Participation of third parties in the public enforcement of the Digital Markets Act: between democracy and technocracy

Abstract The Digital Markets Act (DMA) forms a building block of the EU’s emerging digital constitution to rein in corporate power with in the digital internal market. While its aim is to ensure contestability and fairness of digital markets where ‘gatekeepers’ are present, its core objective is to benefit ‘the Union’s economy as a whole’ and ‘ultimately of the Union’s consumers’. This article analyses how the DMA’s public enforcement framework implements this objective by focusing on the participation of third parties. While the legal framework of the DMA’s application heavily relies on the participation of third parties (business users, consumers, civil society organizations), it does not grant any formal role in its supervision or enforcement mechanisms, and limits their participation to that of passive informants. Their limited and informal participation is justified by the Commission’s priority for efficient, and swift decision-making concerning complex technical assessments in dynamic digital markets. Despite such justification, the lack of third parties’ formal participation raises concerns about the transparency, and accountability of the Commission’s administrative decision-making. By balancing arguments of procedural efficiency and legitimacy, the article analyses how the public interests underlying the DMA are aligned with its enforcement framework for third parties’ participation, and which alternative ways could better facilitate third parties’ participation.