Hostname: page-component-74656f9884-7drmj Total loading time: 0 Render date: 2026-11-04T06:12:30.305Z Has data issue: false hasContentIssue false
  • English
  • Français

The Promise and Perils of Private Enforcement under EU Law: The Digital Services Act in Context

Published online by Cambridge University Press:  08 October 2026

Dominik Dworniczak Open the ORCID record for Dominik Dworniczak [Opens in a new window]
Dominik Dworniczak*
Affiliation:
Institute for Work, Organisation and Transformation (FAA-HSG), University of St. Gallen, St. Gallen, Switzerland Department of Private Law, University of Salzburg, Salzburg, Austria
*
Email: dominik.dworniczak@unisg.ch
Rights & Permissions [Opens in a new window]

Abstract

This article offers a conceptual account of private enforcement under EU law, focusing on the DSA. It argues that the damages action under the DSA derives directly from Union law and cannot be reduced to a declaratory reference to national law. Situated within regulatory theory, it shows how private enforcement may complement public enforcement while raising concerns about access to justice, compliance incentives, and democratic legitimacy. It advances a purposive, systemic reading confining national rules to a residual role, demonstrates risks from national case law, draws on GDPR case law, and reconsiders damages actions in the context of representative actions.

Keywords

actions for damagesDSAprivate enforcementrepresentative actionsjudicial dialogue

Information

Type
Research Article
Information
Cambridge Yearbook of European Legal Studies , First View , pp. 1 - 17
Creative Commons
Creative Common License - CCCreative Common License - BY
This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0), which permits unrestricted re-use, distribution and reproduction, provided the original article is properly cited.
Copyright
© The Author(s), 2026. Published by Cambridge University Press on behalf of Centre for European Legal Studies, Faculty of Law, University of Cambridge.

I. Introduction

The Digital Services Act (DSA) carries a promise to reshape European rules on platform governance.Footnote 1 It aims to establish a safe, predictable, and trustworthy online environment that enables recipients of services to exercise their fundamental rights, including freedom of expression and information, the right to non-discrimination, the freedom to conduct business, and the attainment of a high level of consumer protection.Footnote 2 To that end, it regulates dynamically evolving business models on digital markets (‘intermediary services’), such as online social networks and platforms, which not only allow businesses and consumers to disseminate and access information and engage in transactions in diverse ways but also create risks and challenges, particularly with regard to illegal online content and disinformation.Footnote 3 As the DSA has been applicable since 17 February 2024, the question arises whether the realisation of its ambitious regulatory objectives is adequately ensured through an effective enforcement architecture.

Recent EU digital legislation demonstrates that the legislator has, to a large extent, opted for robust public enforcement. This is evident under the General Data Protection Regulation (GDPR),Footnote 4 where oversight rests on national data protection authorities (DPAs), coordinated through the European Data Protection Board and complemented by the European Data Protection Supervisor.Footnote 5 A similar pattern emerges in other regulatory regimes, such as the Digital Markets Act (DMA) and the EU AI Act, both of which rely heavily on public enforcement.Footnote 6 The DSA follows this approach, centring its enforcement architecture on public authorities—primarily the Digital Services Coordinators designated in the Member States and, in the case of very large online platforms and search engines (VLOPs/VLOSEs), the European Commission.Footnote 7

The DSA’s enforcement architecture is not confined to public enforcement. Article 54 DSA grants recipients of the service a right to claim compensation from providers of intermediary services for damage or loss arising from infringements of obligations laid down in the Regulation.Footnote 8 While the right to claim compensation under Article 82 GDPR has given rise to extensive academic debate,Footnote 9 Article 54 DSA has thus far attracted comparatively limited attention beyond doctrinal commentaries.Footnote 10 Given that both regulatory theory and the Court of Justice of the European Union (CJEU) recognise actions for damages as an essential complement to public enforcement,Footnote 11 this article examines private enforcement under the DSA through the prism of Article 54 DSA.Footnote 12

The article advances the argument—on a teleological and systemic reading—that Article 54 DSA establishes a self-standing Union remedy and cannot be reduced to a merely declaratory reference to national law. A declaratory reading is understood here as an interpretation according to which Article 54 DSA merely confirms the availability of an action for damages under national law.Footnote 13 By contrast, the self-standing character of Article 54 DSA means that the provision provides a legal basis for deriving the core substantive requirements of liability, in light of the DSA’s regulatory objectives and its place within the Union legal order. This does not deny that effective judicial remedies may arise independently from general principles of Union law,Footnote 14 nor does it entail exhaustive harmonisation of national liability law. It does, however, imply that national rules play a residual, gap-filling role and are to be applied consistently with the DSA’s objectives, with national procedural modalities remaining subject to the principles of equivalence and effectiveness.

Building on this, the article assesses how liability principles developed in the Court’s case law on other regulatory regimes—most notably its case law on Article 82 GDPR—may inform the interpretation of Article 54 DSA, taking account of the DSA’s regulatory objectives. Finally, it contends that, although the Representative Actions Directive (RAD)Footnote 15 applies only partially to the DSA, representative actions may nonetheless find support beyond the RAD framework, in particular through an interpretation of Article 53 DSA informed by the Court’s reading of Article 80(1) GDPR in Meta Platforms.Footnote 16

The structure of the article follows the development of the main argument. Section II situates private enforcement within broader regulatory theory. Section III examines the legislative history of Article 54 DSA, and Section IV offers a teleological and systemic reading of that provision. Section V analyses the first national ruling interpreting Article 54 DSA and considers its implications for private enforcement under the DSA. Section VI turns to the Court’s case law on Article 82 GDPR to assess how it may inform the future interpretation of Article 54 DSA. Section VII addresses representative actions as a means of strengthening private enforcement under the DSA. Finally, Section VIII summarises the main argument and reflects on its implications for the further development of private enforcement under the DSA.

II. Private enforcement in regulatory theoryFootnote 17

It is widely acknowledged that private enforcement complements public enforcement,Footnote 18 which can, in certain respects, be regarded as deficient.Footnote 19 It would be unrealistic to expect public enforcement alone to ensure compliance with a regulatory regime.Footnote 20 Private enforcement becomes necessary where ex ante regulation and its public enforcement mechanisms prove less effective than intended, where public regulatory failure occurs or where remedial gaps persist.Footnote 21

Private enforcement, particularly in the form of an action for damages, empowers individuals in a manner that public enforcement does not and cannot.Footnote 22 It enables individuals not only to pursue their own interests but also to seek redress for infringements of their rights by publicly acknowledging and addressing wrongdoing and the harm it has caused.Footnote 23 In doing so, private enforcement contributes to the attainment of regulatory objectives while providing remedies for infringements of individual rights under the relevant regulation.Footnote 24 This is the promise that private enforcement entails.

While compelling, this account of private enforcement is not without risks.Footnote 25 Individuals with limited resources, differing perceptions of efficiency, or a lack of confidence in the fairness of the enforcement system may be unable to enforce their rights effectively.Footnote 26 Moreover, private enforcement may empower judges who lack policy expertise to engage in de facto policymaking, generate inconsistent or contradictory judicial doctrine, discourage voluntary compliance, and raise concerns of democratic legitimacy.Footnote 27 Another challenge arises from the problem of incomplete law: since private enforcement before courts is reactive, it may not always secure adequate compliance in situations where an active regulatory authority could intervene ex ante.Footnote 28 Where, in addition, private enforcement relies on general legal standards, the extent to which it promotes or diminishes overall compliance with the regulation remains uncertain.Footnote 29 These are the principal perils of private enforcement.

A more balanced view, however, suggests that these shortcomings can be mitigated through the institutional design of private enforcement. It cannot, nevertheless, be ignored that a defective design—particularly one based on regulatory tortsFootnote 30—could render private enforcement not only an ineffective instrument for ensuring compliance but also a source of delegitimisation for the regulatory framework as a whole.Footnote 31

Where, as is the case under the DSA, public enforcement retains a substantial role, its structural limitations mean that an ineffective system of private enforcement risks undermining the regulatory objectives. And while it can be argued that the development of liability principles under Article 54 DSA through the dialogue between the CJEU and national courts may exacerbate some of the perils associated with private enforcement, particularly those relating to judicial policymaking and democratic legitimacy, leaving the development of private enforcement under the DSA entirely to national courts applying their respective national liability rules would risk even greater fragmentation of the enforcement of the DSA.Footnote 32 The challenge, therefore, is not whether liability principles will be developed by courts but whether that development contributes to a coherent judicial doctrine on the conditions of liability under Article 54 DSA, with due regard to effective access to justice and democratic legitimacy.Footnote 33 In this respect, judicial dialogue between national courts and the CJEU may better mitigate those concerns than a system in which national courts develop liability principles independently under their respective national liability and procedural rules.

III. Private enforcement under the DSA: design or accident?

The question of private enforcement under the DSA reflects a broader trend in the evolution of regulatory regimes in EU law, particularly in the context of digital markets. The GDPR exemplifies this development, combining robust public enforcement mechanisms with a general liability clause in Article 82 GDPR.Footnote 34 Comparable regulatory models, integrating public and private enforcement, can be identified in other regimes,Footnote 35 whereas certain regimes, such as the AI Act or the DMA, do not explicitly provide for private enforcement.

Although private enforcement under the DSA follows this regulatory trend, Article 54 DSA constitutes an ‘imperfect’ liability rule.Footnote 36 This is apparent not only from the formulation of the provision but also from the limited interpretative guidance offered in the recitals to the DSA. The contrast is striking when compared with the comprehensive framework established by the Damages Directive and the detailed interpretative guidance contained in the recitals of the GDPR.Footnote 37 This should be viewed in the context of the travaux préparatoires of the DSA.

A. Travaux préparatoires

A closer examination of the legislative history of Article 54 DSA reveals that the Commission did not initially intend to establish any form of action for damages. In the Proposal and the accompanying Impact Assessment, the Commission did not envisage a general liability rule for damages arising from infringements of the Regulation, despite its emphasis on the effective enforcement of rules governing digital services.Footnote 38

During the consultation on the Proposal, several consumer organisations advocated amendments aimed at facilitating a faster resolution of compensation claims for consumers.Footnote 39 At a very early stage of the legislative process, the European Economic and Social Committee explicitly recommended that the DSA include a general liability rule, drawing attention to the question of private enforcement from the outset.Footnote 40

Subsequently, following discussions within the European Parliament,Footnote 41 a reference to damages appeared among the amendments tabled in the draft transmitted to the Council.Footnote 42 In its early version, Article 44 of the Parliament’s proposal referred only to direct damages.Footnote 43 This was later broadened to encompass all types of damage, while the accompanying recitals placed particular emphasis on the conditions for exemption from liability. Another notable feature of this proposal was that organisations representing recipients of the service—alongside the recipients themselves—were to be entitled to proportionate and effective remedies, with specific emphasis on the right to compensation.Footnote 44 This aspect was not retained in the final version of the DSA, where the focus shifted towards alternative avenues of redress available under consumer protection rules,Footnote 45 affecting the question of representative action.Footnote 46

B. (Re)constructing private enforcement under the DSA

In its final version, Article 54 DSA grants recipients of the service a right, pursuant to Union and national law, to claim compensation for damage and loss arising from a provider of intermediary services’ non-compliance with its obligations under the DSA. It thereby confers on private actors a right to seek damages; however, by virtue of its sparse formulation and equal reliance on Union and national law, it constitutes what may be described as an ‘imperfect’ liability rule.Footnote 47 A number of issues arise in this context, including the definition of damage,Footnote 48 questions of causation, fault, unlawfulness, and the burden of proof,Footnote 49 as well as the legal character of the remedy—whether it is contractual, quasi-contractual, or tort in nature.Footnote 50 Further uncertainty concerns the applicable law under private international law,Footnote 51 the relationship between this provision and consumer protection rules, in particular those on representative actions,Footnote 52 and, more broadly, the extent to which the compensatory remedy under Article 54 DSA is determined by national law or instead constitutes a self-standing Union remedy complemented by national law.

Neither the concise wording of Article 54 DSA, nor Recital 121, nor the legislative history provides extensive interpretative guidance. The wording of Article 54 DSA and the travaux préparatoires cannot, however, be the sole determinants of its interpretation. Rather, Article 54 DSA must ultimately be interpreted in light of the DSA’s regulatory objectives and its place within the Union legal order. It is for this reason that the following section argues that Article 54 DSA should not be understood as merely accidental or as limited to a declaratory reference to national law, but instead proposes a constitutional framing of the relationship between Union and national law.

IV. A view from the top: a constitutional framing of private enforcement under the DSA

Article 54 DSA may be described in terms of complementarity, insofar as, according to its wording, both Union and national law remain simultaneously applicable.Footnote 53 However, the notion of complementarity offers no guidance as to the extent to which Union and national law interact. It does not clarify whether Union law applies only where national law does not provide a legal basis, or whether their relationship should instead be understood as a vertical one.Footnote 54 This, in turn, calls into question the assertion that Article 54 DSA is merely declaratory of national lawFootnote 55—a view that, in any event, cannot be derived from the legislative history, as discussed earlier.

Accordingly, it is argued that, although neither the wording of Article 54 DSA nor its legislative history is conclusive, a teleological and systemic reading supports the conclusion that Article 54 DSA establishes a self-standing Union remedy.Footnote 56 Such a reading mitigates the risk that the level of protection envisaged by the DSA may fall below the intended standard as a result of disparities in national laws.

A. A purposive and systemic reading

The DSA, as reflected, inter alia, in Recitals 4 and 9, departs from a model based on minimum harmonisation. It seeks to establish uniform, effective, and proportionate mandatory rules to prevent fragmentation of the internal market and to ensure legal certainty.Footnote 57 A merely declaratory reading of Article 54 DSA would jeopardise these objectives by making the availability and practical effectiveness of actions for damages contingent on national liability regimes, which diverge, for instance, in the degree to which they are victim-orientedFootnote 58 or in their underlying doctrinal structures.Footnote 59 Such an approach overlooks the regulatory consequences of actions for damages, notably their preventive effect on market conduct.Footnote 60 Reliance on national law in the context of private enforcement under the DSA therefore entails a risk of uneven preventive effects across the Member States, calling into question the effectiveness of the DSA’s uniform mandatory rules.

Beyond these teleological considerations, a further aspect is systemic, deriving from the nature of the legal act itself. As a regulation, the DSA is directly applicable and goes beyond the cooperative mechanisms characteristic of directives.Footnote 61 In this respect, the choice of instrument weighs against interpretations that treat Article 54 DSA as merely declaratory in relation to national law. A purely declaratory reading would moreover raise a further concern: absent any identifiable independent function of the action for damages under Article 54 DSA, it would be difficult to explain—on the assumption of a rational lawmakerFootnote 62—why a directly applicable regulation would include a provision that merely restates the availability of existing national remedies.

Conversely, Article 54 DSA is best read as establishing an action for damages for breaches of obligations laid down by the Regulation—an action that derives directly from Union law.Footnote 63 This does not entail exhaustive harmonisation of liability law. Rather, it excludes an understanding of Article 54 DSA as merely declaratory in relation to national law. On this reading, and given the concise drafting of the provision, national rules play a residual, gap-filling (ie, complementary) role,Footnote 64 to the extent necessary to give effect to the right to compensation under Article 54 DSA and provided that they do not undermine the effective attainment of the Regulation’s objectives (effet utile).Footnote 65 Where, however, liability principles can be determined by reference to Union law itself—insofar as Union law lays down autonomous requirements, as interpreted by the Court—they take precedence and must be applied in light of those objectives. Procedural matters, by contrast, remain governed by national law, which determines the procedural modalities of private enforcement, subject—where Union procedural rules are absent—to the principles of equivalence and effectiveness (procedural autonomy).Footnote 66

B. A plea for judicial cooperation

The reading of Article 54 DSA advanced earlier implies that the action for damages under that provision derives directly from Union law.Footnote 67 This, in turn, entails that the principles governing liability under Article 54 DSA will require further clarification and elaboration, through either legislative intervention or judicial interpretation by the Court.Footnote 68 In the absence of the former, the broad wording of Article 54 DSA therefore necessitates closer and more sustained cooperation between national courts and the Court.

Judicial practice concerning Article 82 GDPR illustrates the relevance of such cooperation. Although one might expect that, as an ‘imperfect’ liability rule, Article 54 DSA could foster a process of domestication of private enforcement under the DSA, a similar development arose under Article 82 GDPR, notwithstanding its more robust formulation and the absence of any explicit reference to national law.Footnote 69 Moreover, the very first judgment on the interpretation of Article 82 GDPR was delivered as late as in 2023,Footnote 70 five years after the GDPR began to apply.Footnote 71 Whether national courts will be more inclined to make preliminary references in the context of the DSA than they were under the GDPR remains uncertain. Recent national case law provides little evidence of such a shift to date (as of July 2026), and no request for a preliminary ruling has yet concerned the interpretation of Article 54 DSA.

V. A view from the bottom: Landgericht Berlin

Recent national case law provides further insight into how private enforcement under the DSA might evolve.Footnote 72 The Regional Court of Berlin (Landgericht Berlin) offered in October 2025 an interpretation of Article 54 DSA that diverges from the reading advanced earlier.Footnote 73 Although the decision represents only a single national instance and does not permit broader generalisation, it illustrates one interpretative approach that national courts may adopt when confronted with Article 54 DSA.

The case concerned a group of researchers from a non-governmental organisation (NGO) who sought to obtain information pursuant to Article 40(12) DSA, prior to the German federal and European Parliament elections, from an online platform designated as a VLOP. The VLOP refused to disclose the requested information. Acting as a court of second instance, the Regional Court of Berlin upheld the claim that the VLOP should have provided the information as requested.Footnote 74 Given that this refusal constituted an infringement of the DSA by an intermediary service provider established in Ireland, and that the NGO qualified as a recipient of the service established in Germany, the court, in order to establish its jurisdiction under Article 7(2) Brussels Ia Regulation,Footnote 75 relied on Article 54 DSA.Footnote 76

For the purposes of this article, the most significant aspect of the national court’s reasoning emerges in relation to the character of the remedy under Article 54 DSA. The Regional Court of Berlin interpreted Article 54 DSA through the prism of national doctrine, concluding that Article 54 DSA corresponds to an ‘imperfect liability rule’.Footnote 77 On that basis, it relied on principles of the national liability regime that accord primacy to restitution in kind (Naturalrestitution)Footnote 78 and held that the provision of the requested information constituted appropriate and sufficient compensation. Without expressly engaging with the DSA’s regulatory objectives, including the role of timely data access for public-interest research ahead of elections, the court considered this approach compatible with Union law.

The question arises whether restitution in kind, even if, in principle, treated as a form of compensation, could in this case have provided full compensation for the harm suffered. Providing the information only after the German federal election raised doubts as to whether it could amount to full compensation, given that the NGO could have used the data for its research during the electoral period. A further, and more fundamental, issue arises under Article 40(12) DSA, which entitles researchers to access the relevant information. The absence of a prima facie quantifiable economic loss on the part of the NGO does not necessarily imply that the data, or the right to use it, lacked measurable economic value. In this respect, national courts might consider assessing the damage by reference to the notional licence fees applicable to comparable datasets, which might have formed part of full compensation under Article 54 DSA.Footnote 79 This line of reasoning serves merely as an illustration of how, under national tort law, Article 54 DSA could give rise to a different understanding of full compensation.Footnote 80

More broadly, the court’s engagement with Union law in connection with Article 54 DSA remained limited. Its reasoning was effectively anchored in domestic literature, leaving largely unaddressed the implications of the provision’s placement in a directly applicable regulation and the interpretative questions governing the relationship between Union and national law in this area. This is perhaps unsurprising given that Article 54 DSA was invoked primarily to establish jurisdiction.Footnote 81 Yet establishing jurisdiction rested on a contested interpretation of that provision. Given that the interpretation of Article 54 DSA was necessary for the Regional Court of Berlin to give judgment and was grounded primarily in national doctrine, the conditions for a reference to the Court under the preliminary ruling procedure were arguably met, even though no reference was made.Footnote 82 In the meantime, other national courts also appear to have followed the Regional Court of Berlin’s approach to jurisdiction, while no reference concerning Article 54 DSA has yet been made to the CJEU.Footnote 83

Given the current wording of Article 54 DSA and the concurrent availability of remedies under national law, there is a tangible risk that national courts will refrain from making preliminary references. Although a degree of interpretative divergence is inherent in a decentralised system of enforcement under Union law, sustained reliance on national doctrinal frameworks may risk compromising the effective attainment of the DSA’s objectives.

VI. Lessons from the GDPR

A. Private enforcement under the GDPR and the DSA

The risk of a gradual domestication of Article 54 DSA—by making the action for damages contingent on national liability regimes—raises the question whether, and to what extent, the Court’s case law can inform its interpretation. In this respect, recent case law on Article 82 GDPR offers interpretative guidance,Footnote 84 particularly since the core liability principles under that provision have now been developed,Footnote 85 some of which reflect general principles governing actions for damages under Union law.Footnote 86

Without providing an exhaustive survey of the Court’s case law, eight recurrent liability principles under Article 82 GDPR can be identified. First, a compensation claim requires three elements: an infringement, damage, and a causal link between them.Footnote 87 Second, an infringement alone—without demonstrating and proving damage—is insufficient to establish a right to compensation.Footnote 88 Third, the claimant must prove the existence of damage, even if it is non-material and consists solely of fear of possible future harm.Footnote 89 Fourth, the concepts of damage (including non-material damage) and compensation for the damage suffered constitute autonomous concepts of EU law.Footnote 90 Fifth, while the modalities of compensation are determined by national law,Footnote 91 compensation, irrespective of the seriousness of damage,Footnote 92 must be full and effective; in certain circumstances this may include symbolic sums or apologies.Footnote 93 Sixth, Article 82 GDPR sets out a catalogue of exemptions from liability, which must be invoked and proven by the controller or processor—in other words, the burden of proof for exemption from fault-based liability lies with the controller or processor, who must demonstrate the absence of fault.Footnote 94 Seventh, the burden of proving the absence of infringement rests with the controller or processor, not with the data subject. Eighth, the liability regime under the GDPR is compensatory and not punitive: it requires full and effective compensation for the damage suffered but does not allow for additional penalties.Footnote 95 Consequently, the criteria employed for setting the amount of administrative fines are not applicable when assessing compensation claims.Footnote 96

There is no reason to assume that the open-ended wording of Article 54 DSA will not give rise to similar difficulties that surround Article 82 GDPR. The first preliminary ruling on Article 54 DSA is likely to be delivered only after a considerable time interval following the date when the Regulation began to apply (in the case of the GDPR, it began to apply in 2018, with the first ruling delivered in 2023).Footnote 97 In the meantime, national courts and recipients of services will lack clarity on how Article 54 DSA should be interpreted. Moreover, the recognition of non-material damage under Article 82 GDPR as an autonomous concept of EU law has required the CJEU to provide increasingly detailed interpretations of what falls within that concept.Footnote 98 In other words, national courts must await the Court’s interpretation. A similar difficulty could arise if the Court were to recognise ‘damage’ under Article 54 DSA as an autonomous concept. Finally, from a broader policy perspective, the question arises whether Member States retain flexibility in defining the modalities of compensation. Given the high degree of integration of the digital market, it may be preferable for the types of compensable damage, together with the corresponding forms of compensation, to be recognised as autonomous concepts at Union level, while Member States retain discretion in quantifying compensation.Footnote 99 In other words, leaving the modalities of compensation to the Member States poses a risk of a gradual domestication of the liability regime.Footnote 100 This risk is particularly pronounced under Article 54 DSA, which, unlike Article 82 GDPR, explicitly refers to national law.Footnote 101

B. Spill-over effect?

A sense of déjà vu arises. Uncertainty persists as to, inter alia, whether the concept of damage—material, non-material, or physical—constitutes an autonomous concept of EU law, which exemptions from liability apply, how the burden of proof is to be allocated, and whether fault on the part of the provider of intermediary services is required. Although these difficulties echo those encountered under Article 82 GDPR, the principal elements of liability under that provision have now been elaborated in recent case law of the Court. One might therefore expect a spill-over effect in the interpretation of Article 54 DSA, providing a constructive starting point for the further development of private enforcement under the DSA. The DSA, however, differs from the GDPR in several respects.

Both the nature of infringed duties and the characteristics of the providers of intermediary services differ, particularly in the case of VLOPs.Footnote 102 Whereas the GDPR does not distinguish between large and small data controllers or processors, the DSA makes this distinction explicit within its legal framework, imposing additional obligations on VLOPs.

The standing of recipients of the service differs from that of data subjects. Recipients may include businesses, and providers of intermediary services are not limited to VLOPs.Footnote 103 The weaker–stronger party dynamic that often underpins data protection law is therefore less pronounced,Footnote 104 since businesses in EU law occupy a different position from natural persons, whether consumers or data subjects. This can affect the interpretation of Article 54 DSA: in certain settings professional entities may plausibly present themselves as the weaker party,Footnote 105 while in others the weaker-party rationale may be of limited, or no, relevance.

Recital 121 of the DSA is considerably more concise compared with the corresponding Recital 146 of the GDPR, which may either prompt greater reliance on national law or lead to an increased number of preliminary references to the Court.Footnote 106 The available interpretative material is limited, which may undermine the legitimacy of extensive judicial interpretation by the Court.Footnote 107 Nevertheless, cross-interpretation in EU law is not unprecedented.Footnote 108

Finally, the explicit reference to national law in Article 54 DSA could lead to further interpretative challenges. It does not, in itself, preclude the recognition of concepts such as ‘damage’ or ‘full compensation’ as autonomous concepts of EU law.Footnote 109 It may, however, reinforce incentives for national courts, as illustrated by the Regional Court of Berlin, to resolve disputes within national doctrinal frameworks rather than to seek clarification from the Court; and it may equally inform the Court’s own willingness or reluctance to recognise autonomous concepts in this setting.

Although the Court’s case law delineates core liability principles under Article 82 GDPR, it does not offer a ready-made template for interpreting Article 54 DSA. Any reliance on that case law must therefore remain selective and context-sensitive, with particular regard to the specific settings in which infringements of the DSA occur. This may entail differentiated liability standards—for example, between VLOPs and other intermediary service providers, or depending on whether the relationship concerns consumers or other categories of recipients of the service. Ultimately, it will fall to national courts to address these issues in litigation, and to the Court to provide further guidance—particularly as regards whether, and under what conditions, principles developed under the GDPR may be extended to the DSA by analogy.

VII. Representative actions and the DSA

The reading of Article 54 DSA advanced earlier leaves unaddressed the risks associated with private enforcement identified in Section II. In particular, structural limits of individual enforcement—including limited resources, differing perceptions of procedural efficiency, and limited confidence in the fairness of the enforcement system—may prevent recipients of the service from enforcing their rights effectively.

Collective enforcement mechanisms available under Union law therefore warrant closer attention, insofar as they can support the effective exercise of rights under the DSA and promote the coherent and uniform application of the Regulation throughout the Union.Footnote 110 This section examines, first, the partial applicability of the Representative Actions Directive (RAD) to the DSA (A) and, second, the extent to which representative actions may nonetheless find support, beyond the RAD framework, through an interpretation of Article 53 DSA by analogy with the Court’s interpretation of Article 80(1) GDPR (B).

A. Partial application of the Representative Actions Directive to the DSA

Recent years have witnessed a growing debate on the collective enforcement of consumer law,Footnote 111 driven in part by persistent divergences among Member States.Footnote 112 The RAD, adopted in 2020, aims to strengthen the effectiveness of consumer protection enforcement and to improve consumers’ access to justice,Footnote 113 notwithstanding the criticism it has faced.Footnote 114 In that context, Annex I to the RAD includes the DSA, allowing representative actions to be brought against traders for infringements of its provisions.

The action for damages under Article 54 DSA aligns closely with the RAD’s remedial framework. Article 7(4) RAD, read in conjunction with Article 9(1) RAD, provides a basis for compensatory relief in representative actions, expressly listing compensation alongside repair, replacement, price reduction, contract termination, and reimbursement of the price paid. Moreover, since the RAD provides that redress measures apply ‘as appropriate and as available under Union or national law’, it can encompass the action for damages under Article 54 DSA.Footnote 115

The central difficulty lies not in the type of redress envisaged but in the RAD’s personal scope. Articles 1 and 2 RAD stipulate that the Directive establishes rules to ensure a representative action mechanism for the protection of the collective interests of consumers and that such actions may be brought against traders for infringements of the Union law provisions listed in Annex I which harm, or may harm, those interests.Footnote 116 This limitation of personal scope to consumers has been noted in the literature and, to some extent, critically assessed.Footnote 117 Some Member States, such as Germany, have extended the national transposition to cover small businesses;Footnote 118 yet such extensions sit uneasily with the Directive’s consumer-focused design, particularly given that ‘recipients of the service’ under the DSA may include both consumers and non-consumers.Footnote 119

Accordingly, while the RAD may prove relevant for enforcing the DSA, it can do so only where recipients of the service qualify as consumers.Footnote 120 This conclusion also sits well with the legislative history discussed earlier: although representative actions featured in amendments proposed in the European Parliament, they were not retained in the DSA as adopted.Footnote 121 Recital 121 instead emphasises that the Regulation is without prejudice to redress possibilities available under consumer protection law—leaving representative actions for non-consumer recipients of the service outside the RAD’s personal scope.

B. ‘Meta platforms’ redux?

Although the RAD does not apply to all recipients of a service, it remains conceivable that representative actions—irrespective of whether the recipients qualify as consumers—could nevertheless be pursued beyond the RAD framework, by analogy with the Court’s case law on Article 80(1) GDPR.

The GDPR aims to protect the fundamental rights and freedoms of natural persons, in particular the right to the protection of personal data (Art 1(2) GDPR). Unlike the RAD, its personal scope is not confined to consumers but extends to all natural persons.Footnote 122 This is also reflected in Article 80(1) GDPR, which allows data subjects to mandate a not-for-profit body, organisation, or association to exercise, inter alia, the right to seek compensation under Article 82 GDPR.

This point is noteworthy because, in Meta Platforms, the Court accepted that the interests of data subjects may be represented (ie, are not precluded by Art 80(1) GDPR) by qualified entities acting on behalf of consumers in representative actions under national unfair commercial practices legislation. In other words, by recognising that the interests of certain consumers might be endangered by the practices of data controllers or processors, the Court opened the possibility of representing a broader group of data subjects under Article 80(1) GDPR.Footnote 123

A similar development may be envisaged under the DSA. Although Article 53 DSA does not mirror Article 80(1) GDPR in all respects, both provisions recognise the possibility for mandated bodies, organisations, or associations to act on behalf of the persons whose rights are protected by the respective Regulations. Whereas Article 80(1) GDPR expressly extends that mandate to compensation claims under Article 82 GDPR, Article 53 DSA confines it to the lodging of complaints against providers of intermediary services. Read in the light of Meta Platforms, Article 53 DSA could nevertheless support an interpretation that qualified entities—such as consumer organisations—may act on behalf of recipients of the service even where those recipients do not necessarily qualify as consumers. Although Article 53 DSA does not itself provide a procedural basis for representative compensation claims, the reasoning underlying Meta Platforms may, by analogy, support an interpretation under which qualified entities may pursue representative compensation claims under Article 54 DSA where national procedural law provides the necessary procedural basis. This could mitigate the structural limits of individual enforcement and enhance the effectiveness and accessibility of private enforcement under the DSA. At the same time, Article 53 DSA, like Article 80(1) GDPR, does not itself provide a self-standing procedural basis for representative actions. Any such actions would therefore require an appropriate basis in the relevant national law, subject, where Union procedural rules are absent, to the principles of equivalence and effectiveness.

VIII. Conclusion

The promise of private enforcement in regulatory theory lies in its capacity to address infringements where public enforcement proves less effective, where regulatory failures occur, or where remedial gaps persist. Its perils arise where concerns of access to justice, judicial empowerment, disincentives for voluntary compliance, or democratic legitimacy come to the fore. Private enforcement under the DSA illustrates both aspects: it embodies the promise of private enforcement while simultaneously making its perils explicit.

The legislative history of Article 54 DSA provides little substantive material for assessing the promise and perils of private enforcement under the DSA. Yet, on a teleological and systemic reading, Article 54 DSA is neither merely accidental nor confined to a declaratory function in relation to national law. It is instead best understood as establishing a self-standing action for damages. On this reading, and given the concise drafting of the provision, national rules play a residual and gap-filling role, to the extent necessary to give effect to the right to compensation under Article 54 DSA and provided that they do not undermine the effective attainment of the Regulation’s objectives. Where Union law itself, as interpreted by the Court, determines liability principles (as under Art 82 GDPR), those principles take precedence and must be applied in light of the Regulation’s objectives. Procedural matters, by contrast, remain governed by national law, which determines the procedural modalities of private enforcement, subject to the principles of equivalence and effectiveness.

Emerging national case law suggests, however, that Article 54 DSA may still be read as declaratory of national law. The decision of the Regional Court of Berlin illustrates how Article 54 DSA can be approached predominantly through domestic doctrine, with only limited engagement with the Regulation’s regulatory objectives. Whether such an approach can effectively address remedial gaps or regulatory failures remains uncertain. If it were to prevail—even where the interpretation of Article 54 DSA was decisive for establishing jurisdiction under the Brussels Ia Regulation—private enforcement under the DSA would risk remaining fragmented, with national courts relying primarily on domestic law and leaving broader concerns of access to justice and compliance largely unaddressed.

To fulfil the promise of private enforcement under the DSA, this article has argued for a reconstruction of the action for damages under Article 54 DSA informed by the Court’s case law on Article 82 GDPR. That case law offers guidance in identifying core liability principles, although any cross-regime reliance must remain sensitive to the DSA’s regulatory objectives. At the same time, recognising the self-standing action for damages under Article 54 DSA as deriving directly from Union law does not, in itself, overcome the structural limits of individual enforcement. This directs attention to collective enforcement mechanisms. While the RAD applies only partially to the DSA, representative actions may nonetheless be supported by an interpretation of Article 53 DSA by analogy with the Court’s interpretation of Article 80(1) GDPR in Meta Platforms, allowing actions for damages under Article 54 DSA to be pursued in a manner comparable to those under Article 82 GDPR, where the relevant national law provides the procedural basis for collective litigation.

Whether private enforcement under the DSA will fulfil its promise or confirm its perils remains to be seen. In the absence of likely legislative intervention in the near future, the evolution of the action for damages under Article 54 DSA will depend on the quality of judicial dialogue between the Court and national courts.

Acknowledgements

This article was written while the author was a postdoctoral researcher (Swiss Government Excellence Scholarship) at the Center for Regulation and Contract Law at the University of Zurich.

References

1 Regulation (EU) 2022/2065 on a Single Market for Digital Services (Digital Services Act) [2022] OJ L277 (DSA). For details on the DSA’s promise, see Caroline Cauffman and Catalina Goanta, ‘A New Order: The Digital Services Act and Consumer Protection’ (2021) 12 European Journal of Risk Regulation 758, 759. For further discussion, see Martin Husovec, Principles of the Digital Services Act (Oxford University Press, 2024) 6–9.

2 See Recitals 1–3 of the DSA. For further details, see Folker Wilman, Saulius Lukas Kaléda, and Paul-John Loewenthal, The EU Digital Services Act: A Commentary (Oxford University Press, 2024) 10–11 Rz 32–33.

3 For an overview of the DSA, including consumer-law aspects, see Cauffman and Goanta (n 1); Husovec (n 1) 19–32. For an analysis covering both the DSA and the DMA, see Johann Laux, Sandra Wachter, and Brent Mittelstadt, ‘Taming the Few: Platform Regulation, Independent Audits, and the Risks of Capture Created by the DMA and DSA’ (2021) 43 Computer Law & Security Review 105613; Martin Eifert, Alex Metzger, Heike Schweitzer, and Gerhard Wagner, ‘Taming the Giants: The DMA/DSA Package’ (2021) 58 Common Market Law Review 987.

4 Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data [2016] OJ L 116 (GDPR).

5 For details on the public enforcement regime under the GDPR, see Thomas Streinz, ‘The Evolution of European Data Law’ in Grainne De Búrca and Paul Craig (eds), The Evolution of EU Law, 3rd ed (Oxford University Press, 2021) 914–15; Herwig CH Hofmann and Lisette Mustert, ‘Data Protection’ in Miroslava Scholten (ed), Research Handbook on the Enforcement of EU Law (Edward Elgar, 2023) 465–70.

6 For the DMA, see Giorgio Monti, ‘Procedures and Institutions in the DMA’, issue paper (Centre on Regulation in Europe, 2022) 12–22. For the AI Act, see Marco Almada and Nicolas Petit, ‘The EU AI Act: Between the Rock of Product Safety and the Hard Place of Fundamental Rights’ (2025) 62 Common Market Law Review 85, 93–94.

7 See Husovec (n 1) 420–28.

8 Article 54 DSA: ‘Recipients of the service shall have the right to seek, in accordance with Union and national law, compensation from providers of intermediary services, in respect of any damage or loss suffered due to an infringement by those providers of their obligations under this Regulation’.

9 See eg Jonas Knetsch, ‘The Compensation of Non-pecuniary Loss in GDPR Infringement Cases’ (2022) 13 Journal of European Tort Law 132; Wolfgang Wurmnest and Merlin Gömann, ‘Comparing Private Enforcement of EU Competition and Data Protection Law’ (2022) 13 Journal of European Tort Law 154; Francesca Episcopo, ‘UI v. Österreichische Post—A First Brick in the Wall for a European Interpretation of Art. 82 GDPR’ (2024) 13 Journal of European Consumer and Market Law 87; Václav Janeček and Cristiana Teixeira Santos, ‘The Autonomous Concept of “Damage” According to the GDPR and Its Unfortunate Implications: Österreichische Post’ (2024) 61 Common Market Law Review 531.

10 Marvin Bartels, ‘Chapter 5: Enforcement’ in Torsten Kraul (ed), New Digital Services Act: A Practitioner’s Guide (CH Beck, 2024); Pieter van Cleynenbreugel, ‘Article 54: Indemnisation’ in Brunessen Bertrand (ed), Règlement DSA 2022/2065 relatif à un marché unique des services numériques commentaire article par article (Bruylant, 2024); Maria Magierska, ‘Artykuł 54: Odszkodowanie’ in Mateusz Grochowski (ed), Akt o usługach cyfrowych. Komentarz (CH Beck, 2024); Ralf Müller-Terpitz, ‘Artikel 54 Entschädigung’ in Ralf Müller-Terpitz and Markus Köhler (eds), Digital Services Act: DSA Gesetz über digitale Dienste (CH Beck, 2024); Benjamin Raue, ‘Article 54: Compensation’ in Franz Hofmann and Benjamin Raue (eds), Digital Services Act Article-by-Article Commentary (Beck/Hart/Nomos, 2025); Wilman et al (n 2) 370–71.

11 In the CJEU case law, see eg Case C-300/21, Österreichische Post, EU:C:2023:370, para 40; Case C-590/22, PS (Incorrect Address), EU:C:2024:536, para 43. For further details on the complementary role of private enforcement in regulatory theory, see Section II.

12 This does not imply that Article 54 DSA exhausts the private enforcement mechanisms available under the DSA. For discussion of private enforcement beyond the action for damages, see Paddy Leerssen, Anna van Duin, and Joris van Hoboken, ‘Private Enforcement of the Digital Services Act (DSA)’ (2026) 34 European Review of Private Law 229.

13 For a declaratory reading, see eg Müller-Terpitz (n 10) Rz 3. Bartels agrees that it does not constitute a separate claim (n 10, 154). Raue observes that ‘the existence of Article 54 changes little in German law’ (n 10, 949). The latter position may be understood in two ways: either that Article 54 merely confirms the availability of an action for damages under national law, or that an effective action for damages is required by Union law independently of Article 54 DSA. The argument advanced here concerns the self-standing legal function of Article 54 DSA and does not deny the latter possibility.

14 For the view that Union law may require effective judicial remedies, including injunctive relief following Muñoz, independently of specific secondary legislation, see Husovec (n 1) 430.

15 Directive (EU) 2020/1828 on representative actions for the protection of the collective interests of consumers [2020] OJ L 409 (RAD).

16 Case C-319/20, Meta Platforms Ireland, EU:C:2022:322.

17 Much of the literature discussed in this section refers to the US context, where private enforcement has been conceptualised under the labels of the ‘litigation state’ (see Sean Farhang, The Litigation State: Public Regulation and Private Lawsuits in the United States (Princeton University Press, 2010)) and ‘adversarial legalism’ (see Robert A Kagan, Adversarial Legalism: The American Way of Law, 2nd ed (Harvard University Press, 2019)). It is embedded in an institutional context that differs from that of the EU, including broader class action mechanisms, contingency fee arrangements as well as differences in the availability and amount of damages awarded. The discussion in this section therefore draws on this literature only insofar as it concerns the general relationship between public and private enforcement.

18 See eg J Maria Glover, ‘The Structural Role of Private Enforcement Mechanism in Public Law’ (2011) 53 William & Mary Law Review 1137, 1158–60; Olha O Cherednychenko, ‘Public and Private Enforcement of European Private Law: Perspectives and Challenges’ (2015) 23 European Review of Private Law 481, 487–88. Compare Recitals 5–6 of Directive 2014/104/EU on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union [2014] OJ L 349 (Damages Directive). In the context of the DSA, see Wilman et al (n 2) 370–71 Rz 3–4.

19 For general arguments in favour of private enforcement, see Gary S Becker and George J Stigler, ‘Law Enforcement, Malfeasance, and Compensation of Enforcers’ (1974) 3 Journal of Legal Studies 1, 13–16. Another analysis applies primarily to contract and tort law rather than criminal law, see William M Landes and Richard A Posner, ‘The Private Enforcement of Law’ (1975) 4 Journal of Legal Studies 1, 30–33. For an overview of the classic arguments, see Mark A Cohen and Paul H Rubin, ‘Private Enforcement of Public Policy’ (1985) 3 Yale Journal on Regulation 167.

20 For practical contexts in which public enforcement is not always feasible, see Steven Shavell, ‘The Optimal Structure of Law Enforcement’ (1993) 36 Journal of Law and Economics 255, 271–72.

21 Glover (n 18) 1176ff. For a summary of the arguments, see Luke P Norris, ‘The Promise and Perils of Private Enforcement’ (2022) 108 Virginia Law Review 1483, 1504–07.

22 María Guadalupe Martínez Alles, ‘Tort Remedies as Meaningful Responses to Wrongdoing’ in Paul B Miller and John Oberdiek (eds), Civil Wrongs and Justice in Private Law (Oxford University Press, 2020) 250–51.

23 Susan Rose-Ackerman, ‘Regulation and the Law of Torts’ (1991) 81 American Economic Review 54, 55; Douglas A Kysar, ‘The Public Life of Private Law: Tort Law as a Risk Regulation Mechanism’ (2018) 9 European Journal of Risk Regulation 48, 61. See also Alles (n 22) 246–47.

24 On deterrence, alongside remedies for infringements of individual rights, see Christian Heinze, Schadensersatz im Unionsprivatrecht: Eine Studie zu Effektivität und Durchsetzung des Europäischen Privatrechts am Beispiel des Haftungsrechts (Mohr Siebeck, 2017) 541–54.

25 Private enforcement can generate negative externalities (litigation costs) as well as positive social benefits; private incentives may be socially excessive or inadequate: see Steven Shavell, ‘The Fundamental Divergence between the Private and the Social Motive to Use the Legal System’ (1997) 26 Journal of Legal Studies 575.

26 Norris (n 21) 1530–34.

27 Stephen Burbank, Sean Farhang, and Herbert Kritzer, ‘Private Enforcement’ (2013) 17 Lewis & Clark Law Review 637, 667–71. For five reasons against substituting tort law for regulatory frameworks, see Rose-Ackerman (n 23) 57–58.

28 Katharina Pistor and Chenggang Xu, ‘Incomplete Law’ (2003) 35 New York University Journal of International Law & Politics 931, 1012.

29 Richard Craswell and John E Calfee, ‘Deterrence and Uncertain Legal Standards’ (1986) 2 Journal of Law, Economics, and Organization 279, 298–99.

30 A term employed by Hans Micklitz in Hans-W Micklitz, ‘Administrative Enforcement of Private Law’ in Roger Brownsword et al (eds), The Foundations of European Private Law (Hart Publishing, 2011) 570. For a similar account on regulatory tort law, see Grigoris Bacharis, Shaping Liability in Private Enforcement Actions: A Framework from Tort and Competition Damages Law in Europe and the United States (European University Institute, 2024) 101ff.

31 For the view that introducing a private right to compensation enhances the overall legitimacy of the DSA framework, see Husovec (n 1) 473. This, however, can also work in the opposite direction: where the right cannot be effectively enforced, it may delegitimise the regulatory framework itself.

32 For further details, see Section IV.B.

33 Particularly in the context of representative actions for damages as discussed in Section VII.

34 For a brief overview of literature, see nn 5 and 9.

35 For an overview, see Lena Hornkohl, ‘Schadensersatzansprüche wegen Verstößen gegen Verhaltensnormen des digitalen Binnenmarktrechts’ (2024) Europäische Zeitschrift für Wirtschaftsrecht 941. For an overview of problems surrounding private enforcement under the DSA/DMA package, see Peter Georg Picht, ‘To Break Up or Regulate Big Tech? Avenues to Constrain Private Power in the DSA/DMA Package’ (2021) Research Paper No 21–25 Max Planck Institute for Innovation and Competition 98; Peter Picht, ‘Private Enforcement for the DSA/DGA/DMA Package’ (Verfassungsblog, 3 September 2021), https://verfassungsblog.de/power-dsa-dma-09/ (accessed 16 July 2026).

36 Raue (n 10) 949 Rz 1, 950 Rz 6.

37 Damages Directive (n 18); Recital 146 of the GDPR. For further details on the private enforcement under the GDPR, see Section VI.

38 European Commission, Proposal for a Regulation of the European Parliament and of the Council on a Single Market for Digital Services (Digital Services Act), {SEC(2020) 432 final}—{SWD(2020) 348 final}—{SWD(2020) 349 final} (Commission Proposal). See also European Commission, Impact Assessment Accompanying the Document Proposal for a Regulation of the European Parliament and of the Council on a Single Market for Digital Services (Digital Services Act), {COM(2020) 825 final}—{SEC(2020) 432 final}—{SWD(2020) 349 final} (Impact Assessment). For more details, see Raue (n 10) 953–54.

39 Ibid, 26. Similar views on the problem of liability have been raised with reference to the Product Liability Directive (ibid, 166).

40 Opinion of the European Economic and Social Committee on the Proposal for a Regulation of the European Parliament and of the Council on a Single Market for Digital Services (Digital Services Act) [COM(2020) 825 final], Interinstitutional File: 2020/0361(COD) Point 4.2.

41 See the debate in the EP on 19 January 2022 (CRE 19/01/2022–14), in particular the speech of MEP Christel Schaldemose, and the debate on 19 January 2022 (CRE 19/01/2022–18), the speech of MEP Urmas Paet.

42 European Parliament, Amendments adopted by the European Parliament on 20 January 2022 on the Proposal for a Regulation of the European Parliament and of the Council on a Single Market For Digital Services (Digital Services Act), C9-0418/2020-2020/0361(COD), 20.01.2022, P9_TA(2022)0014 (EP Proposal).

43 Article 43a of the EP Proposal: ‘Without prejudice to Article 5, recipients of the service shall have the right to seek, in accordance with relevant Union and national law compensation from providers of intermediary services, against any direct damage or loss suffered due to an infringement by providers of intermediary services of obligations established under this Regulation’.

44 Recital 83a of the EP Proposal: ‘Recipients of the service and organisations representing them should be entitled to have access to proportionate and effective remedies’.

45 As referred to in Recital 121 to the DSA: ‘Such compensation should be in accordance with the rules and procedures set out in the applicable national law and without prejudice to other possibilities for redress available under consumer protection rules’.

46 See Section VII.

47 Raue (n 10) 949.

48 Ibid 949, 960–65.

49 Ibid 959–60, 965–66.

50 Ibid 952–53. It remains open whether, from the perspective of Union law, national legal bases (Anspruchsgrundlagen) should matter. Although such distinctions are undoubtedly relevant in national law, they must be assessed against the DSA’s objectives and the practical effectiveness of the right to seek compensation under Article 54 DSA. Imagine a case in which two breaches of the same regulatory duty occur but, under national law, one compensation claim is pursued on a contractual basis, while the other is pursued on an extracontractual basis. Even where the underlying breach concerns the same regulatory duty, differences in national Anspruchsgrundlagen may affect the practical enforceability of the claim under Article 54 DSA. Austrian law provides an illustration: under Article 1298 ABGB, fault is presumed for claims pursued on a contractual basis, whereas no such presumption applies in the case of extracontractual liability. The absence of this presumption may substantially increase the claimant’s evidentiary burden and thereby risk weakening the practical effectiveness of the right to seek compensation under Article 54 DSA, notwithstanding that the same regulatory duty has been infringed. For the view that civil liability is increasingly analysed as instrumental and oriented towards the attainment of legislative objectives, rather than grounded in the internal rationales of national tort systems, see Paula Giliker, ‘The Future of EU Tort Law’ in Paula Giliker (ed), Research Handbook on EU Tort Law (Edward Elgar, 2017), 449–53; Olha O Cherednychenko, ‘The Public and Private Enforcement of EU Digital Space Private Law’ (2025) 33 European Review of Private Law 1073, 1096–98. For further discussion of how Union law may pursue aims that differ from those reflected in national remedial categories (here tort law), see Mark Wesselink, ‘Overview’ in Helmut Koziol and Reiner Schulze, Tort Law of the European Community (Springer, 2008) 345.

51 Ibid 955–57.

52 Ibid 953. For further details, see Section VII.

53 The model of complementarity has been developed by Olha O Cherednychenko, ‘Islands and the Ocean: Three Models of the Relationship between EU Market Regulation and National Private Law’ (2021) 84 Modern Law Review 1294, 1321ff. The account of complementarity advanced here, however, differs in that market regulation is not understood merely as influencing national private law standards, but as providing a legal basis for liability derived directly from Union law.

54 Any comparison with the product liability framework is necessarily limited, given the markedly sparse drafting of Article 54 DSA compared with the more detailed regime established by the Product Liability Directive, see Cherednychenko, ‘Islands and the Ocean’ (n 53) 1322–24.

55 See n 13.

56 For further details on the methods of interpretation in EU law, see Koen Lenaerts and José A Gutiérrez-Fons, ‘To Say What the Law of the EU Is: Methods of Interpretation and the European Court of Justice’ (2013) 20 Columbia Journal of European Law 3, 16–37.

57 Miikka Hiltunen, ‘Social Media Platforms within Internal Market Construction: Patterns of Reproduction in EU Platform Law’ (2022) 23 German Law Journal 1226, 1241; Wilman et al (n 2) 17–18 Rz 12–14.

58 For French tort law as victim-oriented, see Jean-Sébastien Borghetti, ‘The Culture of Tort Law in France’ (2012) 3 Journal of European Tort Law 158, 158.

59 An example is the Product Liability Directive, where domestication of this liability regime occurred at the outset. For further details, see Jonas Knetsch, ‘European Tort Law in Western Europe’ in Giliker (n 50) 348–49. For divergent approaches to the formal conditions of liability based on negligent conduct, see Cees van Dam, European Tort Law, 2nd ed (Oxford University Press, 2014) 136. For the concept of causation as a further illustration of divergences between national liability regimes, see Marta Infantino and Eleni Zervogianni (eds), Causation in European Tort Law (Cambridge University Press, 2017).

60 For further details, see Gerhard Wagner, ‘Prävention und Verhaltenssteuerung durch Privatrecht—Anmaßung oder legitime Aufgabe’ (2006) 206 Archiv für die civilistische Praxis 352. For the governance effects of civil liability in digital regulation, see Dominik Dworniczak, ‘Regulation in the Making: The Governance Effects of Civil Liability in EU Digital Regulation’ (2026) European Journal of Risk Regulation, 1 (First View).

61 Marcus Klamert, ‘What We Talk about When We Talk about Harmonisation’ (2015) 17 Cambridge Yearbook of European Legal Studies 360, 364–65, 371. Beyond the explicit reference to the law of the Member States, this marks another difference between Article 54 DSA and Article 29 of Directive (EU) 2024/1760 on corporate sustainability due diligence [2024] OJ L, 2024/1760. For the ‘immediate effect in the national legal systems’ of the provisions of regulations, see Meta Platform Ireland (n 16), para 58.

62 Lenaerts and Gutiérrez-Fons (n 56) 17.

63 By contrast, earlier accounts located the legal basis (Anspruchsgrundlage) of compensatory remedies in national law, see Norbert Reich, ‘The Interrelation between Rights and Duties in EU Law: Reflections on the State of Liability Law in the Multilevel Governance System of the Union: Is There a Need for a More Coherent Approach in European Private Law?’ (2010) 29 Yearbook of European Law 112, 124.

64 National law typically supplies rules on causation, quantification of damage and limitation periods, provided that such rules comply with the principles of equivalence and effectiveness and do not compromise the practical effectiveness of the right to compensation under Article 54 DSA.

65 Case C-453/99, Courage and Crehan, EU:C:2001:465; Joined Cases C-295/04 to C-298/04, Manfredi, EU:C:2006:461. For more details on the principle of effectiveness and effet utile, see Mateusz Grochowski and Maciej Taborowski, ‘Effectiveness and EU Consumer Law: The Blurriness in Judicial Dialogue’ in Federica Casarosa and Madalina Moraru (eds), The Practice of Judicial Interaction in the Field of Fundamental Rights (Edward Elgar, 2022). For further details on national procedural autonomy, see Daniel Halberstam, ‘Understanding National Remedies and the Principle of National Procedural Autonomy: A Constitutional Approach’ (2021) 23 Cambridge Yearbook of European Legal Studies 128.

66 A similar approach is discussed by Dorota Leczykiewicz, though primarily in the context of directives; see Dorota Leczykiewicz, ‘Compensatory Remedies in EU Law: The Relationship between EU Law and National Law’ in Giliker (n 50) 84–88. In the context of private enforcement under the GDPR (Art 82 GDPR), see Österreichische Post (n 11) paras 52–59.

67 For the view that Article 54 DSA provides an EU-law-based action for damages, see Sarah Legner, ‘How Private Actors Shape the DSA’s Enforcement Architecture’ (EU Law Live, 6 October 2025), https://eulawlive.com/competition-corner/how-private-actors-shape-the-dsas-enforcement-architecture-by-sarah-legner/ (accessed 16 July 2026).

68 Husovec explicitly refers to these two possibilities, see Husovec (n 1) 433.

69 For an example, see Hubert Bekisz and Dominik Dworniczak, ‘Poland ∙ First Empirical Insights on Article 82 GDPR in National Courts’ (2022) 8 European Data Protection Law Review 521.

70 Österreichische Post (n 11).

71 For a detailed case analysis, see Episcopo (n 9) and Janeček and Santos (n 9).

72 On 2 October 2025, the Civil Court of First Instance in Amsterdam (C/13/774,725 / KG ZA 25-687 MK/JD) delivered another judgment against another VLOP, this time Meta Platforms (for the judgment, see www.bitsoffreedom.nl/wp-content/uploads/2025/10/20251002-vonnis-kort-geding.pdf (accessed 16 July 2026)). However, the court did not address Article 54 DSA.

73 LG Berlin II, Urteil vom 13.5.2025–41 O 140/25 eV. For a similar judgment (not yet been published), see Democracy Reporting International, ‘Berlin Court Rules X Must Release Data to DRI for Research on Hungarian Elections’ (17 February 2026), https://democracy-reporting.org/en/office/EU/news/berlin-court-rules-social-media-platform-x-must-release-data-to-dri-for-research-on-hungarian-elections (accessed 16 July 2026).

74 For further details on the case, see Simone Ruf, ‘X verhindert Forschung zu möglicher Wahlbeeinflussung’ (GFF—Gesellschaft für Freiheitsrechte e.V.), https://freiheitsrechte.org/themen/freiheit-im-digitalen/x (accessed 16 July 2026).

75 Regulation (EU) No 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [2012] OJ L 351 (Brussels Ia Regulation).

76 Daniel Holznagel, ‘Berlin Court Rules on Art. 40(12) DSA—with Broader Lessons for Private Enforcement of the DSA’ (CR-online.de Blog, 12 February 2025), www.cr-online.de/blog/2025/02/12/berlin-court-rules-on-art-4012-dsa-with-broader-lessons-for-private-enforcement-of-the-dsa/ (accessed 16 July 2026).

77 See Section III.

78 Harmut Oetker, ‘BGB §249’, Münchener Kommentar zum Bürgerlichen Gesetzbuch (10 Aufl., CH Beck, 2025) Rz 324.

79 For the approach that quantifies damage by reference to a hypothetical or reasonable licence fee in cases where no consequential loss is demonstrated and no actual profit is obtained through the wrongful act, see Kit Barker, ‘“Damages without Loss”: Can Hohfeld Help?’ (2014) 34 Oxford Journal of Legal Studies 631, 656–57.

80 It is true that national law may determine the modalities of compensation; this does, however, mean that where those modalities fail to secure adequate (ie, full) compesation, they must automatically be ‘upgraded’ by Union law (Reich (n 63) 131).

81 For further details, see Holznagel (n 76).

82 This holds true even on a liberal reading, according to which national courts whose decisions are subject to judicial remedy under national law are not required to make a reference under the preliminary ruling procedure, where there is little doubt as to the interpretation of Union law, see Morten Broberg and Niels Fenger, Broberg and Fenger on Preliminary References to the European Court of Justice (Oxford University Press, 2021) 251.

83 A similar approach to jurisdiction has also been adopted by the Amsterdam District Court (C/13/783,613), see https://uitspraken.rechtspraak.nl/details?id=ECLI:NL:RBAMS:2026:3106 (accessed 16 July 2026). In another case concerning national legislation implementing the E-Commerce Directive, the Austrian Supreme Court considered the concept of damage in connection with the right to information under § 13(3) E-Commerce-Gesetz in establishing jurisdiction under Article 7(2) of the Brussels Ia Regulation (OGH, 18 December 2025, 6 Ob 186/25 h).

84 For such an approach in a Polish commentary, see Magierska (n 10).

85 For a synthesis (as of 2024), see Hornkohl (n 35) 943–44. It has been recently confirmed that Article 82 GDPR constitutes substantive law without direct implications for preventive measures in civil proceedings, see Case C-655/23, IP v Quirin Privatbank AG, EU:C:2025:655, para 52. Regarding the availability of injunctive relief under Article 54 DSA, see Raue (n 10) 950 Rz 4.

86 Several of these liability principles reflect broader requirements governing actions for damages under Union law, which, on the one hand, contribute to the full effectiveness (effet utile) of Union law, see Courage and Crehan (n 65), paras 26–27, and Manfredi (n 65), para 60, and, on the other hand, require an infringement of Union law, damage and a causal link between them, Courage and Crehan (n 65), paras 31 and 33. For a detailed account of the requirements governing actions for damages under Articles 268 and 340(2) TFEU, see Koen Lenaerts, Kathleen Gutman, and Janek Tomasz Nowak, EU Procedural Law, 2nd ed (Oxford University Press, 2023), 498–515.

87 Österreichische Post (n 11) paras 32, 36. See also Courage and Crehan (n 65), paras 26–27.

88 Ibid paras 33–34, 37, 42; Case C-667/21, Krankenversicherung Nordrhein, EU:C:2023:1022, para 82; PS (Incorrect Address) (n 11) para 28; Case C-526/24, Brillen Rottler, EU:C:2026:216, para 56.

89 Case C-456/22, Gemeinde Ummendorf, EU:C:2023:988, para 22; Krankenversicherung Nordrhein (n 88) para 99; Case C-741/21, juris GmbH, EU:C:2024:288, paras 39, 42; PS (Incorrect Address) (n 11) para 33.

90 For the concept of damage as an autonomous concept, see Österreichische Post (n 11) paras 43–44; PS (Incorrect Address) (n 11) paras 31–32. Quirin Privatbank (n 85) para 55. For the concept of ‘compensation for the damage suffered’ as an autonomous concept of EU law, see Case C-200/23, Agentsia po vpisvaniyata, EU:C:2024:827, para 139.

91 Österreichische Post (n 11) paras 54, 59.

92 Ibid paras 49–51; Gemeinde Ummendorf (n 89) paras 16, 18.

93 Although the CJEU has emphasised that the determination of the level of financial compensation falls within national law, it has examined such matters in the light of the principles of equivalence and effectiveness. See eg Österreichische Post (n 11) paras 54, 59; Krankenversicherung Nordrhein (n 88) paras 83–84, 101. For symbolic sum, see Joined Cases C-182/22 and C-189/22, Scalable Capital, EU:C:2024:531, para 46. For apologies, see Case C-507/23, Patērētāju tiesību aizsardzības centrs, EU:C:2024:854, para 36–37.

94 Case C-340/21, Natsionalna agentsia za prihodite, EU:C:2023:986, paras 69, 72–74; Krankenversicherung Nordrhein (n 88) paras 94, 103; juris GmbH (n 89) paras 45–54.

95 Krankenversicherung Nordrhein (n 88) para 87; Case C-687/21, MediaMarktSaturn, EU:C:2024:72, para 50; Quirin Privatbank (n 85) paras 82–83.

96 Juris GmbH (n 89) paras 55–65; PS (Incorrect Address) (n 11) para 44.

97 Österreichische Post (n 11).

98 See eg Natsionalna agentsia za prihodite (n 94) paras 80–85; Quirin Privatbank (n 85) paras 59–62. For physicial injury, see Scalable Capital (n 93) para 38. For identity theft, see ibid paras 55–58. The Court did not consider, however, if the wrongdoer should also compensate a loss of profit (lucrum cessans) as in Manfredi (n 65), para 95.

99 Modalities of compensation have, for example, been specified in Articles 3, 12–14, 17 of the Damages Directive. For further details, see Christian Heinze, ‘Der kartelldeliktische Schadensersatzanspruch nach der Richtlinie 2014/104/EU—Baustein oder Fremdkörper im europäischen Haftungsrecht?’ (2020) 28 Zeitschrift für Europäisches Privatrecht 281, 300–04.

100 Although Francovich liability is not directly comparable to Article 54 DSA, it illustrates that even an action for damages deriving directly from Union law, such as the former, may be shaped by national liability traditions. For empirical evidence, see Rónán Condon and Barend Van Leeuwen, ‘Bottom Up or Rock Bottom Harmonization? Francovich State Liability in National Courts’ (2016) 35 Yearbook of European Law 229, 261–62. A similar tendency has been observed in the early national case law on Article 82 GDPR; see Bekisz and Dworniczak (n 69).

101 This combination of Union and national law is explicitly recognised by Raue (n 10) Rz 40.

102 For more specific issues regarding VLOPs and consequential damages, see Husovec (n 1) 433.

103 The recent case Russmedia illustrates that the nature or size of the data controller does not affect the extent of liability under the GDPR, see Case C-492/23, Russmedia, ECLI:EU:C:2025:935.

104 The data subject as a weaker party, see eg Hubert Bekisz and Dominik Dworniczak, ‘Towards a Data-Subject-Friendly Interpretation of Article 82 GDPR’ (Verfassungsblog, 21 October 2022) (accessed 16 July 2026).

105 This aligns with the broader critique of consumer law, according to which small and medium-sized and non-profit organisations fall outside its scope of protection. For further discussion of the so-called categorical protection, see Martijn W Hesselink, ‘European Contract Law: A Matter of Consumer Protection, Citizenship, or Justice?’ (2007) 15 European Review of Private Law 323, 327.

106 An example of the CJEU’s focus on the recitals can be found in Österreichische Post (n 11) para 37.

107 For further argument against the extensive judicial interpretation, in particular in regard to over-constitutionalisation, see Gareth Davies, ‘Does the Court of Justice Own the Treaties? Interpretative Pluralism as a Solution to Over‐constitutionalisation’ (2018) 24 European Law Journal 358, 359, 373–74.

108 For instance, the concept of consumer under the Unfair Terms Directive (93/13/EC) has been interpreted in the light of the recitals of the Consumer Rights Directive (2011/83/EU), see Case C-570/21, YYY, EU:C:2023:456, paras 41–46.

109 This has been suggested by Hornkohl (n 35) 945. Although Article 54 DSA refers to national law, it remains open whether the compensation concept constitutes an autonomous concept of EU law. By analogy, even minimum harmonisation directives may contain autonomous concepts, as seen in the interpretation of ‘main subject matter’ under Article 4(2) UCTD (Case C-143/13, Matei, EU:C:2015:127). For further details, see Emilia Mišćenić, ‘Uniform Interpretation of Article 4(2) of UCT Directive in the Context of Consumer Credit Agreements: Is It Possible?’ (2018) 1 Revue du droit de l’Union européenne 1.

110 Pointing to these two aspects, effective exercise of rights and ‘a coherent and uniform application of EU law throughout the territory of the Union’ with focus on redress for discrimination claims, see Sara Benedi Lahuerta, ‘Enforcing EU Equality Law through Collective Redress: Lagging Behind?’ (2018) 55 Common Market Law Review 783, 807–09, 815.

111 See eg Hans-W Collins, ‘The Hybrid Quality of European Private Law’ in Roger Brownsword et al (eds), The Foundations of European Private Law (Hart Publishing, 2011) 460–61.

112 Tanja Domej and Patrick Honegger-Müntener, ‘Enforcing Consumer Law in Europe and Beyond: Similarities and Differences’ in Beate Gsell and Thomas MJ Möllers (eds), Enforcing Consumer and Capital Markets Law (Intersentia, 2020) 376–404.

113 For the summary of this classic view as 3E: ‘Effectiveness, Enforcement, Efficiency’, see Maria José Azar-Baud, ‘Trends in Funding of Collective Litigation’ in Xandra Kramer et al (eds), Sustaining Access to Justice: New Avenues for Costs and Funding (Hart Publishing, 2025) 60.

114 For the general overview, see Beate Gsell, ‘The New European Directive on Representative Actions for the Protection of the Collective Interests of Consumers—A Huge, but Blurry Step Forward’ (2021) 58 Common Market Law Review 1365.

115 Fernando Gascón Inchausti, ‘A New European Way to Collective Redress? Representative Actions under Directive 2020/1828 of 25 November’ (2021) 18 Zeitschrift für das Privatrecht der Europäischen Union 61, 70–71.

116 Although the RAD does not apply to competition law, collective actions for damages may still be brought on the basis of other legislative frameworks. For a recent example, see Case C-253/23, ASG 2, EU:C:2025:40.

117 Gsell (n 114) 1370.

118 Section 1(2) of the Verbraucherrechtedurchsetzungsgesetz (VDuG). For further details, see Gregor Bachmann, ‘BGB §13’, Münchener Kommentar zum Bürgerlichen Gesetzbuch (10 Aufl., CH Beck 2025) Rz 280.

119 Article 3(b) DSA. Although, for some commentators, it automatically applies to data subjects, see Inchausti (n 115) 66.

120 Not discussed by Kraul (n 10) Rz 23. For more details, see Wilman et al (n 10) 370–71 Rz 3, 5; Agustín Reyna, ‘DMA and DSA Effective Enforcement—Key to Success’ (2024) 12 Journal of Antitrust Enforcement 320, 324; Bartels (n 10) 156 Rz 123–24.

121 See Section III.A.

122 This finds further support in the wording of Recitals 1–2 GDPR.

123 Meta Platform Ireland (n 16) paras 64–69, 72–76.