The Preliminary Opinion of the European Data Protection Supervisor and the Discretion of the European Commission in Enforcing Competition Law

Abstract

The 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. The EDPS proposes that the Commission should use its discretion to broaden the notion of consumer welfare to include those rights and apply competition rules based on consumer harm. Nevertheless, even though the Commission can prioritise consumer welfare, it cannot re-interpret this notion nor rely on consumer harm beyond limited situations. The EDPS nonetheless also proposes to safeguard competition on privacy (or data conditions) which, although not completely overlapping with data protection rights, allows the Commission to use its discretion to address many of the EDPS' concerns. Notably, the Commission can prioritise exploitation in digital markets and shape them through competition remedies. It is still unclear whether the Commission will do so, but the German Bundeskartellamt has recently announced an investigation along these lines.