Can Data Protection Friendly Conduct Constitute an Abuse of Dominance under Art. 102 TFEU? (Max Planck Institute for Innovation & Competition Research Paper, No. 23-15), 2023, 34
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.
