EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

Very simplified, the standard procedure of investigation of a potential breach of Article 102 TFEU follows the structure of: (i) establishing the existence of a dominant position of the undertaking on the relevant market(s), (ii) establishing a theory of harm, (iii) finding whether there is compelling evidence of harm to consumers, and (iv) assessing potential efficiencies. Considerable complexity stemming from the very nature of multi-sided digital platforms themselves and economic specifics related to them makes this procedure complex and time consuming. This inflexibility and slowness of the competition enforcement is a risk factor potentially enabling large digital platforms to create their own playing field, while distorting competition on the merits, hampering innovation, and harming consumers. The raising levels of dissatisfaction and concern regarding the unfitness of the ex-post competition rules (Articles 101 and 102 TFEU) for the digital markets finally led several Member States to adopt or at least consider the regulation of large online platforms (European Commission, 2020, Annex 5.4.), ultimately posing a risk of regulatory fragmentation within the EU. To halt the further fragmentation of regulatory obligations addressed to large online platforms, and to allow competition law to react more quickly and in more flexible manner, the Commission proposed in December 2020 a new ex ante regulatory tool applicable on the EU level – Regulation of the European Parliament and of the Council on contestable and fair markets in the digital sector (Digital Markets Act) (the DMA). The DMA was formulated to, on the one hand, provide clarity to large online actors acting as gatekeepers with regard to the ex-ante limitations of their behaviour and, on the other hand, to provide the Commission with a range of new powers and tools to keep the markets contestable and fair. The DMA does this primarily by simplifying the procedure for prosecuting infringements because the gatekeepers will be designated by the Commission according to the rules set by Article 3 of the DMA. The focus of the proceedings will then be on whether the gatekeeper breached some of the obligations set under Article 5 and 6 of the DMA. Some of the elements of the obligations set in Articles 5 and 6 of the DMA directly recapitulate the conclusions of decisions under Article 102 TFEU or the corresponding national competition rules. As a result, the question of whether, after the adoption of the DMA, a single offence might be prosecuted in concurrent proceedings under the DMA and under the competition rules, inevitably arises. The answer to this question lies in the application of the principle of ne bis in idem to such proceedings. The principle of ne bis in idem has also been under review recently, especially in two pending cases before the CJEU. This recent development needs to be properly understood to apply the principle of ne bis in idem to possible concurrence between the DMA and competition proceedings correctly.

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