From a Right-Based Approach to Competitiveness? The EU Digital Omnibus Reform

Abstract

The European Union has advanced its agenda towards regulatory simplification. At first glance, the Digital Omnibus can indeed be considered a recalibration of EU digital policy from a rights-based paradigm towards an approach increasingly shaped by competitiveness and efficiency. However, while the omnibus proposals raise legitimate concerns about the possible dilution of the Union’s constitutionally oriented approach, they do not merely represent a simplification effort and a retreat from regulation. This paper argues that the approach towards simplification has not reduced the path towards the regulatory expansion of European digital policy. While focusing towards simplification, the Union approach seems to increase risks for fundamental rights and legal certainty while continuing to expand its digital agenda, as in the case of the Digital Services Act. This dual movement, presented as a coupling of simplification and regulatory expansion, is likely to make European digital regulation even more convoluted, thus increasing risks for fundamental rights and legal certainty. By looking at the goals of European digital constitutionalism, which focuses on the reframing of rights and power in the algorithmic society, the paper contends that the EU’s priority should shift away from this dual track and should not rely on simplification as a way to address constitutional questions which would require a broader strategy as in the case of enforcement.