The Devil is in the Procedure: Private Enforcement in the DMA and the DSA

Abstract

The regulation of the digital ecosystem is one of the priorities of the European Union, and the Digital Markets Act [hereinafter the DMA] and the Digital Services Act [hereinafter the DSA] are two of the main instruments used in this area. They aim at ensuring contestability, fairness, safety, and transparency in the digital single market by altering the power imbalances that characterised the relations between online platforms and individual and/or business users. In this context, the role of individuals will be paramount to the fulfillment of the obligations of both Regulations and private enforcement will be a crucial tool in this regard. Against this framework, this paper aims at connecting the well-settled principles of EU law, namely, the principle of effective judicial protection and the Rewe principles, with the new developments in the digital atmosphere, specifically in terms of the private means of redress. To that end, this article will first give an overview of the DMA and the DSA, as well as the question of private enforcement under EU law. Second, the possibilities and conditions for individuals to enforce their rights correlative to the obligations laid down in the DMA and the DSA privately will be studied. Finally, this paper will compare the situation regarding private enforcement in both Regulations with the previous rules in this matter through a series of examples that will facilitate an understanding of the rationale behind the introduction of the new legal framework.