Digital Competition Law and Data Privacy in the EU – The Overlap and Interplay between GDPR, Article 102 TFEU, and DMA

Abstract: Large digital platforms impact the entire internal market of the EU. In particular, three challenges characterise their relationship with businesses and end-users, “access to data”, “imbalanced bargaining power”, and “degrading data privacy”, where the common denominator is personal data. This thesis investigates to what extent these challenges are regulated in the GDPR, Article 102 TFEU and the DMA, together with the plausible overlap and interplay between the three legal frameworks. The study is thus framed in three regulation specific questions and one comparing and analysing question. The purpose-oriented part of the thesis is divided into three chapters, one for each research question, together with the corresponding fourth research question. The overarching approach is to move from “practical” to “theoretical”, i.e., initiating with case-law by the EU Courts, then viewpoints by relevant EU institutions, and finishing with theories by legal scholars, when investigating each challenge. Due to a relevant and financially strong sector, the material is of both high quality and current. Each legal framework could theoretically be applicable to each challenge, but to various extents and practical vs theoretical depth. The study further concludes that the predominant overlap is between the data portability provisions in the GDPR and the DMA respectively, questioning the “without prejudice” clause of the DMA. Furthermore, the predominant interplay is between the Article 102 TFEU and the GDPR, by using lack of “choices” and data protection principles as benchmarks for determining abuse. Beyond this, the thesis broadly investigates, if the three legal frameworks could theoretically be applied to the same challenge, following the bpost case the CJEU enabled the Commission to apply two legal frameworks side-by-side (competition rules and sector-specific rules), thus raising the question if a third could be possible. Either way, it can be concluded that the three provisions can be applicable to similar situations, but in accordance with EU law, the CJEU has the final say in the interpretation and application of the three legal frameworks, according to Article 19(1) TEU.