Applying ne bis in idem in the aftermath of bpost and Nordzucker: The case of EU competition policy in digital markets

Abstract

In bpost and Nordzucker, the Grand Chamber of the European Court of Justice finally arrived at a unified test for ne bis in idem, applicable to all areas of EU law. It rejected the antitrust-specific threefold condition of idem (same offender, same facts, and same protected legal interest) developed in Aalborg Portland and Toshiba, and focused solely on material acts, in line with Van Esbroek and Menci. The judgments are extremely timely given the increasing risks of overlapping decisions as a result of recent legislative initiatives undertaken at EU and national level targeting large online platforms. This article maintains that although bpost and Nordzucker are welcome, some relevant issues remain unaddressed and may undermine the sound implementation of the ne bis in idem principle in the digital economy. ne bis in idem, Digital Markets Act, competition law, platforms, enforcement