EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

and particular provisions of Articles 5 or 6 of the DMA) protect identical legal interest. This will be the case mainly for the provisions of Articles 5 or 6 of the DMA that aim to protect the objective to ensure contestable and competitive digital markets for increased innovation and consumer choice applied in concurrence with Article 102 TFEU, which aims to protect the same interest. In case of Articles 6(1)(b) and 6(1)(d) of the DMA, the result of our analysis showed the possible identity of such protected legal interest. Shall the AG Bobek’s suggestions be confirmed in respective CJEU decisions, the rule regarding concurrent application of the DMA and Article 102 TFEU expressed in Article 1(6) of the DMA must inevitably be reassessed. Such considerations (incl. potential exclusion of Article 102 TFEU application from cases prosecuted under several Articles 5 and 6 of the DMA) can take place in necessary detail only after the CJEU adopts its rulings in bpost and Nordzucker cases. It is necessary to keep in mind that the test for the applicability of the ne bis in idem principle has multiple parts, and this paper only looked into one specific principle (the identity of protected legal interest). Future works might consider the other parts of the test, i.e., establishing identity of offender and of facts (especially the temporal and territorial scope of the conduct) in the area regulated by the DMA. Acknowledgements: This paper was created with generous help and contribution of Mgr. Anna Cervanová, LL.M. References [1] Opinion of Advocate General M. Bobek, bpost (C-117/20), EU:C:2021:680. [2] Decision of the European Commission of 18 July 2018, Google Android , AT.40099, C/2018/4761. [3] Decision of the European Commission of 27 June 2017, Google Shopping, AT.39740, C/2017/4444 final. [4] Decision of the European Commission of 6 March 2013, Microsoft (Tying) , AT.39530, C/2013/1210 final. [5] European Commission (2017). Antitrust: Commission fines Google €2.42 billion for abusing dominance as search engine by giving illegal advantage to own comparison-shop ping service [online]. Available at: https://ec.europa.eu/commission/presscorner/de tail/en/IP_17_1784. [6] European Commission (2020). Executive Summary of the Impact Assessment Re port, Accompanying the document Proposal for a Regulation of the European Parlia ment and of the Council on contestable and fair markets in the digital sector (Digital Markets Act) Staff Working Document, 15 December 2020. SWD (2020) 364 final. [7] EU (2020). Single Market – new complementary tool to strengthen competition enforce ment . Available at: https://ec.europa.eu/info/law/better-regulation/have-your-say/initia-

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