The Digital Markets Act and Private Enforcement: Proposals for an Optimal System of Enforcement
Eleanor M. Fox Liber Amicorum, Antitrust Ambassador to the World (Concurrences, 2021), Forthcoming
14 Pages Posted: 31 Aug 2021 Last revised: 1 Sep 2021
Date Written: August 31, 2021
The DMA Proposal is silent about private enforcement, although the general view takes this as granted. Indeed, as the Commission’s Proposal currently stands, national courts would apply Articles 5 and 6 and enforce the related obligations in civil litigation. However, the prospect of unlimited private enforcement raises concerns about fragmentation, especially in view of the novel nature of the DMA rules. For this reason, the EU legislator would be well-advised to introduce certain limitations on private enforcement and provide for a rule of precedence for public enforcement. Private enforcement should be allowed in its follow-on but not in its stand-alone form. This limitation could be revisited after a number of years and once a body of precedent on the DMA has been built. The DMA should also include concrete mechanisms of co-ordination and co-operation with the European Commission, with a view to safeguarding the consistent application of its rules in the Union.
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