Fairness in Digital Markets: an empty buzzword or a requirement for effective rights of platforms users?

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Fairness is one of the most frequently invoked terms in the public debate around digital market regulation and enforcement. Its use is particularly prominent in the European Union’s recent legislative initiatives, including the Digital Markets Act (DMA). Yet, opinions diverge on the legitimacy and utility of invoking fairness in this context. Critics argue that the concept is vague, politically motivated, or even a pretext for overregulation. Others defend it as a foundational value, necessary to restore balance in relationships between digital platforms (and particularly gatekeepers) and their users, including both businesses and consumers.

This divergence is not new. Fairness has long been a controversial and multifaceted term in both competition law and consumer protection. In competition law, fairness is invoked to justify interventions against exploitative conduct or exclusionary abuses, examples include excessive pricing cases or refusal to supply or licence. However, the application of the concept is often criticized for lacking objective criteria. In consumer law, fairness appears more prominently, for instance in the Unfair Commercial Practices Directive (UCPD) or the Unfair Terms Directive. Yet here too, its broad formulation leads to debates about its actual legal precision and enforceability.

Despite this background of ambiguity, the DMA appears to use the notion of fairness with clearer intent and more legal structure. It does not use the term merely as a moral or political appeal but embeds it within a systemic and enforceable framework. A close reading of the DMA’s wording and its overall design reveals that fairness is not just rhetorical — it carries legal meaning and value.

Restoring balance through ensuring the effectiveness of rights

The DMA introduces fairness not as an abstract ideal but as a mechanism to rebalance the rights and obligations in digital markets between gatekeeper platforms and business or end users (as defined in recital 33 of the DMA’s preamble). Gatekeepers often enjoy a structurally entrenched position, allowing them to unilaterally impose terms, limit data access, or self-preference their own services. The DMA seeks to address this imbalance by introducing a set of do’s and don’ts directly applicable to these gatekeepers.

In this context, fairness should equal to effectiveness of user rights. Not only the formal recognition of those rights, but their practical utility. This interpretation is consistent with the principle of effectiveness established in EU law and enshrined in the case law of the Court of Justice of the European Union. In particular, the Court has consistently held that EU law must be interpreted and applied in a way that ensures the effective protection of the rights conferred on individuals by EU legislation.

By incorporating fairness in this way, the DMA does not break new ground but rather specifies and reinforces the broader EU principle of effectiveness. It translates general regulatory aims into specific legal obligations and rights, thus giving fairness a functional and enforceable meaning.

Fairness as a specification of the principle of effectiveness

The Court’s case law provides support for viewing fairness as a lens through which to understand and apply the principle of effectiveness. Indeed, the Court has often emphasized that individuals must be able to assert their rights effectively before national courts. The DMA inevitably needs to build on this tradition by not only recognizing the rights of platform users but also implying that such rights must be enforceable.

In this way, fairness serves as a bridge between abstract principles and practical enforcement. It moves beyond vague aspirations and becomes a criterion for evaluating both gatekeeper conduct and the efficacy of the legal remedies available to users.

Effective judicial protection and private enforcement

Once we accept that fairness equals effectiveness of rights, a direct implication is that users must have access to judicial protection. This includes the ability to enforce their rights under the DMA through ‘private enforcement’ i.e., legal actions brought by individuals or businesses harmed by DMA non-compliance.

However, this brings us to one of the current blind spots in the DMA’s architecture: the lack of a dedicated framework for private enforcement.

Despite positioning itself as a regulation that empowers users, the DMA does not include a clear mechanism or procedural pathway for private parties to enforce its provisions. Unlike in competition law, where Regulation 1/2003 and the Antitrust Damages Directive establish tools for private enforcement, the DMA relies too heavily on public enforcement by the European Commission.

This creates a disconnect between the recognition of rights and their practical enforceability.

Barriers to private enforcement in digital markets

At present, platform users who wish to enforce their rights under the DMA face two major hurdles:

1. Absence of an EU-level procedural framework. The DMA does not provide explicit standing for private litigants. Nor does it clarify the role of national courts in handling disputes (although admits in Article 39 DMA that role). This may be regarded as following and repeating the evolution of private enforcement in competition law, where harmonization efforts have taken much time and debates.

2. Unattractive national legal frameworks. In most Member States, private enforcement of regulatory instruments like the DMA would fall under rules for claiming damages, not reflecting the specific features of DMA non-compliance and harm it produces. These national systems vary widely in terms of cost, duration, and effectiveness.

Without addressing these matters, the promise of fairness risks remaining hollow.

Fairness: with teeth or just talk?

The use of fairness in digital market regulation has often been derided as vague or ideological. Yet in the context of the DMA, fairness is more than a buzzword. It is closely tied to the principle of effectiveness: a legal standard with deep roots in EU law. It serves both a conceptual and practical role in defining what kind of conduct is acceptable and what rights platform users should have.

However, without effective private enforcement mechanisms, the notion of fairness risks being undermined. If users cannot effectively assert their rights in court, then those rights are of limited practical value. The EU and Member States should consider how to build a coherent enforcement framework that complements public oversight and allows fairness to be more than an aspiration.

Written by dr. Miłosz Malaga