EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

the subject matter (temporal and territorial) is the same. Second, the application of the ne bis in idem principle requires that the national competition authority “took into account extraterritorial effects of a given anticompetitive conduct”. Importantly, AG Bobek also extends the applicability of the ne bis in idem principle to proceedings which do not result in a fine, for instance if the offender files an application for leniency, thus departing from the CJEU position adopted in the Menci case law ( Menci , 2018, C‑524/15; Garlsson Real Estate and Others , 2018, C‑537/16; Di Puma and Zecca , 2018, C‑596/16 and C‑597/16). It is necessary to stress that the CJEU has not yet decided in any of the cases presented above. Nevertheless, the direction of case law in recent years suggests that the question of legal interest will need to be taken into account when applying the ne bis in idem principle to possible concurrence between competition rules and the DMA. 3.2 Application of the ne bis in idem principle to the possible concurrence between proceedings under Article 101, 102 TFEU and under the DMA The draft DMA declares in its Preamble (recitals 5, 9, and 10) and in Article 1(6) the possibility of parallel application alongside Articles 101 and 102 TFEU. Accepting this declaration without further analysis risks rendering the ne bis in idem principle ineffective. It should also be ruled out that the mere fact that one potentially colliding regulation is ex post (Article 101 and 102 TFEU), and the other is ex ante (the DMA) automatically created a different legal interest. Further analysis is therefore required. Our analysis presented in this paper has two steps. In the first step, we identify legal interests protected by Articles 101 and 102 TFEU and by the example of two DMA provisions (to satisfy the requirement of identifying specific interest protected, the identification needs to be done with respect to each provision of the DMA separately; nonetheless, such analysis concerning each of the obligations set out in the Article 5 and 6 DMA exceeds the scope of this paper). In the second step, we determine whether these identified interests might potentially be considered identical in the sense of the test proposed by AG Bobek. Based on these two steps, we can make the conclusion on whether the principle of ne bis in idem might prevent concurrent procedures under both sets of rules. 3.2.1 First step: Identification of protected legal interests Interests protected by Article 101 and Article 102 TFEU are well documented by the existing competition case law of the CJEU. With respect to Article 101 TFEU, the reason behind the prohibition of selected agreements and other practices amounting to cartels is the fact that “they have

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