Competition, privacy, and justifications: Invoking privacy to justify abusive conduct under Article 102 TFEU

Abstract

This article aims to delineate the extent to which potentially anticompetitive behaviour that simultaneously improve user privacy are cognizable as efficiencies or objective justifications within the context of unilateral conduct cases in European competition law. After mapping the existing literature, it moves on to discuss whether the decisional guidance of the European Commission, as well as the case-law of the Union Courts, allow the invocation of privacy as proper grounds to mount a defense against abusive prac- tices. In order to concretise the theoretical discussions, the article focuses on two recent and highly relevant developments: Apple’s App-Tracking Transparency initiative, and Google’s unveiling of the Privacy Sandbox. It finds that the state of the law pertaining to the second stage of an abuse case is underdeveloped and needs clarification. Nevertheless, considering the recent developments surrounding European competition law in general, and the digital transformation in particular, both efficiencies and objective justifications are likely to find room for application in the digital economy. On the one hand, efficiencies must be evaluated within the context of substantive symmetry, legal coherence, and economic considerations in a manner that caters to consumer choice. On the other hand, one must approach objective justifications with nuance, lest they give rise to unintended consequences resulting from recent judicial and legislative developments. Overall, it is apparent that the case-law provides valuable insights as to the im- plementation of efficiency arguments and objective justifications in a privacy context. However, the concepts are nonetheless in need of further analysis, in the absence of which their successful invocation re- mains rather unlikely. In that regard, the article concludes by highlighting points of potential contention in the future.