EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

2. Problem Formulation and Methodology Principle of ne bis in idem stipulated in Article 50 of the Charter of Fundamental Rights of the European Union (the Charter) states that “no one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law”. The interpretation of the ne bis in idem principle within the EU law has developed in CJEU decisions over more than 50 years with respect to each element of the definition above (i.e., what constitutes criminal proceedings , what constitutes an offence and when the person has been finally acquitted or convicted in accordance with the law ). The scope of this paper does not allow for a detailed analysis of this development. Instead, it focuses on the issue which is most likely to arise with respect to concurrence of proceedings under competition law and proceedings under the DMA – the identity of the offence. The notion of the identity of an offence has recently been revisited by Advocate General (AG) Bobek in two parallel cases, bpost (C‑117/20) and Nordzucker (C‑151/20). In his Opinions in bpost and Nordzucker , AG Bobek proposes a three-fold test to ascertain the identity of an offence: identity of the offender , of the relevant facts , and of the protected legal interest . Whereas the first two criteria, i.e., identity of the offender and of the relevant facts are applied universally in all legal areas ( van Esbroeck , 2006, C 436/04; Gasparini and Others , 2006, C 467/04; van Straaten , 2006, C 150/05; Kraaijenbrink , 2007, C 367/05; Mantello , 2010, C 261/09), the third criterion of the identical protected legal interest has been developed specifically within the competition law case law ( Toshiba Corporation and Others , 2011, C-17/10; Aalborg Portland and Others v Commission , 2004, C-204/00 P, C-205/00 P, C-211/00 P, C-213/00 P, C-217/00 P, and C-219/00 P; Slovak Telekom , 2021, C-857/19). AG Bobek suggests that the three-fold test should be applied universally (Bobek, 2021, para. 164). Whether this approach is finally adopted as universal by the CJEU or not (both cases in which AG Bobek presented this suggestion are pending), application of the criterion of protected legal interest in the area of competition law is generally accepted ( Toshiba Corporation and Others , 2011, C-17/10; Aalborg Portland and Others v Commission , 2004, C-204/00 P, C-205/00 P, C-211/00 P, C-213/00 P, C-217/00 P, and C-219/00 P; Slovak Telekom , 2021, C-857/19) and so is relevant for the question of whether concurrent enforcement of Article 101 and 102 of the TFEU and the DMA will be compatible with the ne bis in idem principle. The DMAmakes numerous references to competition throughout its text. Indeed, the DMA was at first presented for public consultations as a New Competition Tool (EU, 2020). Later the NewCompetition Tool has been combined with public consultations for Digital Services Act package: an ex ante regulatory instrument of very large online platforms acting as gatekeepers, and the two formed a single

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