Fairness in the Digital Markets Act

Abstract

(Series Information) European Papers - A Journal on Law and Integration, 2023 8(1), 17-23 | European Forum Highlight of 12 April 2023 | (Abstract) This Highlight proposes an interpretation of the notion of “fairness” in the context of the EU Digital Markets Act (DMA), and explores whether it could become an evaluative principle for gatekeeper compliance with Articles 5 and 6 of the Act. There are good reasons to believe that fairness refers to equity, i.e. a distribution of legal entitlements that takes into account individual characteristics of the subjects. Gatekeepers have different obligations compared to non-gatekeepers. By imposing that discrimination, the legislator aims for a different allocation of economic rents and opportunities in the platform economy. But apart from the DMA’s vague reference to a “significant disequilibrium in rights and obligations” in certain relationships with platforms, there is no concrete understanding of a fair or equitable distribution. Fairness, as presented in the DMA, is inherently indeterminate. It is not a legal standard, but a “gut feeling”. This is not necessarily a bad thing. The fairness language simply confers power from economists to lawyers in competition agencies and courts, who will be required to find an elusive “disequilibrium in rights and obligations”. Fairness leaves a certain margin of appreciation to any enforcer responsible for deciding the scope of gatekeeper obligations.

Keywords

• :digital markets act
• platform economy
• fairness
• equity
• distribution
• legal standard