Can data protection friendly conduct constitute an abuse of dominance under Art 102 TFEU?

Klaus Wiedemann

Chapter 9 in Research Handbook on Data, Privacy and Competition Law, 2025, pp 208-234 from Edward Elgar Publishing

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, the protection of competition. This allows for a holistic approach, taking into account competition policy and data protection considerations. The chapter 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 the 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 (search for similar items in EconPapers)
Date: 2025
ISBN: 9781802202328
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