Philosophical Impetus to Fair Digital Markets: Ascertaining Fairness Theorems for Just Market Settings[*]This article has been peer-reviewed.

By Nada Ina Pauer[**]Senior Research Fellow, Intellectual Property and Competition Law, Max Planck Institute for Innovation and Competition.

1. Introduction

In European digital regulation, fairness has emerged as a central objective of market governance in response to profound shifts in economic power structures.[1]See Regulation (EU) 2022/1925 of the European Parliament and of the Council of 14 September 2022 on contestable and fair markets in the digital sector (Digital Markets Act) [2022] OJ L243/1 (DMA) recitals 2, 5, 11; Regulation (EU) 2023/2854 of the European Parliament and of the Council of 13 December 2023 on harmonized rules on fair access to and use of data (Data Act) [2023] OJ L2023/2854 (DA) recitals 5, 26, 28; Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market For Digital Services (Digital Services Act) [2022] OJ L277/1 (DSA) recital 39, art 46; Regulation (EU) 2024/1689 of the European Parliament and of the Council of 13 June 2024 laying down harmonized rules on artificial intelligence (Artificial Intelligence Act) [2024] OJ L2024/1689 (AI Act) recitals 8, 27. Digital markets are increasingly characterized by concentrated platform power and the capacity of a small number of firms to shape market architecture, access conditions, and informational environments.[2]Jonathan Kanter, ‘Digital Markets and “Trends Towards Concentration’ (2023) 11(2) Journal of Antitrust Enforcement 143, 143–148.; Rupprecht Podszun, ‘Introduction’ in Rupprecht Podszun (ed), Digital Markets Act – Gesetz über digitale Märkte (Nomos 2023) paras 3–4. While traditional competition law safeguards the freedom of economic conduct primarily through ex post intervention,[3]Ernst-Joachim Mestmäcker and Heike Schweitzer, Europäisches Wettbewerbsrecht (3rd edn, Nomos 2014) § 3, para 1. this structural transformation has prompted the European Union to adopt a new governance paradigm. The Digital Markets Act seeks to ensure fair and contestable markets; the Digital Services Act aims for fair online terms and trading, the Data Act promotes fair access to and use of data; and the AI Act embeds requirements of ethical and fair deployment of artificial intelligence.[4]Reg. (EU) 2022/1925 – DMA; Reg. (EU) 2023/2854 – DA; Reg. (EU) 2022/2065 – DSA; Reg. (EU) 2024/1689 – AI Act. Across these instruments, fairness functions as a normative benchmark distinct from classical antitrust analysis and signals a broader regulatory ambition to recalibrate power asymmetries in digital environments.

At the same time, fairness is often criticized as indeterminate and susceptible to shifting socio-economic interpretations. Yet normative evolution does not preclude operationalization. This article argues that philosophical conceptions of fairness offer structured criteria capable of guiding legal assessment in digital markets. Theories of distributive justice and political morality have long addressed the allocation of resources, opportunities, and decision-making power under conditions of structural inequality.[5]Amartya Sen, ‘Equality of What?’ in The Tanner Lectures on Human Values (University of Utah Press 1980).; John Rawls, A Theory of Justice (Belknap Press 1971); Ronald Dworkin, Sovereign Virtue: The Theory and Practice of Equality (Harvard University Press 2000). Even where these accounts adopt an individualized understanding of justice, they provide analytical tools for evaluating corporate conduct once the concept of group agency is acknowledged.[6]Cf. Herlinde Pauer-Studer, ‘A Non-Mentalistic Account of Corporate Agency and Responsibility’ (2024) 50(3) Social Theory and Practice 459, 459–481; Jimmy Lewis-Martin, ‘What Kinds of Groups are Group Agents?’ (2022) 200 Synthese 283. Given the prevalence of unilateral and structurally abusive practices in digital industries, developing principled metrics to assess power imbalances is essential.[7]This is, succinctly put, due to the familiar characteristics of network effects, economies of scope and scale as well as data-lock-ins favoring large incumbents. See Erik Hovenkamp, ‘Platform Antitrust’ (2019) 44(4) Journal of Corporation Law 713. Philosophically informed fairness standards can illuminate when digital market conduct undermines innovation capacity, distorts competitive opportunity, or constrains meaningful private autonomy. The paper therefore examines whether established theories of justice can contribute to a coherent and workable concept of fairness in European digital market law.