Drawing the Boundaries of EU Competition Law: Interactions with IP, Data Protection and Fair Trial Guarantees

1.    INTRODUCTION

EU Competition Law has always played a fundamental role in the European Union’s constitutional and economic order. Articles 101–109 of the Treaty on the Functioning of the European Union (TFEU) are indispensable tools for the creation of the internal market, being guardians of consumer welfare, market structure and competitive process by prohibiting cartels, abuses of dominance and anticompetitive mergers.^[1]

However, the current landscape is profoundly different from the one in which these provisions were originally conceived: interactions with intellectual property, data protection and fundamental rights are challenging the purely economic nature of competition law. Consequently, the discipline does not operate as a hermetically sealed silo, and its reach and boundaries are not always clear-cut. The main challenge today is to delineate how far EU Competition Law should intervene in other legal spheres without exceeding its intended mandate.

This essay discusses the scope and limits of EU Competition Law at its intersection with neighbouring legal areas, focusing on the abuse of dominant position and the role of the European Commission – the executive body of EU and enforcer of antitrust rules in the Union. The relevant provisions are Article 102 TFEU, which prohibits abuses by undertakings in a dominant position insofar as they may affect trade between Member States, and Article 105 TFEU, which gives the Commission the power to ensure the application of EU competition rules.^[2]

Case law and academic commentaries pave the way to an analysis aimed at highlighting where the boundaries of this framework sit today and how far they can legitimately be extended into other domains of law.

2.    EU COMPETITION LAW INTERACTIONS WITH OTHER SPHERES OF LAW

2.1. EU COMPETITION LAW AND INTELLECTUAL PROPERTY RIGHTS

Intellectual Property Rights (IPRs) grant exclusive temporary property rights over inventions or creative works to incentivise innovation.^[3] However, this exclusivity allows right holders to exclude competitors from the production of certain products or the use of some processes, potentially creating legal monopolies or dominant positions that can conflict with competition law’s aims. Accordingly, EU Competition Law has always been crucial in limiting the exercise of IPRs when it constitutes an abuse of dominance under Article 102 TFEU.^[4] Nonetheless, its role at the competition-IP interface continuously expanded, becoming the default legal tool to limit over-protection of IPRs. But is this development desirable? This section examines how far market protection can justify incursions into the IP space and whether competition law is the adequate instrument to handle innovation issues.^[5]

Early cases such as Volvo^[6] and CICRA,^[7] determined that Article 102 TFEU applies only to ‘certain abusive conducts’ – refusals to license, unfair pricing or termination of production. These judgements opened, in principle, to compulsory licensing under competition law, but the CJEU tried to preserve IPRs’ essence by stressing that this rule would only target conducts that exceed the ‘specific-subject-matter’ of the rights, going beyond what is necessary to reward innovation or creativity.^[8] Yet, this judgment actually transformed IPRs from property rules to liability rules, as rights holders may be forced, in certain situations, to license in return for remuneration rather than exclude competitors.

In Magill,^[9] the ECJ widened this framework, replacing the closed list of ‘certain abusive conducts’ with the ‘exceptional circumstances’ test. In cases of refusals to license, an anticompetitive abuse would be found and compulsory license imposed if (a) the denial prevented the emergence of a new high potential product, (b) there was no justification for it, (c) the conduct excluded all competition on the market.^[10] This perimeter, refined by IMS,^[11]which clarified that the Magill factors were cumulative, was intended to maintain exceptional the competition action, so as not to undermine the substance of IP rights.

Nevertheless, later jurisprudence stretched Magill’s criteria, lowering the thresholds for intervention. In Microsoft^[12]– which involved refusals to supply interoperability information protected by copyrights to other software developers – the General Court broadened the ‘new product’ and the ‘elimination of competition’ requirements. For the former, it was sufficient that the refusal to share interoperability data inhibited technical development, while for the latter the hindrance of competition became a mere risk thereof.

In Huawei^[13] – relating a standard-essential patent (SEP) owner seeking an injunction against an implementer of a technological standard – the CJEU did not treat the case a ‘refusal to license’. It replaced the ‘exceptional circumstances’ test with a rule applicable to every dominant SEP holder, imposing procedural duties on both parties and outlining conditions under which the injunction was in violation of Article 102 TFEU.^[14]

Similarly in Google Shopping^[15]. Google, dominant in search services, also offered a shopping comparison service that, due to its prevalence in the upstream market, was always placed at the top of research result, while demoting rivals’ services. The Court characterised Google’s conduct as a new type of ‘self-preferencing’ abuse, rather than a refusal to deal with competitors. This allowed the Commission to avoid the strict requirements, highlighted in earlier case law, under which licensing/access may be imposed. Google Shopping broke the ties between the type of abuse and the remedy: the CJEU accepted that the competition law’s enforcer could impose a duty to give equal access even when the demands of the legal framework for refusals to deal were not met.^[16]

These cases highlighted how market protection has progressively justified deeper competition law’s incursions into IP grounds. What began as an exceptional intervention has evolved into the ‘quasi-default’ tool in limiting the excesses of intellectual property rights exercise.

Yet, this expansion, while sometimes necessary to prevent market foreclosure, is far from being optimal, since competition law is not sufficient nor designed to address all innovation-related issues. Article 102 TFEU targets only dominant undertakings, leaving unaddressed innovation bottlenecks created by non-dominant though relevant IP holders – such as start-ups controlling key patents. Moreover, the abuse requirement limits antitrust law’s capacity of fixing inefficiencies or structural issues that lack of an abusive behaviour by the right’s proprietor. Finally, the fragmented adjudication of competition law and IP – since EU Courts have limited jurisdiction over national IP validity or scope, and in some systems IP and antitrust issues are brought before different forums – undermines coherence and legal certainty, as parallel proceedings may reach inconsistent outcomes or suffer from timing barriers.^[17]

Thus, the IP-competition border requires restrictions to prevent the latter from becoming a comprehensive substitute for innovation policy, since it is not adequate to do so.

2.2. EU COMPETITION LAW AND DATA PROTECTION

Another challenge lies in defining the perimeter of the EU Competition Law-data protection interface. Digital markets have made personal data a key source of market power and a parameter of non-price competition – competition on factors other than price.^[18] Thus, the separatist view under which these two disciplines are always separate seems to be tearing apart. This shift raises several questions, especially whether a dominant firm’s misuse of personal data or violation of privacy norms can amount to a competition law problem and where the intervention of competition law should come to a halt. This section explores deeply these issues, looking at ground-breaking case-law and doctrinal insights.

Traditionally, EU authorities identified a strict division between the two regimes. In Asnef-Equifax^[19] the ECJ stated that ‘any possible issues relating to the sensitivity of personal data are not a matter for competition law, they may be resolved on the basis of the relevant provisions governing data protection’. Under this view, competition law appears focused only on economic parameters – price, output, consumer welfare – while privacy falls outside its scope.^[20]

However, over time, an integrationist theory emerged, arguing that competition should consider data protection matters, for instance, by adopting a broader consumer welfare standard and incorporating privacy as a qualitative component. Its proponents claimed that – despite not being a currency – personal data has economic value, and it could be considered both as a source of market power, contributing to dominance, and as a normative yardstick in assessing competition.^[21]

This debate culminated in the Meta Platforms Inc and Others v Bundeskartellamt case (2023).^[22] In 2019 the Bundeskartellamt – the German Federal Competition Authority – found that Meta had exploitatively abused its dominant position by forcing users to agree to its terms, allowing it to collect user data also beyond Facebook and combining them with users’ Facebook profiles. The tech giant leveraged its commanding position and the lack of social network alternatives to push users to accept its data sharing conditions, violating GDPR’s requirements^[23] – since the consent was not freely given – and infringing Article 102 TFEU by abusing consumers’ right to data self– determination.^[24]

The Authority developed this brand-new approach, using data protection as the legal basis for competition abuse. Was that legitimate? Could the authorities have used privacy violations as benchmarks to pursue a competition law claim? This question reached the Grand Chamber of the CJEU via a preliminary reference request from the Higher Regional Court in Düsseldorf.^[25] In the judgement, the Court carefully drew the boundaries between EU Competition Law and data protection law.

It found that no provision prohibits a National Competition Authority (NCA) from considering a GDPR violation in an antitrust case, but it immediately outlined the limits of this power’s use. Indeed, an NCA may find - while investigating an abuse of dominance - that a dominant undertaking’s conduct infringes the GDPR, only if ‘that finding is necessary to establish the existence of such an abuse’. Moreover, NCAs must not take over the Data Protection Authorities’ (DPAs) role, fining and fully adjudicating GDPR compliance, and they must refrain from pursuing data protection law’s objective of protecting individuals’ fundamental rights. Evidently, Competition law can consider privacy violations as evidence of anticompetitive conduct, but it must not become the main enforcer of GDPR.

However, uncertainty remains: how can one distinguish – since the judgement does not specify it – between the GDPR breach that amounts to an abuse of dominance and the one that is only a data protection issue? The Meta decision can be read as implying that in cases of exclusionary abuse – where data practices foreclose competitors – the legitimacy of considering GDPR infractions is straightforward, while with exploitative abuses – as in Meta – for a NCA is not sufficient the mere finding of the GDPR breach, but it must also prove that the conduct causes an abuse of market power.^[26]

The Meta ruling shows a balanced approach to the competition-privacy boundaries. Market protection can justify some competition intervention in the other sphere, but it must not become a backdoor for fully enforcing privacy rights – a job reserved to DPAs. This framework guarantees legal certainty, preventing the erosion of the apposite enforcement system provided for by the GDPR.

2.3. EU COMPETITION LAW AND FAIR TRIAL

Since the Treaty of Lisbon, the Charter of Fundamental Rights of the European Union (CFR) has acquired the same value as the Treaties, requiring EU Competition Law’s enforcement to comply with fundamental rights enshrined in it. Among these, the right to an effective judicial protection of Article 47 CFR – ensuring a fair trial within a reasonable time, before an independent and impartial tribunal – is vital to balance market regulation with procedural safeguards.^[27] Indeed, given the European Commission’s broad investigative and decision-making powers, if its authority was unchecked, procedural fairness could be undermined. Hence, this section examines whether certain competition law’s features conflict with trial guarantees and how Article 47 constraints enforcement to preserve justice.

EU Competition Law vests the Commission with a dual role of investigator and initial decision-maker in antitrust cases (Article 105(1) TFEU). Under Regulation 1/2003, it may impose administrative fines up to 10% of a company’s overall annual turnover^[28] which – due to their punitive purpose and severity – assume a quasi-criminal character.^[29] This raises concerns under Article 47’s guarantee of an independent and impartial tribunal. Indeed, despite not being a proper tribunal, the Commission both accuses and adjudicates, and this dual role creates an appearance of partiality and risks to undermine trust in the administrative processes.

However, the CJEU, drawing from the European Court of Human Rights’ (ECtHR) Menarini^[30] doctrine - under which an administrative body may impose quasi-criminal fines as long as its decision can be brought before a tribunal offering the guarantees of Article 6 of the European Charter on Human Rights (ECHR), corresponding to Article 47 CFR - confirmed in Chalkor^[31] and Schindler^[32] that this system is compatible with due process rights, because EU Courts exercise in-depth judicial review of both facts and law and they hold unlimited jurisdiction to reassess fines. Therefore, as long as full judicial scrutiny is available, competition proceedings remain valid under Article 47 CFR.^[33]

In conclusion, the constitutional provision acts as a relevant limit on EU competition law, making sure that the Commission’s pursuit of market integrity does not override the fundamental right to an effective judicial remedy. It demands enforcement to be carried out under the vigilant eye of the judiciary, integrating fair trial values into the competition law framework.

3.    CONCLUSION

Competition law is a cornerstone of EU constitutional and economic system, safeguarding undistorted competition and consumer welfare. However, as the market evolves and this discipline interacts with other regimes, it faces increasing pressure to expand over the economic mandate. This essay shows that while competition has proven versatile – capable of addressing issues for which it was not originally conceived, as anticompetitive uses of IP and data exploitation – it should not be considered as a general substitute for innovation or data protection policies. Ultimately, its enforcement should be subject to comprehensive judicial scrutiny to be compliant with the Charter of Fundamental Rights of the European Union.

^[1] Moritz Lorenz, An Introduction to EU Competition Law (Cambridge University Press 2013) 27-31.

^[2] David Chalmers and others, European Union Law: Text and Materials (5th ed. Cambridge University Press 2024) 942.

^[3] Pat Treacy, EU Competition Law and Intellectual Property Rights (Edward Elgar Publishing 2024) 7.

^[4] Quentin B Schäfer, ‘Reconsidering the Limits of EU Competition Law on the IP-Competition Interface’ (2024) 15(3) Journal of European competition law & practice 2.

^[5] Ibid.

^[6] Case C-238/87 – AB Volvo v Erik Veng (UK) Ltd [1988] ECR I-6211.

^[7] Case C-53/87 - CICRA and Maxicar v. Renault [1988] ECR I-6039.

^[8] Omolade Adeyemi, ‘Refusal to License in the EU: The Approach of the Ecj/Cjeu in Volvo, Magill and Ims Health’ (2019) SSRN Electronic Journal.

^[9] Cases C-241/91 and C-242/91 - RTE v Commission (‘Magill’) [1995] ECR I-743

^[10] Mauro Squitieri ‘Refusals to License Under European Union Competition Law After Microsoft’ (2012) 11(1) Journal of International Business and Law 4.

^[11] Case C-418/01 - IMS Health GmbH & Co. OHG v NDC Health GmbH & Co. KG [2004] ECR I-5039.

^[12] Case T-201/04 - Microsoft Corp. v Commission of the European Communities [2007] ECR II-3601

^[13] Case C-170/13 - Huawei Technologies Co. Ltd v ZTE Corp. and ZTE Deutschland GmbH [2015]

^[14] Quentin B Schäfer, ‘Reconsidering the Limits of EU Competition Law on the IP-Competition Interface’ (2024) 15(3) Journal of European competition law & practice 13-17.

^[15] Case T-612/17 - Google LLC, formerly Google Inc., and Alphabet, Inc. v. European Commission [2021]

^[16] Ariel Ezrachi, EU Competition Law: An Analytical Guide to the Leading Cases (Hart Publishing 2016)

^[17] Quentin B Schäfer, ‘Reconsidering the Limits of EU Competition Law on the IP-Competition Interface’ (2024) 15(3) Journal of European competition law & practice 22-24.

^[18]  EU Data Protection Board ‘Position paper on Interplay between data protection and competition law’ (2025) 5-6.

^[19] Case C-238/05 - Asnef-Equifax, Servicios de Información sobre Solvencia y Crédito, SL v Asociación de Usuarios de Servicios Bancarios (Ausbanc) [2006] ECR I-11125.

^[20] Alessia D’Amico, ‘The boundary between EU competition law and the GDPR after Meta’ (2024) 61(3) Common Market Law Review 787-804.

^[21] Orla Lynskey and Francisco Costa-Cabral, ‘Family Ties: The Intersection between Data Protection and Competition in EU Law’ (2017) 54 Common Market Law Review.

^[22] Case C-252/21 - Meta Platforms Inc and Others v Bundeskartellamt [2023].

^[23] Regulation (EU) 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data and repealing Directive 95/46/EC (General Data Protection Regulation), Article 4.

^[24] Wolfgang Kerber and Karsten K Zolna, ‘The German Facebook case: the law and economics of the relationship between competition and data protection law’ (2022) 54(2)  European Journal of Law and Economics 217-250.

^[25] Alessia D’Amico, 'The boundary between EU competition law and the GDPR after Meta (2024) 61(3) Common Market Law Review 787-804.

^[26] Ibid.

^[27] Giulia Gentile, ‘Two Two Strings to One Bow? Article 47 of the EU Charter of Fundamental Rights in the EU Competition Case Law: Between Procedural and Substantive Fairness’ (2020) Market and Competition Law Review’ Volume IV(2).

^[28] Commission, ‘Fines for breaking EU Competition Law’ (2011).

^[29] Alfonso Lamadrid De Pablo, ‘The Role of the EU Courts in Competition Cases: A View from the Bar’ (2022).

^[30] Menarini Diagnostics S.r.l. v. Italy (2011)

^[31] Case C-386/10 P - Chalkor AE Epexergasias Metallon v European Commission [2011].

^[32] Case C-501/11 P Schindler Holding Ltd and Others v European Commission [2013].

^[33] Andriani Kalintiri, ‘Article 47 of the EU Charter of Fundamental Rights in EU Competition Enforcement: A Quantitative and Qualitative Assessment (2023) REALaw.blog <https://realaw.blog/?p=2111>