EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Concurrent Enforcement of the DMA and Competition Law and the ne bis in idem Principle Jan Měkota ROWAN LEGAL, advokátní kancelář s.r.o. Na Pankráci 1683/127, Prague, 140 00 Czechia e-mail: mekota@rowan.legal Abstract The system of obligations set out in the DMA proposal are often referred to as the “New Competition Tool”. These obligations are largely inspired by recent cases and decisions adopted in proceedings under Article 101 and especially Article 102 TFEU. Despite the existence of an apparent link between DMA rules and enforcement of competition rules, the DMA itself explicitly states that its regulatory aim is to protect legal interests different from the ones protected by Articles 101 and 102 TFEU. The declared difference of legal interests might rule out the ne bis in idem principle and allow for concurrent enforcement of DMA obligations and competition rules. Given the competence of NCAs in enforcement of the latter, this situation might lead to the fragmentation of decision-making in large platform related cases, contrary to the DMA’s general aim of unified and efficient EU-wide approach. The paper defines and analyses questionable aspects related to concurrent application of both DMA and Articles 101 and 102 TFEU to contribute to the expert debate that follows the ongoing legislative procedure. Keywords: DMA, abuse of dominance, ne bis in idem, enforcement, CJEU JEL Classification: K210 1. Introduction In the recent years, the European Commission (the Commission) has initiated multiple antitrust proceedings against various giant multi-sided online platforms i.e.,: Google Android ( Google Android , 2018, AT.40099), Google Shopping ( Google Shopping , 2017, AT.39740), Microsoft ( Microsoft (Tying) , 2013, AT.39530), Amazon Marketplace ( Amazon Marketplace , pending, AT.40462) and many others, which were often concluded only after several years of investigations into the potential anti-competitive conduct and its effects. These investigations were concerned mainly with breach of Article 102 TFEU.

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