Double Jeopardy of Article 102 TFEU and the DMA – the Challenges of a Multi-Level Enforcement System

This article addresses the complexities and challenges of enforcing Article 102 TFEU and the Digital Markets Act in the context of the principles of ne bis in idem and proportionality under Articles 50 and 52(1) of the Charter of Fundamental Rights of the European Union. It critically examines the intersection of the abuse of dominance prohibition with the ex ante regulatory framework established by the DMA, aimed at curtailing the anti-competitive behaviours of designated gatekeepers in digital markets. By mapping out the ne bis in idem and proportionality framework, the article navigates through the evolving legal landscape, highlighting the shift towards a restriction-justification approach in applying the ne bis in idem principle in competition law. The analysis delves into the alignment of competition law and DMA enforcement, considering their overlapping objectives and the potential for dual enforcement to infringe upon the ne bis in idem principle. After identifying multiple scenarios, some more probable than others, of duplicated enforcement, the article focuses on the role of the European Competition Network in the allocation of cases and coordination mechanisms. The pitfalls experienced in the parallel enforcement of most favoured nation clauses against Booking.com are used to illustrate areas of improvement within the ECN. Different options for strengthening the coordinating and cooperation capacities within the ECN are weighed up. Furthermore, a possible redistribution of enforcement and investigatory powers between the European Commission and national competition authorities regarding the enforcement of the DMA and competition law is considered.