A Reading of the Digital Markets Act in the Light of Fundamental Rights

Abstract

The Digital Markets Act or DMA is a Regulation of the European Union. It introduces a set of obligations directed at companies designated as ‘gatekeepers’. The DMA aims to ensure contestable and fair markets in the digital sector by protecting business users and end users of core platform services. Non-compliance with the obligations laid down in the DMA can lead to behavioural and structural measures in addition to fines and penalties. The DMA’s enforcement is centralised in the European Commission. Civil liability in the context of private enforcement is not excluded. Although usually read and interpreted through the lens of ‘economic’ competition law and related areas (unfair commercial practices, consumer protection, data protection and privacy), the DMA’s obligations reflect judgements of practical concordance (harmonisation or fair balance) between fundamental rights. Gatekeepers’ freedom to conduct a business is a fundamental right enshrined in Article 16 of the Charter of Fundamental Rights of the European Union. In the DMA, it is harmonised with various conflicting and colliding rights and interests (including other players’ freedom to conduct a business). The freedom to compete is inherent in the two-fold objective of ensuring contestability and fairness for the markets in the digital sector. Even if the DMA is not competition law, it is a close relative, at least. Balancing conflicting rights and interests must comply with what we call ‘conflicts dogmatic’ and obey the Charter of Fundamental Rights. Although the freedom to conduct a business is a highly capillary right, there is no abstract hierarchy between fundamental rights (or between holders of rights). It is possible to legitimise the DMA without ignoring the freedom to conduct a business as a fundamental right and businesses as fundamental rights holders. The purpose of this text is to uncover the fundamental rights behind the DMA.