Fairness and Enforcement: Bridging Competition, Data Protection and Consumer Law

Abstract

• Since the notion of fairness underpins the regimes of competition, data protection and consumer law, it can act as a connecting factor to align substantive protections and enforcement mechanisms in the three fields. • While most attention has so far been devoted to how vigorous competition enforcement can render data protection rules more effective, the complementarity between the regimes also works the other way around. • In particular, substantive data protection or consumer law principles can be integrated into competition analysis so as to strengthen the ability of competition authorities to tackle new forms of commercial conduct. • At the same time, the competition concepts of market definition and market power can help to interpret the scale of obligations that data controllers and processors have to comply with under data protection law in line with the risk-based approach of the General Data Protection Regulation. • Tensions occur where competition enforcement favours sharing or merging of datasets for economic efficiency reasons against the spirit of the data protection rules, but there is also room for synergies by involving data protection or consumer authorities in merger investigations and by considering data protection or consumer interests more proactively in the design of merger remedies.

Keywords: Abuse of dominance, data portability, exploitation, merger review, refusal to deal, unfair conditions