Can Data Protection Friendly Conduct Constitute an Abuse of Dominance under Art. 102 TFEU?

in: Maria Ioannidou and Despoina Mantzari (eds.), Research Handbook on Competition Law and Data Privacy, Edward Elgar Publishing (2024)

Max Planck Institute for Innovation & Competition Research Paper No. 23-15

34 Pages Posted: 25 Jul 2023

See all articles by Klaus Wiedemann

Klaus Wiedemann

Max Planck Law Network - Max Planck Institute for Innovation and Competition

Date Written: July 20, 2023

Abstract

This chapter analyses whether data protection friendly conduct can infringe Art. 102 TFEU. Despite their differences, both legal regimes share at least three objectives, inter alia protection of competition. This allows for a holistic approach, taking into account competition policy and data protection considerations. The paper argues that the key question is which economic effects a specific conduct has. One must differentiate three scenarios accordingly. The first scenario is that data protection friendly conduct has pro-competitive (or neutral) effects. In such cases, an abuse of dominance is precluded. The second is that conduct is strictly mandated by data protection law. To the extent that a company has no choice but to follow the data protection regulation it cannot be blamed for anti-competitive effects of this conduct. The third scenario is that a market-dominant company invokes data protection as a justification for anti-competitive conduct. Here, a careful proportionality test is necessary.

Keywords: GDPR, Competition Law, Abuse of Dominance, Data Protection Law as a Justification, Common Objectives of Data Protection and Competition Law

Suggested Citation

Wiedemann, Klaus, Can Data Protection Friendly Conduct Constitute an Abuse of Dominance under Art. 102 TFEU? (July 20, 2023). in: Maria Ioannidou and Despoina Mantzari (eds.), Research Handbook on Competition Law and Data Privacy, Edward Elgar Publishing (2024), Max Planck Institute for Innovation & Competition Research Paper No. 23-15, Available at SSRN: https://ssrn.com/abstract=4520608

Klaus Wiedemann (Contact Author)

Max Planck Law Network - Max Planck Institute for Innovation and Competition ( email )

Marstallplatz 1
Munich, Bayern 80539
Germany

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