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

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