Procedural Fairness and the DMA: Some Comments on the Draft Implementing Regulation

By: Alfonso Lamadrid (Chillin’ Competition)

The European Commission recently released a 10-page, 12 article, draft Implementing Regulation on “detailed arrangements” for the conduct of proceedings under the Digital Markets Act (“DMA”). The Commission is inviting comments until 6 January. Here are some of mine:

1. On the importance of procedural fairness under the DMA. Under the DMA administrative action and discretion will not be as constrained by substantive rules as it is in other settings, including under competition law. In my view, the increased margin for administrative discretion requires the reinforcement of traditional procedural safeguards, not their relaxation. Procedural safeguards are not there to protect gatekeepers (or third parties), but to uphold the rule of law, and to protect the Commission too. Strong procedural safeguards would legitimize the DMA’s enforcement and ensure legally sound outcomes. When it comes to due process requirements, the EU should not be satisfied with minimum standards of protection.

2. The overarching tension between “expediency” and procedural safeguards. The draft reveals a constant tension, visible practically in every provision, between “the possibility for individuals to exercise their rights of defence and the expediency of the proceedings” (Article 10(1)). In my view, however, it is evident that these two interests do not rank at the same level. Rights of defence trump “expediency” considerations. According to the Oxford dictionary, by the way, “expediency” refers to “an action [that] is useful or necessary for a particular purpose, although it may not be fair or right”.

The CJEU has made very clear that:

the aim of promptness – which the Commission, at the stage of the administrative procedure (…) must seek to achieve – must not adversely affect the efforts made by each institution to establish fully the facts at issue, to provide the parties with every opportunity to produce evidence and submit their observations, and to reach a decision only after close consideration of the existence of infringements and of the penalties (see, with respect to the reasonable period referred to in Article 5(3) of the ECHR, Wemhoff, paragraph 17, and, with respect to Article 6(1) of the ECHR, Neumeister, paragraph 21)” (emphasis added).

A strong procedural framework would, moreover, not compromise the DMA’s objectives. Particularly in an ex ante system, one could expect enforcement to be exceptional, and necessarily limited in scope. Would it not make sense to adopt every precaution to ensure the “fairness” of those proceedings?