EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

legislative initiative to ensure a competitive Single Market for digital services and in particular fair and contestable platform markets (European Commission, 2020, p. 1), resulting in the draft DMA. The DMA is clearly linked to the development of competition case law concerning big digital platforms, as is made clear in the Impact Assessment Report, which connects individual provisions of the DMA with the previous antitrust decisions and investigations. Because the DMA developed from competition case law, the issue of identity of protected principles will inevitably arise. The DMA itself states that the concurrent application of its provisions (to minimise harmful effects of gatekeepers’ practices ex ante ) and proceedings under EU and national competition rules ( ex post intervention) will be possible (European Commission, 2020, part 1). This is reiterated in the preamble of the DMA. Recital 5 states that Articles 101 and 102 remain applicable to gatekeepers, but their scope is “limited to certain instances of market power (e.g., dominance on specific markets) and of anti-competitive behaviour”, whereas the DMA regulates challenges which are not effectively addressed by competition law, and also applies to gatekeepers who are not necessarily in a dominant position. Recital 10 claims that the DMA’s objective is “complementary to, but different from that of protecting undistorted competition on any given market”. This raises concerns regarding the legal certainty as the essence of ne bis in idem principle seems to be rather neglected or overridden by formalistic approaches. To establish legal certainty about whether the principle of ne bis in idem applies in relation to competition law and the DMA, it is necessary to take a close look at the legal interests protected by the DMA and the EU and national competition law. The next part of this paper first looks at the identity of an offence concept, as presented in recent AG Bobek’s Opinions (focusing on the identity of the protected legal interest), and then applies these findings to potential concurrences between proceedings conducted under Article 101 and 102 TFEU and under selected provisions of the DMA. 3.1 Recent approach to the ne bis in idem principle in bpost and Nordzucker In bpost , the ne bis in idem principle is applied when both the regulatory proceedings and the competition law proceedings are held against the same offender with regard to the identical facts. At first, bpost (the provider of postal services in Belgium) was fined by the national regulatory authority for postal services in Belgium for breaching a sectoral regulation by its rebate system, which supposedly discriminated against some of its clients. This decision was subsequently annulled 3. Analysis and Problem Solution

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