Regulation of digital actors between compliance with fundamental rights and preservation of the competitive structure of markets

Abstract

The rights-driven approach followed by the European legislator in regulating the digital economy, endorsing some interpretations of Articles 41-47 of the Constitution proposed by the doctrine, is characterized by acting as a guarantee with respect to the enjoyment of fundamental rights of the person, operating in terms of conformity to such claims of the free economic initiative that takes place (also) on (or through) digital markets, thus placing an external limit. This is a regulatory activity carried out by public authorities in light of the recognized inadequacy and dangers inherent in self-regulation by the digital actors themselves which, however, rather than in the exercise of an administrative function of regulation (of the markets), translates into an activity (with much broader boundaries) of conformity of certain activities carried out through new technologies in order to achieve social objectives that, in its absence, would not be achieved. The regulation of the digital phenomenon is therefore difficult to limit exclusively within the scope of an administrative regulatory function, qualifying more properly as a standardization activity, sometimes supported by an administrative implementation-executive activity with variable boundaries and an enforcement activity carried out by administrative authorities (central or peripheral) with specific sanctioning powers, or, having as their aim that of conforming certain economic activities, carried out through technological tools or through access to digital markets, to the fundamental rights of the person in light of the overall framework of constitutional guarantees emerging from the European Union system. The position that this work intends to support is that the Digital Market Act, instead, deserves a separate discussion. In fact, it seems to still operate in order to shape private economic activities, but it impacts on the different level of the organizational structure of digital markets, by implementing an administrative regulation of the markets with the aim of preserving the operation (within them) of the competitive principle in order not to seek efficiency in an economic sense but rather to protect a pluralistic economic and social structure to be understood as a necessary prerequisite of our democratic-constitutional structure founded on the principle of popular sovereignty.