Proposed EU legislation

From both a competition, consumer and privacy law perspective there is a dilemma in relation to how people gather and access data. There has also been increased collaboration between competition and data privacy, both in respect of law and regulators. As such, issues are increasingly being seen relating to how to address the intersection of these two areas, both as external legal advisers and commercial organisations dealing with those overlapping frameworks.


Traditionally, businesses competed on price and quality of goods/service only. However, data has become an important parameter of competition. Personal data is often processed in exchange for goods or services that are free or do not reflect the value of the data; data generates revenue; data is a unique asset and may be hard to replicate; and data enables customised advertising, marketing, pricing and decision-making.

Previously, regulators had not considered competition and data to be natural neighbours. However, this has changed as regulators have become increasingly aware of the fact that data generated can be just as valuable as the product/service itself.

Data can be a source of market power and have limiting effects on competition – for example, by:

  • allowing price discrimination (eg, vertically integrated platforms such as marketplaces can adjust products and pricing more efficiently);
  • facilitating price collusion through pricing algorithms;
  • establishing barriers to entry; and
  • cementing a substantial position that a company already has in the market.

Regulators around the world are considering how to address these issues in digital markets and are encouraging the legislature to take action and adjust the law in a way that equips regulators with the toolbox needed to deal with these issues.

Proposed EU legislation

The European Union has proposed a Digital Markets Act (DMA), which will be very similar to the German Acts Against Restraints on Competition and would provide the European Commission with the means to intervene in similar cases, with the possibility of imposing fines/remedies and, in worse cases, to even break up companies. The DMA is designed to tackle the dominance of large, systematic online platforms that are considered to be "gatekeepers".

An online platform will be considered to be a "gatekeeper" if it has:

  • a strong economic position, is active in multiple EU countries and has a significant impact on the internal market;
  • a strong intermediation position (ie, it is able to link a large user base to a large number of businesses); and
  • an entrenched and durable position in the market.

If an online platform fulfils the criteria, a number of obligations will be imposed on it relating to its daily operations. Examples of these include:

  • Gatekeepers will have to allow third parties to inter-operate with their own services in certain situations.
  • Gatekeepers will not be able to prevent users from uninstalling preinstalled software and/or apps.

There will also be consequences for non-compliance, including potential fines of up to 10% of the online platform's annual worldwide turnover and periodic penalty payments. The DMA also contains a provision for the imposition of additional remedies following systematic infringements, including non-financial remedies as a last resort.

For information on similar legislation in Germany and the United Kingdom, as well as broader considerations around the interplay between data and competition law in the tech, telecoms and media sector, see "The interplay between Data and Competition Law in the TMT sector".

For further information on this topic please contact Philip James, Annabel Borg, Ros Kellaway or Martin Bechtold at Eversheds Sutherland by telephone (+44 20 7919 4500) or email ([email protected], [email protected], [email protected] or [email protected]). The Eversheds Sutherland website can be accessed at