EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

(normally ensured by functioning competition structures) was at the centre of these cases, which is in line with the legal interest identified in Article 102 TFEU. The preamble of the DMA and its Impact Assessment Report both build a strong link between the respective DMA provisions and the legal interests recognized in Commission’s rulings on which the respective provisions are based on. In case the CJEU upholds GA Bobek’s suggestions on application of the three-fold test, the principle of ne bis in idem might preclude concurrent proceedings under these provisions (supposing, of course, that all the other conditions for applying ne bis in idem, as proposed by AG Bobek in Nordzucker , are met). The objective of addressing gatekeepers’ unfair conduct as a separate objective distinct from preserving innovation and consumer choice could be applied in concurrence with proceedings under Article 102 TFEU, because the protected legal interests in both cases are distinct (Article 102 TFEU does not apply unless consumers’ well-being is directly or indirectly harmed). Especially if the enforcement is aimed at gatekeepers’ engagement with smaller competitors (while at the same time not presenting harm to customers), such acts would not be covered by the protected interests under Article 102 TFEU. We can therefore conclude that, similarly to AG Bobek’s proposal for decision in bpost , prosecution for unfair conduct under the DMA should not prevent subsequent competition proceedings under Article 102 TFEU or corresponding national legislation. Nonetheless, a detailed analysis of all suggested obligations set out in Article 5 and 6 DMA regarding whether they aim to address gatekeepers’ unfair conduct and at the same time do not address the objective of ensuring contestable and competitive digital markets for increased innovation and consumer choice, exceeds the scope of this paper. It is not excluded that gatekeepers’ actions covered by several DMA obligations might also fall within the scope of Article 101 TFEU prohibition (namely restrictions in vertical agreements). Nonetheless, the objectives presented by the DMA do not protect the structure of competition itself, and the objectives of the DMA and Article 101 TFEU are thus different, so prosecution for unfair conduct under the DMA should not prevent subsequent competition proceedings under Article 101 TFEU or corresponding national legislation. 4. Conclusion After applying the three-fold test for the application of the principle of ne bis in idem as has been proposed by AG Bobek (i.e., with respect to each specific provision and the legal interest protected by that provision), we conclude that this principle is likely to prevent concurrent application of the DMA and the competition rules (Article 102 and national legislation derived form it) in separate proceedings, in the extent that both sets of rules (i.e., Article 102 TFEU

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