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

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