This article discusses the parallel enforcement of the Digital Markets Act (DMA), Article 102 TFEU, and national (competition) laws by the Commission and national competition authorities. Parallel application entails various risks that do not appear to be adequately and completely addressed in the DMA. The authors recommend that new guidance and enforcement protocols are put in place to ensure a harmonized enforcement approach in the EU.
MP 2024/12 - The DMA, Article 102 TFEU and national (competition) laws: the conundrum of parallel application
MP 2024/12 - The DMA, Article 102 TFEU and national (competition) laws: the conundrum of parallel application
RS
R.A. StruijlaartAttorney-at-law at Loyens & Loeff N.V. in Amsterdam
JD
J.W. DibbitsManaging associate at Linklaters LLP in Brussels.
MW
M.Ph.M WiggersAttorney-at-law at Loyens & Loeff N.V. in Amsterdam.
Bijgewerkt tot 12 juni 2024
Introduction
In the EU, unilateral conduct by dominant undertakings was thus far only addressed under the prohibition of abuse of a dominant position as laid down in Article 102 of the Treaty on the Functioning of the European Union (TFEU), its national equivalents,1 and other national competition or sector legislation.2 Now, however, the Digital Markets Act (DMA), which has become fully applicable as of 7 March 2024, may also apply to conduct that infringes Article 102 TFEU or national legislation.
In this article, we shall discuss the nature of parallel enforcement (paragraph 1), as well as its treatment under the DMA (paragraph 2). Subsequently, we shall discuss the legal limits of parallel enforcement by the Commission and NCAs based on examples of parallel enforcement in EU competition law prior to DMA enforcement (paragraph 3a) and the protection given to undertakings under the ne bis in idem principle (paragraph 3b). We shall then discuss the type of cases that may be subject to parallel enforcement (paragraph 4). At the time of writing of this article, there are five ongoing European Commission (Commission) investigations under Article 102 TFEU against undertakings, which are also designated gatekeepers under the DMA (paragraph 4a). In addition, there are more than ten ongoing national investigations against gatekeepers under Article 102 TFEU and/or its national equivalents (paragraph 4b).3 We shall also briefly discuss the parallel enforcement of the DMA and national sector legislation and of the DMA and competition rules prohibiting other unilateral conduct (paragraphs 4c and 4d).
Finally, we shall discuss the potential risks that parallel enforcement may entail and how these risks could be addressed (paragraph 5). Some expect that the DMA is unlikely to significantly change abuse of dominance enforcement by the Commission and national competition authorities (NCAs).4 If this proves to be true, then the parallel application of the DMA and Article 102 TFEU or national competition or sector legislation to the same conduct as described above may become a structural and relatively common phenomenon.
1. Parallel enforcement
For good order, it must first be established what should be understood by parallel enforcement. Parallel enforcement occurs where the same conduct of the same designated gatekeeper5 over the same time period is investigated by the Commission under the DMA, and:
by the Commission under EU competition law; or
by at least one NCA under EU or national competition law or national sector legislation.
In particular the second situation entails the risk of divergent or even conflicting outcomes, since the Commission may be expected to fully take into account its own investigations, but may not be able to do the same in case of parallel investigations carried out by NCA’s.
2. DMA provisions regarding parallel investigations
The DMA is intended to bring about a full harmonisation of national laws that aim to ensure contestable and fair markets.6 It provides that ‘Member States shall not impose further obligations on gatekeepers by way of laws, regulations or administrative measures for the purpose of ensuring contestable and fair markets’.7 The DMA also precludes Member States from imposing obligations on gatekeepers outside the scope of the DMA if these obligations ‘result from the fact that the relevant undertakings have the status of a gatekeeper’. The Commission is the sole enforcer of the DMA, but NCAs can initiate proceedings against a gatekeeper with a view of determining non-compliance of a gatekeeper with the DMA. Enforcement of the DMA by NCAs is ‘to support the Commission in its role as sole enforcer’.8 NCAs cannot issue fines and can only enforce the DMA if they have been given the relevant enforcement powers under national law. If necessary, the Commission may prevent or end a national DMA non-compliance investigation by opening an investigation under the DMA.9
The DMA is, however, without prejudice to the application of Article 102 TFEU, its national equivalents, and other competition rules prohibiting unilateral conduct.10 The latter are understood to include regimes such as the German § 19a Gesetz gegen Wettbewerbsbeschränkungen (GWB) (which will be discussed in more detail in paragraphs 4a and d below), but only to the extent that these impose obligations on gatekeepers that go beyond the DMA.11 The European Competition Network (ECN) plays a central role in the cooperation and coordination efforts. NCAs must inform the Commission of each first formal investigative measure against a gatekeeper under EU or national competition law or when they intend to impose any obligation on a gatekeeper.12 NCAs shall not take decisions which run counter to a decision by the Commission under the DMA.13 The Commission can end a national abuse of dominance investigation.14 The DMA states that the scope of Article 102 TFEU is ‘limited to certain instances of market power, for example dominance on specific markets and of anti-competitive behaviour, and enforcement occurs ex post and requires an extensive investigation of often very complex facts on a case by case basis’.15
Consequently, it may be concluded that parallel enforcement of the DMA on the one hand and Article 102 TFEU or national competition laws on the other hand is explicitly foreseen in the DMA. Therefore, it may reasonably be expected to occur in practice. However, as we will discuss in more detail below, parallel enforcement may lead to procedural, substantive and jurisdictional issues in various circumstances.