The case for a European Union digital enforcement authority

The European Commission plays the primary role in enforcing the European Union’s digital rules, but is under pressure to relax enforcement to avoid retaliation from the United States. In this context, it risks succumbing and undermining its own authority, or resisting so strongly that it over-uses its enforcement powers to unfairly penalise foreign competitors, driven by the false belief that this would help the EU become less dependent on foreign technology. The risk of upward or downward enforcement bias is problematic because it weakens the effectiveness of the EU’s regulatory framework and distorts market competition dynamics. A country’s ability to set, preserve and enforce its own rules is perhaps the clearest expression of its autonomy. This Policy Brief asks whether a structural change in the institutional setup would improve the enforcement of the EU’s digital rulebook. We ask whether the European Commission should delegate to an independent agency the digitalenforcement powers given to it by the Digital Markets Act (DMA), Digital Services Act (DSA) and Artificial Intelligence (AI) Act. Independent EU agencies with significant enforcement powers, including the power to impose financial sanctions on private entities, already exist. An EU digital authority could follow this template. We ask whether the challenge in outsourcing digital enforcement is outweighed by the expected increase in enforcement accuracy. Furthermore, we assess whether the establishment of an EU digital authority is technically, politically and legally feasible. We find that the case for an independent authority is not equally compelling for each of the three regulations examined: a structural separation of enforcement may be currently unsuitable for the DMA and the AI Act, while it is advisable for the DSA. We thus recommend the establishment of an independent EU agency to enforce the DSA, and provide an outline of its possible structure.