operating four distinct geographic cartels for the installation and maintenance of lifts and escalators in each of Belgium, Germany, Netherlands and Luxembourg. The parties perpetrated the same infringement in Austria, but that was investigated (and the parties were penalised) by the Austrian competition authority.
- This means that an immunity or leniency application made to the EU Commission will not necessarily offer protection from investigation by all of the EU NCAs.
If you would like to discuss these issues, please do not hesitate to contact John Cassels at email@example.com