Digital Markets, Positive Duties of Protection and the Freedom to Conduct a Business: How to Have Your Cake and Eat It Too
摘要
The Digital Markets Act (‘DMA’) represents a significant legislative initiative within the European Union (‘EU’), serving as the EU’s flagship digital markets legislation. It seeks to promote fairer and more competitive markets within the framework of a social market economy. This chapter emphasises the necessity to reconsider the legitimacy of the DMA, both in terms of its textual content and its practical implementation, by giving due consideration to the freedom to conduct a business as a fundamental right. It is contended that the DMA should not be implemented on the basis of a reductionist perspective that perceives corporations as inherently malevolent or as manifestations of novel forms of power. This perspective is insufficient to consider all corporate subjects and situations. While digital companies and gatekeepers represent new forms of power that require regulation, it is essential to respect their autonomy and freedom under fundamental rights protection. After all, the freedom to conduct a business is one of the main reasons for the DMA, particularly when we consider business users. The text emphasises the role of duties of protection in favour of subjects of fundamental rights (companies), recognising that implementing them entails restrictions on other subjects of fundamental duties (companies). It also highlights the binding effect of these duties of protection on different actors, including the European Union, in place of the state. The chapter concludes that the DMA aims to reconcile the competing rights of gatekeepers and businesses and end users, thus illustrating the diverse nature of business entities and the possibility of mobilising the freedom to conduct business, as with other fundamental rights, as both a justification for interference and an interfered-with right. It is therefore argued that reconciling the freedom to conduct business as a right of defence and a protection imperative is feasible. In order to achieve a right balance, it is believed that the flaws of the DMA text can be compensated for by a consistent and proportionate enforcement strategy.