Can Antitrust Authorities Assess Personal Data Breaches Within Their Investigations?

Can Antitrust Authorities Assess Personal Data Breaches Within Their Investigations?

November 30, 2022

According to a non-binding opinion delivered on September 20, 2022, by Athanasios Rantos, influential adviser to the European Court of Justice, antitrust authorities may also assess infringement of personal data protection rules during their investigations.

Connection between protection of competition and personal data

Namely, according to the subject opinion, although so-called antimonopoly authorities do not have a direct jurisdiction over the personal data protection issues, they are allowed to, within the enforcement of their authorisations, assess the compliance of market participants with regulations governing the respective matter (primarily GDPR), considering that the use of personal data of customers/users can lead to strengthening a dominant position on the market.

This opinion was delivered with reference to the measure imposed by German antitrust authority to Facebook platform owned by company Meta, which implies prohibition of personal data processing under the terms and conditions of the said company, considering that they are not in line with the GDPR and which the stated authority found to be an abuse of dominant position of this company in the German market.

After company Meta filed a complaint against the decision imposing this measure, the case was addressed to the European Court of Justice, whose decision is currently pending.

Abuse of dominant position in domestic legislation

The Law on the Protection of Competition (Official Gazette of no. 51/2009 and 95/2013) (“the Law“) stipulates that a dominant position is held by a market participant who, due to its market strength, may operate in the relevant market to a large extent independently in relation to actual or potential competitors, customers, suppliers or consumers. The market strength of such participant is determined in relation to the relevant economic and other indicators, in particular those indicated in Article 15, paragraph 2 of the Law.

In relation thereto, the Law prescribes the prohibition of abuse of dominant market position, which in particular involves:

  • direct or indirect imposing of unjust purchase or sale price, or of other unfair business conditions;
  • limiting the production, market or technical development;
  • applying dissimilar conditions to equivalent transactions with other trading partners, thereby placing them at a competitive disadvantage;
  • conditioning the contract with the other party accepting additional obligations, which by its nature or commercial practice have no connection with the subject of the contract.

The use of personal data done in contravention to the Law on Personal Data Protection (Off. Gazette of RS no. 87/2018) may also create unjustified competitive advantage for a market participant in the Republic of Serbia, hence it remains to be seen whether the competent authority of the Republic of Serbia (Commission for the Protection of Competition) will extend its practice in this domain.

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