A Unified Test for the European Ne Bis in Idem Principle: The Case Study of Digital Markets Regulation.

29 Pages Posted: 27 Oct 2021

See all articles by Giuseppe Colangelo

Giuseppe Colangelo

Università degli Studi della Basilicata; Stanford Law School; LUISS Guido Carli, Department of Business and Management; International Center for Law & Economics (ICLE)

Marco Cappai

Università degli Studi Roma Tre; Luiss Guido Carli University - Department of Business and Management

Date Written: October 27, 2021

Abstract

Although the significance of the ne bis in idem principle is undisputed, it has proven difficult to apply it consistently over the years. In the EU, the Court of Justice case law diverges significantly according to the field of law. Notably, since Aalborg Portland and Toshiba an antitrust-specific threefold condition of idem (same person, same facts, same protected legal interest) has been developed, which is at odds with the twofold identity approach (same offender and same facts) established in Van Esbroek and applied to other areas of EU law, as confirmed in Menci. Against this background, risks and concerns about the fragmentation and inconsistency generated by the absence of a unified test have been heightened by recent legislative initiatives undertaken (at EU and national level) aimed at adapting competition policy to the challenges posed by the emergence of large online platforms. Therefore, digital markets regulation makes even it more pressing to settle the ‘Toshiba or Menci’ dilemma, defining a unified approach to European double jeopardy.

Keywords: ne bis in idem, double jeopardy, antitrust, platforms, gatekeepers, Digital Markets Act, enforcement

JEL Classification: K21, K42, L40

Suggested Citation

Colangelo, Giuseppe and Cappai, Marco, A Unified Test for the European Ne Bis in Idem Principle: The Case Study of Digital Markets Regulation. (October 27, 2021). Available at SSRN: https://ssrn.com/abstract=3951088 or http://dx.doi.org/10.2139/ssrn.3951088

Giuseppe Colangelo (Contact Author)

Università degli Studi della Basilicata ( email )

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Stanford Law School ( email )

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LUISS Guido Carli, Department of Business and Management ( email )

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International Center for Law & Economics (ICLE) ( email )

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Marco Cappai

Università degli Studi Roma Tre ( email )

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Italy

Luiss Guido Carli University - Department of Business and Management ( email )

Viale Romania 32
Rome, 00197
Italy

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