Data Protection Considerations in EU Competition Law - A Natural Evolution or Disruptive Development?

Abstract: It goes without saying that the world that we live in is becoming increasingly digitised. People communicate on Facebook, order products on Amazon, and use Google Search to find everything the Internet has to offer. A common denominator of these services is that they are all offered for free. Instead of requiring payment, the business model of such undertakings is to maximise data collection on its users, establish their preferences, and sell advertisement space to other undertakings that benefit from targeted advertising. Data has consequently become an essential component of thriving in the digital era. While the collection of (personal) data is mostly a concern related to data protection laws, many of the digital markets are dominated by extremely large market players. Search engines have Google, online retail has Amazon, consumer communication has Facebook; the list goes on. In turn, certain harmful behaviour conducted by large undertakings is precluded through the application of competition law. The commercialisation of data and personal data has led to the intersection between data protection law and competition law. As such, a question arises whether data protection considerations can be taken into account in competition law. The thesis examines how, and in which ways, data protection considerations can form part of the competitive assessment in EU law. The thesis explains the roles of data and personal data in the digital era and how their processing can both lead to positive and negative effects vis-à-vis consumers. It continues to explore the commonalities and divergences between EU data protection law and EU competition law. Although being separate legal instruments, it is demonstrated that they share a lot of similarities. Having described the legal frameworks, the thesis analyses cases comprising the latest application of competition law treating data protection-related questions. While finding that institutions generally avoid directly applying data protection considerations in competition law, it is shown that some data protection-related concepts have been injected into the competitive assessment. As conclusion, the thesis acknowledges that data protection considerations can form part of the competitive assessment in EU law in different ways. However, it is noted that the interactions between EU data protection law and EU competition law are still largely unexplored. Guidance from the relevant EU institutions is therefore required to bring about much needed legal certainty.