Digital Ecosystem Constitutionalization of Competition Rules

Introduction

Digital ecosystem constitutionalization of competition rules refers to the transformation of competition law from a relatively technical body of rules concerned with prices, output, market shares, and consumer welfare into a broader constitutional framework governing the distribution and exercise of economic power within digital ecosystems.

Traditional competition law generally asks:

• Is there market power?
• Has a firm abused dominance?
• Has an agreement restricted competition?
• Does a merger substantially lessen competition?
• What remedy should be imposed?

In digital ecosystems, these questions increasingly intersect with constitutional values such as:

• equality and non-discrimination;
• freedom of economic activity;
• procedural fairness and due process;
• privacy and informational autonomy;
• pluralism and media diversity;
• democratic accountability;
• access to essential digital infrastructure;
• separation of economic powers;
• protection against private gatekeeping.

The constitutionalization thesis therefore treats major digital platforms not merely as private businesses but, in certain circumstances, as private rule-makers capable of establishing quasi-constitutional conditions for participation in markets and society.

1. Meaning of Constitutionalization

Constitutionalization occurs when competition principles acquire a status or function resembling constitutional norms.

In the digital economy, this can occur in three ways.

A. Constitutional values influence competition law

Competition authorities and courts interpret competition rules in light of fundamental rights and constitutional principles.

For example:

Platform neutrality may be assessed not only as an economic issue but also as an equality and procedural-fairness issue.

B. Competition law protects constitutional economic structures

Competition law can prevent excessive concentration of private economic power.

The concern becomes:

Who controls the infrastructure through which others exercise economic freedom?

This is particularly important where a single ecosystem controls:

• search;
• operating systems;
• app distribution;
• payments;
• advertising;
• cloud infrastructure;
• identity;
• data;
• marketplaces.

C. Platforms themselves become quasi-regulators

Large platforms establish private rules concerning:

• access;
• ranking;
• visibility;
• monetization;
• interoperability;
• data access;
• account suspension;
• advertising;
• content distribution.

Their rules can therefore have effects comparable to regulatory decisions.

2. Why Digital Ecosystems Require Constitutionalization

Digital ecosystems generate forms of power that conventional competition analysis may not capture adequately.

2.1 Network effects

A platform becomes more valuable as more users join.

This creates a feedback loop:

Users → Data → Better service → More users → More data → Greater market power

Once established, competitors may find it difficult to displace the incumbent.

2.2 Ecosystem leverage

A dominant firm can transfer power from one market into another.

For example:

Operating system → App store → Payment system → Advertising → Consumer data

Competition therefore cannot always be analysed one market at a time.

2.3 Data concentration

Data can function as a strategic competitive resource.

Control over:

• search histories;
• location data;
• purchasing behaviour;
• social graphs;
• advertising data;
• transaction histories

may create barriers to entry and reinforce ecosystem dominance.

2.4 Algorithmic governance

Platforms increasingly use algorithms to determine:

• search ranking;
• recommendations;
• prices;
• advertising exposure;
• seller visibility;
• access to customers;
• content distribution.

This creates a constitutional question:

What procedural constraints should apply when private algorithms exercise market-distributing power?

3. Constitutional Values Embedded in Competition Rules

3.1 Economic freedom

Competition law protects the ability of businesses to enter markets and compete.

Digital gatekeeping can undermine this freedom where access to an ecosystem becomes practically indispensable.

Examples include:

• app developers dependent upon app stores;
• sellers dependent upon online marketplaces;
• publishers dependent upon search engines;
• businesses dependent upon digital advertising;
• software firms dependent upon cloud infrastructure.

3.2 Equality

Digital ecosystems may create discriminatory conditions between:

• the platform's own services;
• independent competitors;
• preferred partners;
• ordinary users;
• business users.

This produces an important competition principle:

A platform should not use infrastructural control to privilege itself without legitimate competitive justification.

3.3 Due process

Platform decisions can have substantial economic consequences.

For example:

• account termination;
• delisting;
• demonetization;
• suspension;
• loss of ranking;
• exclusion from an app store.

Constitutionalization therefore encourages principles such as:

1. notice;
2. reasons;
3. opportunity to respond;
4. review;
5. proportionality.

3.4 Proportionality

Digital regulation increasingly involves balancing competing interests.

A restriction should therefore be assessed through questions such as:

• Is the measure pursuing a legitimate objective?
• Is it suitable?
• Is it necessary?
• Is there a less restrictive alternative?
• Are its competitive costs proportionate?

4. Six Major Dimensions of Digital Competition Constitutionalization

1. Gatekeeper accountability

Dominant platforms may have special responsibilities because their infrastructure is indispensable to competitors.

2. Self-preferencing control

A platform should not automatically favour its own downstream services.

3. Interoperability

Competitors may require access to technical interfaces, data, or networks.

4. Data portability

Users and businesses may need the ability to transfer data to competing services.

5. Algorithmic accountability

Competition authorities may increasingly examine how algorithms affect market access and competitive neutrality.

6. Structural separation

Where behavioural remedies are insufficient, separation between infrastructure and downstream commercial operations may become appropriate.

5. Important Case Laws

1. United States v. Microsoft Corp. (2001)

This is one of the foundational cases for understanding digital ecosystem power.

Microsoft was found to have engaged in exclusionary conduct involving its operating-system monopoly and web browsers.

Constitutionalization significance

The case demonstrates the danger of using control over an infrastructure layer to suppress competition in an adjacent market.

The important principle is:

Control over a foundational digital layer can produce power over downstream markets.

Modern ecosystems reproduce this problem through:

• operating systems;
• app stores;
• cloud platforms;
• browsers;
• search engines;
• payment systems.

6. European Commission v. Google Shopping (2024, CJEU)

The Google Shopping litigation concerned Google's treatment of its own comparison-shopping service within general search results.

The EU courts ultimately upheld the finding of abuse of dominance.

Constitutional significance

The case illustrates the emergence of platform neutrality as a competition principle.

A dominant intermediary controlling access to consumers cannot necessarily use its intermediary position to systematically favour its own downstream service.

This has constitutional implications because the platform effectively controls:

visibility → access → opportunity to compete.

The deeper principle is equality of competitive opportunity.

7. Google Android – Google and Alphabet v Commission (CJEU, 2022)

The Android case concerned Google's contractual practices involving Android devices, including restrictions connected with search and browser distribution.

The CJEU largely upheld the Commission's infringement finding, while modifying the fine.

Constitutional significance

Android demonstrates how control of a technological ecosystem can extend across multiple complementary markets.

The relevant ecosystem can be represented as:

Operating system → device manufacturers → app distribution → search → advertising

Competition law therefore becomes concerned with ecosystem architecture, not simply individual products.

8. Apple v Epic Games Litigation

The Epic Games litigation concerning Apple's App Store provides an important illustration of the constitutional problem of private digital rule-making.

Apple establishes rules governing:

• application distribution;
• payments;
• commissions;
• developer access;
• technical restrictions.

Competition significance

The dispute raises questions concerning:

• platform gatekeeping;
• payment-system restrictions;
• market definition;
• developer access;
• self-regulation;
• private control over distribution infrastructure.

Constitutional significance

The deeper question is:

When a private platform controls the principal route through which businesses reach consumers, how much rule-making power should that platform possess?

This resembles a constitutional problem of private governance of essential economic infrastructure.

9. Epic Games v Google

The Google Play Store litigation similarly concerns platform control over app distribution and payments.

The case illustrates the interaction between:

• network effects;
• app-store governance;
• payment restrictions;
• developer dependence;
• platform commissions.

Constitutionalization significance

The platform is simultaneously:

1. infrastructure provider;
2. market intermediary;
3. rule-maker;
4. competitor.

That combination creates a conflict-of-interest problem.

Constitutionalization responds by asking whether such concentrated powers should be constrained through:

• neutrality;
• transparency;
• procedural safeguards;
• interoperability;
• non-discrimination.

10. Facebook v Bundeskartellamt (CJEU, 2023)

The Facebook case is especially important because it demonstrates the intersection between competition law and fundamental rights/data protection.

The case concerned the relationship between Meta's collection and combination of personal data and its dominant position.

Constitutional significance

The case shows that competition law cannot always treat privacy as an entirely external regulatory issue.

Instead:

Market power + data collection + user autonomy

can become interconnected.

The constitutionalization thesis therefore expands competition analysis beyond price.

11. Bronner v Mediaprint (CJEU, 1998)

Although not a digital-platform case, Bronner remains highly relevant to digital ecosystem constitutionalization.

The case established the restrictive conditions under which a dominant undertaking can be required to provide access to infrastructure under the essential-facilities doctrine.

Digital relevance

The principle becomes significant where platforms control:

• APIs;
• technical interfaces;
• payment infrastructure;
• interoperability;
• cloud services;
• operating-system functions.

The constitutional issue is:

When does private ownership of infrastructure become sufficiently important to justify compulsory access?

12. Magill (Joined Cases C-241/91 P and C-242/91 P)

The Magill litigation is another foundational authority concerning compulsory access to intellectual-property-protected material.

It demonstrates the tension between:

property rights ↔ access ↔ competition

Digital relevance

The same conflict can arise with:

• APIs;
• proprietary datasets;
• interoperability information;
• software interfaces;
• digital infrastructure.

Constitutionalization does not necessarily eliminate property rights. Instead, it seeks to establish principled boundaries between private control and competitive access.

13. From Consumer Welfare to Constitutional Economic Order

Traditional competition law frequently emphasizes:

Will consumers pay lower prices or receive better products?

Digital ecosystems require additional questions:

The shift does not mean abandoning economics.

Rather, economic analysis is supplemented by constitutional principles.

14. Digital Platforms as Private Constitutional Orders

A major theoretical development is the idea that a dominant platform can create a private constitutional order.

Consider a marketplace.

The platform determines:

1. who may enter;
2. what products may be sold;
3. how products are ranked;
4. what fees are charged;
5. which payments are accepted;
6. what data sellers receive;
7. when accounts can be suspended;
8. how disputes are resolved.

This resembles a regulatory system.

The platform therefore performs three functions simultaneously:

Legislator → Regulator → Market participant

That creates an inherent structural conflict.

15. Separation of Economic Powers

Constitutionalization therefore supports a digital analogue of separation of powers.

Traditional constitutional model

Legislature → makes rules

Executive → implements rules

Judiciary → reviews disputes

Digital ecosystem

Platform → makes rules + implements rules + adjudicates disputes + competes in the market

The concentration of these functions can create systemic risks.

Possible responses include:

• independent appeal mechanisms;
• separation of marketplace governance from commercial divisions;
• transparent rule-making;
• independent audits;
• algorithmic accountability;
• interoperability obligations;
• data portability;
• structural separation.

16. Procedural Constitutionalization

One of the most important developments is the constitutionalization of procedure.

Competition law traditionally focuses on substantive conduct.

Digital regulation increasingly asks whether the affected business or user received:

Notice

Was the relevant rule disclosed?

Reasons

Was the decision explained?

Consistency

Are similarly situated firms treated similarly?

Review

Can the decision be challenged?

Proportionality

Was exclusion or restriction necessary?

This is especially relevant where an algorithm determines market access.

17. Algorithmic Constitutionalization

Algorithms can become invisible regulators of economic opportunity.

For example:

Seller → algorithm → ranking → consumer visibility → sales

If ranking is manipulated to favour the platform's own products, the algorithm becomes a mechanism of competitive discrimination.

Similarly:

Driver → algorithm → allocation → income

or:

Advertiser → algorithm → auction → market access

The constitutional concern becomes algorithmic neutrality and accountability.

18. Data as Constitutional Infrastructure

Data is increasingly treated as an infrastructure of digital participation.

A dominant ecosystem may accumulate data from multiple services and use it to reinforce dominance.

This can create a cycle:

Data concentration → superior prediction → better targeting → greater user attraction → more data

Constitutionalized competition law may therefore support:

• data portability;
• interoperability;
• limits on discriminatory data access;
• separation of datasets;
• fair data-sharing obligations.

The objective is not necessarily to force all data to be shared but to prevent data concentration from becoming an unjustifiable barrier to competitive participation.

19. Remedies Under Constitutionalized Competition Law

Traditional remedies include:

• fines;
• behavioural commitments;
• prohibition orders.

Digital constitutionalization expands the remedy toolkit.

Structural remedies

• divestiture;
• business separation;
• functional separation.

Access remedies

• interoperability;
• API access;
• data portability.

Procedural remedies

• notice;
• explanation;
• appeal;
• independent review.

Transparency remedies

• ranking transparency;
• advertising transparency;
• algorithmic auditing.

Governance remedies

• independent compliance structures;
• monitoring trustees;
• internal separation between platform governance and commercial operations.

20. Key Theoretical Principle

The central proposition can be expressed as:

The greater the structural dependence of economic actors upon a digital ecosystem, the stronger the justification for constitutional constraints on the ecosystem's exercise of private market power.

This creates a proportionality spectrum:

Ordinary private firm

↓

Large platform

↓

Dominant platform

↓

Gatekeeper

↓

Systemically indispensable digital infrastructure

As one moves down this spectrum, the justification for heightened duties increases.

21. Constitutionalization Does Not Mean Nationalization

An important distinction must be maintained.

Constitutionalization does not necessarily mean that platforms become public utilities or state entities.

Instead, it means that private economic power is subjected to stronger legal principles where it has systemic consequences.

Thus:

Private ownership ≠ unlimited private regulatory power.

A privately owned platform may retain property and contractual rights while simultaneously being subject to:

• competition obligations;
• non-discrimination;
• transparency;
• interoperability;
• procedural fairness.

22. Major Legal Tensions

A. Property rights vs access

How far can competition law require a platform to provide access to privately controlled infrastructure?

B. Innovation vs regulation

Excessive regulation may reduce incentives to innovate.

C. Privacy vs competition

Data-sharing remedies can increase competition but potentially undermine privacy.

D. Free speech vs platform neutrality

Platform rules can implicate both competition and expression.

E. Efficiency vs fairness

A platform's conduct may produce efficiency while simultaneously concentrating economic power.

F. National sovereignty vs global ecosystems

A platform may operate globally while being regulated by multiple constitutional and competition regimes.

23. Six Core Principles of Digital Competition Constitutionalization

A mature framework can therefore be built around six principles:

1. Competitive equality

Comparable market participants should not be arbitrarily disadvantaged by a gatekeeper.

2. Economic liberty

Digital infrastructure should not unnecessarily prevent meaningful market entry.

3. Procedural fairness

Platform decisions affecting economic participation should be reviewable and reasoned.

4. Institutional separation

A platform should not simultaneously exercise unrestricted rule-making, enforcement, adjudication, and competitive functions.

5. Proportionality

Restrictions on platforms and competitors should correspond to demonstrable systemic risks.

6. Pluralism

Competition policy should preserve a sufficiently open digital economic order rather than allowing one ecosystem to determine all meaningful routes to participation.

Conclusion

Digital ecosystem constitutionalization of competition rules represents a shift from viewing competition law merely as a mechanism for preventing inefficient monopoly toward viewing it as a framework for organising and constraining concentrated private economic power.

The central transformation is:

From market regulation → to governance of digital economic power.

Cases such as Microsoft, Google Shopping, Google Android, Facebook v Bundeskartellamt, Epic Games, Bronner, and Magill illustrate different components of this transition: ecosystem leverage, self-preferencing, gatekeeping, data concentration, access to infrastructure, and the relationship between private control and competitive opportunity.

The emerging constitutional model therefore asks not merely “Is competition harmed?”, but also: