The ne bis in idem principle (the prohibition of double jeopardy) is a fundamental protection under EU law. It has long been of particular importance in the decentralised system of EU competition law enforcement brought about by Regulation 1/2003.
While the mechanism for cooperation between the European Commission and national competition authorities provided for in Reg 1/2003 had tended to work well in the past, recent shortcomings in cooperation have led to inefficient and inconsistent enforcement, especially in the tech sector. The status quo in this regard is contrary to the letter and spirit of Reg 1/2003 and undermines the legal certainty that used to exist for companies under investigation. The European Commission and national competition authorities must therefore act to ensure consistent application of case allocation rules and uphold ne bis in idem protection in line with the underlying objectives of Reg 1/2003.
The Digital Markets Act proposal risks similar shortcomings in cooperation between the Commission (charged with enforcing the DMA) and a number of national authorities (charged with enforcement of national DMA-like tech regimes). What is more, in addition to the potential for overlap and inconsistency in enforcement between the DMA and the DMA-like obligations at national level, the promulgation of the DMA creates an additional layer of potential overlap and inconsistency – between enforcement under competition law-derived regulation (in the form of the DMA and its national equivalents) on the one hand and competition rules on the other hand. Legislators should therefore improve the DMA in order to define appropriate limits to enforcement and to prevent a proliferation of parallel and/or overlapping investigations relating to the same conduct.
This article was originally published on SSRN on March 16, 2022.