The Preliminary Opinion of the European Data Protection Supervisor and the Discretion of the European Commission in Enforcing Competition Law
| Author | Francisco Costa-Cabral |
| Published date | 01 June 2016 |
| Date | 01 June 2016 |
| DOI | http://doi.org/10.1177/1023263X1602300307 |
| Subject Matter | Article |
23 MJ 3 (2016) 495
THE PRELIMINARY OPINION OF
THE EUROPEAN DATA PROTECTION
SUPERVISOR AND THE DISCRETION
OF THE EUROPEAN COMMISSION IN
ENFORCING COMPETITION LAW
F C-C*
ABSTRACT
e Preliminary Opinion of the European Data Protection Supervisor (EDPS) calls for
data protection rights to be integrated in the enforcement of competition law in the EU.
e EDPS proposes that the Commi ssion should use its discretion to broaden the notion of
consumer welfare to include those rights and apply competition rules based on consumer
harm. Neverthele ss, even though the Commission can pr ioritise consumer welfare, it cannot
re-interpret this notion nor rely on consumer harm beyond limited situations. e EDPS
nonetheless also proposes to safeg uard competition on privacy (or data conditions) which,
although not completely overlapping with data protection rights, allows the Commission
to use its discretion to address m any of the EDPS’ concerns. Notably, the Commission can
prioritise exploitation in dig ital markets and shape them through competition remedies. It
is still unclear whether the Commi ssion will do so, but the German Bundeskartell amt has
recently announced an investigation along these lines.
Keywords: competition law; consumer welfare; data protection law; discretion;
enforcement priorities; privacy
§1. INTRODUCTION
In early 2014 the European Data Protection Supervisor (EDPS) issued a Preliminary
Opinion on the interplay between data protection and competition law in the digital
* Assistant Profe ssor at the China-EU School of Law (CESL), Chin a University of Political Science a nd
Law, Beijing, China.
Francisco Co sta-Cabral
496 23 MJ 3 (2016)
economy (Preliminary Opinion).1 is Preliminary Opinion investigated ‘free’ online
services2 and called for a closer dialogue between regulators in order to foster services
that enhance privacy.3 e Preliminary Opinion has so far received little academic
attention.4 However, behind the seemingly modest call for regulatory cooperation is a
normative proposal which the EDPS believes w ill have ‘far-reaching implications’.5 e
EDPS proposes to incorporate data protection law in t he enforcement of competition law,
connecting the provisions of these two elds of law and changing the landscape of how
they are applied. is article assesses this proposal in light of the existing substantive
and procedural framework of competition law, with speci c reference to the discretion
available to the Europe an Commission (Commission) when enforcing competition ru les.
e Preliminary Opinion must be understood in the context of the current
application of data protection law. Both the Commission and the Court of Justice of
the European Union (CJEU) have con rmed that data protection law is not excluded by
the enforcement of competition law.6 erefore, the EDPS does not set out to address
a normative con ict, but a perceived de ciency in the way data protection law works.
He y nancial sanctions can be imposed for the infringement of competition rules,7
while the lack of similar sanctions has been indicated as a reason for non-compliance
with data protection law.8 is concern might wane a er the recent approval of the new
Data Protection Regulation,9 which provides for sanctions comparable to competition
law.10
1 Prelimina ry Opinion of the Europea n Data Protection Supervis or, Privacy and competitiveness in the
age of big data: e interplay bet ween data protection, comp etition law and consumer prot ection in the
Digital Economy, 26Ma rch 2014, EDPS/2014/06.
2 e EDPS argues that p ersonal data is in rea lity the ‘currency ’ which pays for ‘free’ on line services . See
EDPS/2014/06, p.10.
3 EDPS/2014/06, p.2.
4 See however F. Costa-C abral and O. Lynske y, ‘ e Int ern al a nd E xte rna l Co nst ra ints of D ata P rot ect ion
on Competition law i n the EU’, LSE Legal Studi es Working Paper 25 (2015), http://papers.ssrn.com/sol3/
papers.cfm?abstra ct_id=2703655, p.3; L. Kimmel and J. Ke stenbaun, ‘What’s Up with WhatsApp? A
Transatlant ic View on Privacy and Merge r Enforcement in Digita l Markets’, 29 Antitrust (2014), http://
awards.concur rences.com/IMG/pdf/fa ll14-kimmel_c _.pdf, p.50.
5 EDPS/2014/06, p.37.
6 Case C-238/05 Asnef-Equifax, EU:C:2006:734, para. 63; Ca se COMP/M.4731 Google/DoubleClick, para .
368.
7 Fines of up to 10% of total turnover in the preceding year. See Counci l Regulation 1/2003/EC of
16December 2002 on t he implementation of the rules on c ompetition laid down in Ar ticles81 and 82
of the Treaty, [2003] OJ L 1/1, Article23.
8 It was therefore sugges ted that the coherence of EU law required si milar sanctions. Se e D. Kloza and
A. Moscibroda, ‘Ma king the ca se for enhanced enforcement cooperation bet ween data protection
authorities: in sights from competition law ’, 4 International Data Privac y Law (2014), p.120–138.
9 Regulation 2016/679/EU of the European Parliament and of the Council of 27April 2016 on the
protection of natu ral persons wit h regard to the processi ng of personal data a nd on the free movement
of such data, and repe aling Direc tive 95/46/EC (General Data Prote ction Regulat ion), [2016] OJ L 119/1.
10 Notably, nes of up to €20 mill ion or 4% of global annua l turnover. See Regulation 2016/679/EU,
Article83(5) of Regula tion 2016/679/EU.
To continue reading
Request your trial