Rigid Justice is Injustice: The EU’s Digital Markets Act Should Include An Express Proportionality Safeguard

Ondernemingsrecht issue 2-2022

22 Pages Posted: 16 Feb 2022

See all articles by Maurits Dolmans

Maurits Dolmans

Cleary Gottlieb Steen & Hamilton LLP

Henry Mostyn

Cleary Gottlieb Steen & Hamilton LLP

Emmi Kuivalainen

Cleary Gottlieb Steen & Hamilton LLP

Date Written: December 10, 2021

Abstract

Hard-and-fast rules can be counterproductive. While the EU Digital Markets Act is designed -- and required under EU law -- to be proportionate, the application of its individual obligations risks being disproportionate. To address that problem, the DMA should include an express proportionality safeguard allowing companies to justify their conduct, if they can. We recommend that the DMA include a clause making clear that the application of the DMA’s behavioral rules “shall be proportionate to the provisions’ stated objectives and without prejudice to the gatekeeper’s ability to protect the legitimate interests of its services, including system integrity, security, user safety, quality, functionality, performance and utility”. Including such a clause would improve the legitimacy of the DMA, be consistent with fundamental principles of proportionality under EU law, and come with no material downsides for effective enforcement. And even if such a clause is not explicitly included, gatekeepers should be allowed to raise efficiency defenses and justify their practices on these grounds.

Keywords: DMA, Digital Markets Act, competition law, antitrust, regulation

JEL Classification: K21, K23

Suggested Citation

Dolmans, Maurits and Mostyn, Henry and Kuivalainen, Emmi, Rigid Justice is Injustice: The EU’s Digital Markets Act Should Include An Express Proportionality Safeguard (December 10, 2021). Ondernemingsrecht issue 2-2022, Available at SSRN: https://ssrn.com/abstract=3985562

Maurits Dolmans (Contact Author)

Cleary Gottlieb Steen & Hamilton LLP ( email )

2 London Wall Place
London, London EC2Y 5AU
United Kingdom
02076142343 (Phone)

Henry Mostyn

Cleary Gottlieb Steen & Hamilton LLP ( email )

One Liberty Plaza
New York, NY 10006
United States

Emmi Kuivalainen

Cleary Gottlieb Steen & Hamilton LLP ( email )

Rue de la Loi 57
Brussels, 1040
Belgium

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