The Digital Markets Act, EU Competition Enforcement and Fundamental Rights: Some Reflection on The Future of Ne Bis in Idem in Digital Markets

This article discusses some of the implications of the entry in force of the Digital Markets Act for the future application of the EU Competition rules in digital markets and in particular for the continuing protection of the right against double jeopardy, enshrined in Article 50 of the EU Charter of Fundamental Rights. It questions whether the possibility that the DMA and Articles 101 and 102 TFEU might apply concurrently might be incompatible with this important safeguard.  On that basis the article argues whether a different approach to it could provide a more balanced response to the need to reconcile the demands of effective competition enforcement with the observance of the DMA’s obligation and the efficient functioning of the ex-ante framework that the new Regulation introduces. 

By Arianna Andreangeli^[1]

I. INTRODUCTION

The Digital Markets Act (“DMA”) marks a significant change in the way in which the EU tackles practices restrictive of competition in the digital services industry. Designed to apply to platform service providers, it sets out a system for the designation of some of them as ‘gatekeepers’ by virtue of their position on the market, their financial strength and the reach of their activities. Gatekeeper designation has considerable consequences for the concerned undertakings, since it subjects them to several pervasive behavioral obligations. Their observance is backed by powers of investigation and sanction, enjoyed by the EU