Position on the Digital Fitness Check: A Call for Coherent, Innovation‑Friendly EU Digital Regulation

As the European Commission undertakes its Digital Fitness Check, FEDMA has released a comprehensive position paper highlighting how the EU can modernise its digital rulebook to support innovation, legal certainty, and competitiveness - while maintaining strong protections for individuals. Our message is clear: Europe does not need more rules; it needs better, more coherent ones.

A Unique Opportunity to Re‑balance Europe’s Digital Framework

Europe’s data economy continues to lag behind other global regions, held back by fragmented national implementation, overlapping obligations, and complex compliance requirements. The Digital Fitness Check offers a crucial opportunity to address these structural issues and drive a more harmonised, innovation‑enabling regulatory environment.

The Draghi report published in September 2024 underscored this urgent need: cross‑border data flows remain sub‑optimal, SMEs face disproportionate burdens, and the current rulebook too often rewards incumbents over innovators. With this in mind, FEDMA fully supports the European Commission’s goal of reviewing the cumulative impact of digital legislation and ensuring the EU’s framework remains fit for purpose.

Key Recommendations

1. Adopt proportionate, risk‑based rules

Current consent requirements—particularly the dual regime stemming from the GDPR and ePrivacy Directive—create unnecessary burdens, ressources and fuel cookie fatigue without meaningful privacy gains. FEDMA recommends:

• Repealing Article 5(3) of the ePrivacy Directive
• Aligning consent rules under a single, GDPR‑based, tech‑neutral approach
• Exempting from the consent requirement low‑risk, non‑intrusive activities such as ad‑measurement, fraud‑prevention or frequency capping

2. Ensure one activity is regulated by one rule

Businesses increasingly face parallel, overlapping obligations across GDPR, ePrivacy, DMA, DSA, UCPD, EECC, and the AI Act. For example:

• AI‑driven profiling has two different compliance logics under the GDPR and AI Act
• The Digital Fairness Act risks duplicating rules already in place

A coherent approach is essential to reduce uncertainty, increase compliance, and maintain high consumer standards.

3. Improve legal certainty through streamlined definitions

Key concepts—such as “data as remuneration,” “personal data,” or anonymity—are interpreted differently across EU instruments. These inconsistencies disproportionately burden SMEs and hinder cross‑border operations. FEDMA calls for:

• Codifying the SRB ruling on anonymisation
• Harmonising definitions across the GDPR, Data Act, DCD and EECC

4. Promote innovation and responsible growth

Current enforcement practices often favour sanctioning over incentivising responsible behaviour. To support ethical innovation:

• Obligations should scale with risk, not company size
• Regulators should adopt practical, consistent, and forward‑looking approaches
• Use of privacy‑enhancing technologies (PETs) should be recognised, encouraged, and integrated into guidance

5. Reduce fixed compliance costs and create a level playing field

SMEs face the highest relative burden due to fragmented rules, inconsistent data access standards (e.g. DMA Article 6(10)), and contractual obligations pushed down by larger partners. FEDMA recommends:

• EU‑level templates and interoperable systems
• Standardised data formats and minimum technical requirements
• Practical recognition of PETs in supervisory assessments

Why This Matters for Europe

Fragmentation, legal uncertainty, and cumulative compliance burdens threaten Europe’s digital competitiveness. They slow product deployment, distort markets in favour of incumbents, and discourage innovation—especially among SMEs and start‑ups.

By embracing a more coherent, future‑proof, and risk‑based regulatory framework, the EU can:

• Unlock cross‑border economic potential
• Abolish unnecessary compliance burdens 
• Support responsible use of data and AI
• Empower SMEs and new entrants
• Strengthen consumer protection in a meaningful, effective way

FEDMA’s Conclusion

The Digital Fitness Check is a pivotal moment. Europe does not lack regulation—it lacks coherence, proportionality, and legal clarity. FEDMA stands ready to support the Commission in building a digital regulatory framework that protects citizens while empowering Europe’s businesses to innovate, compete, and thrive.