Interpreting the EU Digital Markets Act Consistently With the EU Charter’s Rights to Privacy and Protection of Personal Data

Abstract

Depending on implementation details, the EU Digital Markets Act (DMA) may have negative consequences regarding information privacy and security. The DMA’s interoperability mandates are a chief example of this problem. Some of the DMA’s provisions that pose risks to privacy and to the protection of personal data are accompanied either by no explicit safeguards or by insufficient safeguards. The question is then: how to interpret the DMA consistently with Articles 7-8 of the EU Charter of Fundamental Rights which ground the rights to privacy and the protection of personal data? Using the example of the prohibition on restricting users from switching and subscribing to third-party software and services (Article 6(6) DMA), I show that Charter-compatible interpretation of the DMA may depart from the intentions of the DMA’s drafters and even be perceived by some as significantly limiting the effectiveness of the DMA’s primary tools. However, given that—unlike the GDPR—the Charter takes precedence over a mere regulation like the DMA, such policy objections may have limited legal import. Thus, the true legal norms (legal content) of the DMA may be different than what a superficial reading of the text could suggest or, indeed, what the drafters hoped to achieve.

Keywords: Digital Markets Act, DMA, privacy, security, interoperability