European Union: No Such Thing As A Free Search: Antitrust And The Pursuit Of Privacy Goals


What is true of "free" lunches is true also of "free" search: there has to be a catch. By now it has dawned on most of us, as private individuals, how it is we are paying: not in cash, but in information about ourselves. The new dawn for the antitrust community needs to be the articulation of the consequences for antitrust analysis of this tectonic shift in business models.

The generational change in the leadership of the European Commission's antitrust work has coincided with a sudden spurt of attention to this topic—although it is perhaps no coincidence. In her confirmation hearing before the European Commission, Margrethe Vestager described personal data as "the new currency of the internet."1 In this and other remarks she took up the themes launched into public debate by the European Data Protection Supervisor ("EDPS") in a discussion paper of March 2014 entitled Privacy and Competitiveness in the Age of Big Data: The interplay between data protection, competition law and consumer protection in the Digital Economy.2

The echo at the time from DG Competition was muted, but a conference seeking to breathe new life into the EDPS' unheard plea for debate in the antitrust community was held in February this year.3 The keynote address was by Giovanni Buttarelli,4 a privacy regulator speaking to an audience drawn primarily from the antitrust circuit. My remarks on the day5 sought to frame privacy and Big Data issues in the vernacular of antitrust. The growing interest in the topic is reflected in a number of conferences;6 and for example, in a consultation on the "The commercial use of consumer data" launched by the U.K.'s Competition and Markets Authority in January 2015.7

The information collated by businesses about their customers evidently has an economic value justifying the cost of providing the service. The economics and business strategies around such datasets are not the focus of this contribution to CPI's colloquium. Instead the high-level conclusion, easily and quickly drawn, is that antitrust needs to evaluate the role and significance of datasets when they arise in the factual matrix of any assessment—be it dominance, restrictive practices, or merger review. Antitrust is not somehow set aside by the fact that a Big Dataset comprises information about individuals that may also be subject to privacy or data protection requirements.

Such an overlap in applicable rules is of course nothing remarkable in itself (consider LIBOR, where malpractice is the subject of both antitrust and financial services regulation8). But the question may fairly be posed as to the co-existence and interaction of these regimes.


This issue has not been squarely presented in any decision of the EU Courts in Luxembourg, nor in the practice of the European Commission. The closest that the EU jurisprudence comes is a brief assertion in the Asnef9ruling of the Court of Justice. This was a case referred from the Spanish courts concerning a credit-worthiness register maintained among banks. The issue arising was one of information exchange among competitors—the information in question including personal data.

In framing the discussion the Court remarked that the "sensitivity of personal data" was not "as such" a matter for the antitrust laws. More fully it said: "...any possible issues relating to the sensitivity of personal data are not, as such, a matter for competition law, they may be resolved on the basis of the relevant provisions governing data protection."10 The observation was presented without greater discussion. Nor is the Advocate General's similar remark more expansive.11 What then is the import and meaning of this statement?

It is hardly a blanket assertion that privacy is irrelevant to antitrust, or that antitrust must not address facts to which privacy laws may also be relevant. Rather, it indicates that antitrust rules should be applied in pursuit of antitrust goals. And indeed that is what the Court did in the case before it: apply the antitrust rules to a set of facts to which privacy disciplines had a parallel application.

The "as such" language, far from closing the door to the exercise of usual antitrust disciplines, in fact opens it. And the European Commission has passed through this open door, examining the economic relevance of control of large volumes of personal information.12 It does so regardless of whether the individual-specific information in a dataset may also be governed by rules on privacy and the processing of personal data.

The relevance of antitrust goes beyond the obvious economic significance of Big Data (and of the sensitive personal information it comprises). It is not the goal of this contribution to multiply examples, but suffice it to note, for instance, that some service providers actively tout superior privacy characteristics as a quality differentiator.13 Or note the commercial interests ranged against each other in the elaboration of a "Do Not Track" standard for internet searching.14 It is a given that these matters must be debated in antitrust terms.


It is, rather, the purpose of this contribution to fasten hard on the question whether (and how far) privacy considerations can be given weight within an antitrust assessment. That was not the topic before the Court in Asnef, where the comments were in any event (as English and U.S. lawyers might put it) obiter, i.e. an observation in passing which was not necessary for purposes of the immediate ruling.

Framing this very specific question invites echoes of older debates as to the application of competition policy to promote environmental or cultural objectives.15 Citizens have an interest in clean air, but antitrust has never set itself up as a wholesale proxy for environmental policy. But it can give weight to environmental goals. So, for example, the Commission used its then power of exemption16 to approve an otherwise restrictive agreement because it gave "direct practical effect to environmental objectives" defined in the directive on packaging waste.17 Similarly it exempted an agreement among appliance manufacturers to cease production of energy-inefficient machines identified by a directive.18 In adopting this approach the Commission was giving due weight to the Treaty objective specifying the integration of environmental protection requirements into EU policies and actions.19

Similarly the Treaty calls for cultural aspects to be taken "into account in its action under other provisions of the Treaties."20 DG Competition guidance on exemption under Art 101(3) recognizes that "goals pursued by other treaty provisions can be taken into account...".21

The examples cited above all concerned exemption criteria under Art 101(3), but a further example of cross-pollination, under Art 101(1), is provided by the Court of Justice in its Allianz Hungaria 22 ruling. Here the Court identified a restriction by object, drawing strength from an infringement of sectoral insurance rules. Domestic law required car dealers acting as insurance brokers to be independent from insurance companies, and to act in the best interests of policyholders. Arrangements (relating to the rate of payment for repair work to be done by the dealers) were, however, in place by which dealers were given conflicting economic incentives. The Court put weight on the breach of the insurance regulation in identifying a restriction of competition by object.


How then can antitrust align with and facilitate privacy goals? The superior norm is provided by the Charter of Fundamental Rights, which recognizes the protection of personal data as a specific right.23 This right protects not only against interference by the state, but against any processing that does not meet minimum safeguards, i.e. processing "for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law."24 In pursuit of this superior hierarchy requirement, and aligning with specific directives adopted to give effect to it, there is obvious scope for an application of the antitrust rules in a duly sensitive manner.

The EDPS has suggested, for example, that repeated breach of privacy rules may be an indication of abuse of a dominant position.25 In this he was perhaps following a lead given by Commissioner Almunia who, as long ago as 2012, recognized that a "single dominant company could of course think to infringe privacy laws to gain an advantage over its competitors."26

The ability to retain customers despite serial disregard of their privacy interests might well be taken, first, as a confirmation of dominance, i.e. the ability to act without the need to be concerned about the reaction of competitors. And, secondly, the conduct could be thought of as exploitative abuse. In an old-economy mindset one would instinctively think of exploitation as extracting an excessive price.27 But where the payment for the services received is not in cash but in personal data, the exploitation might perfectly well be found in the excessive harvesting of such data. Such harvesting might be deemed exploitative where there is breach of legal privacy standards: the parallel to Allianz Hungaria28is a simple one. Data protection rules require unambiguous consent to the processing of personal data, and this principle is implemented in data protection rules, themselves the subject of reform and debate as to their adequacy. It is though plainly the reality that our data is being collated into datasets and used in ways beyond our knowledge or expectation: how many of us have ever consciously consented to receive targeted online advertising? Antitrust enforcement (pursued with a sensitivity to individuals' privacy interests) need not be aligned only on the breach of specific data protection rules. It can also be inspired directly from the higher Charter principle of minimum safeguards.

It will be argued against this that antitrust should not extend so far into another policy area; and doubtless more effective privacy regulation would reduce the reason for antitrust disciplines to be brought to bear. But this would hardly be the first occasion when EU antitrust enforcement has come to the aid of related policy areas, particularly where legislative reform has failed to advance. For a current example, consider the use of state aid disciplines to unlock the gridlock around unfair tax competition by EU Member States.29 Similarly an activist antitrust enforcement policy served to secure passage of delayed legislation for the liberalization of the EU energy market.30 The pattern is an old one: as long ago as 1988 the competition rules were used to launch the process of telecoms liberalization.31

Alternatively, simply mining the text of Art 102 for possible application to "free" services, the Article refers to the imposition of "unfair trading conditions."32 Users have de facto no choice but to sign up to the terms and conditions of online services, in order to be able to progress to the next screen. And then they may have no practical choice but to accept changes to terms and conditions, if they want to continue using a service in which they have invested their data. Network effects may also play, to keep a user within the ecosystem populated by other users. Degradation to original privacy terms will not provoke users to switch to another provider if there is no effective alternative.

Default settings (rarely altered in practice, no doubt) might desirably specify a high level of privacy protection, but a dominant company—or one that achieves dominance and then degrades its privacy policies—might more readily set defaults to the other extreme. The fairness of "trading conditions"—here the provision of the online service in return for extensive (and often unwitting) waiver of privacy rights—is explicitly a criterion within Art 102.

Companies compete to get consumers to give up their data. All companies in this line of business must have privacy terms, regardless of whether they choose to promote their policy as a quality differentiator. But dominant firms can afford to be more casual about users' privacy than others. There is no reason for antitrust regulators to treat this as beyond their reach.


Privacy and Big Data present new permutations, but familiar antitrust disciplines can be applied to an economy where personal data rather than cash is the currency of payment. There is innovative scholarship in the area, focusing on the phenomenon of "free"33 and the dimension of quality34 as opposed to price. Antitrust lawyers, economists and regulators should avoid fixation on price as their key yardstick. It is not apt to measure what needs measuring in relation to "free" business models.

Cash is not king in these markets. Of course finance-driven markets are never far away: the personal information with which we pay for "free" services is monetized to attract advertising revenues. That takes us into two-sided markets, beyond the reach of this contribution. But antitrust techniques can be applied to both sides of the equation.

Conclusions at this stage are interim only in the sense that we lack a body of decided cases. But antitrust has much to contribute. Dominant players may outpace the privacy legislator, but antitrust enforcement may be fleeter of foot. The race of course is not between the enforcers, but rather a joint pursuit of the consumer interest.


1 Commissioner-Designate Vestager, Hearing before the Committee on Economic and Monetary Affairs of the European Parliament (Oct. 2, 2014). Since taking office, Commissioner Vestager has reiterated these remarks: see Lewis Crofts & Robert McLeod, In conversation with Europe's new Competition Commissioner, MLEX, 5 (Jan. 1, 2015) ("Very few people realize that, if you tick the box, your information can be exchanged... you are paying a price, an extra price for the product that you are purchasing. You give away something that was valuable. I think that point is underestimated as a factor as to how competition works"); see Aoife White & Peter Levring, EU Deal Probes May Weigh Value of Personal Data: Vestager, BLOOMBERG BUSINESS (Apr. 9, 2015) ("Some companies, while apparently not generating euros or cents, still make money because holding very large volumes of data generates value").

2 Preliminary Opinion of the European Data Protection Supervisor, Privacy and competitiveness in the age of big data: The interplay between data protection, competition law and consumer protection in the Digital Economy, (Mar. 2014), available at: 03-26_competitition_law_big_data_EN.pdf.

3 Concurrences and Cadwalader seminar, Antitrust, Privacy & Big Data, Brussels (Feb. 3, 2015). Synthesis available at .

4 Mr. Buttarelli assumed office as the European Data Protection Supervisor in December 2014. The original paper was published in the term of his predecessor Peter Hustinx.

5 Alec Burnside, Setting the Scene – Address at Concurrences and Cadwalader, Wickersham & Taft LLP seminar Antitrust, Privacy & Big Data (Feb. 3, 2015), available at Privacy-Big-Data-1713/?lang=en.

6 See e.g. Briefing on Big Data, Privacy, and Antitrust at George Mason University on March 18, 2015 ( ), and the 17th International Conference on Competition in Berlin on March 25-27, 2015 ( ).

7 The consultation is now closed and the CMA is reviewing public responses. Materials and feedback available at .

8 See Joaquin Almunia, Statement on the euro interest rate derivatives case (May 20, 2014), available at .

9 See Case C-235/08 Asnef-Equifax v Asociación de Usuarios de Servicios Bancarios ("Asnef"), ECR I-11125 [2006].

10 Case C-235/08 Asnef [2006], Id. at ¶ 63.

11 See Opinion of Advocate General Geelhoed, Case C-235/08 Asnef [2006], ¶ 56: "Any problems concerning the sensitivity of personal data can be resolved by other instruments, such as data protection legislation. It is clear that there must be some way of informing the borrowers concerned of what data are recorded and of granting them the right to check the data concerning them and to have them corrected where necessary. It appears that this point is settled, regard being had to the relevant Spanish legislation and also to clause 9 of the rules governing the register."

12 See European Commission Decision 2014/C 417/02 (Facebook/WhatsApp), 2014 OJ C 417/4.

13 For example, DuckDuckGo, see —"the search engine that doesn't track you."

14 See e.g. Fred B. Campbell Jr., The Slow Death of 'Do NOT TRACK', N.Y. TIMES (Dec. 26, 2014).


16 In the days before modernization under Reg 1/2003.

17 See European Commission Decision 2001/837/EC (DSD), 2001 OJ L.391/1.

18 See European Commission Decision 2000/475/EC (CECED), 2000 OJ L 187/47.

19 See Treaty on the Functioning of the European Union (TFEU), 2008 OJ C 115/53, art. 11.

20 Id. art. 167(4).

21 European Commission Guidelines on the application of Article [101(3) TFEU], 2004 OJ C 101/97, ¶ 42.

22 Case C-32/11 Allianz Hungária Biztosító Zrt. and Others v Gazdasági Versenyhivatal ("Allianz Hungaria"), not yet reported [2013], ¶¶ 39-47.

23 Charter of Fundamental Rights of the European Union, 2000 OJ C 364/10, art. 8

24 See Preliminary Opinion of the European Data Protection Supervisor, Privacy and competitiveness in the age of big data, supra note 3, ¶ 16 et sub.

25 European Data Protection Supervisor Giovanni Buttarelli, Privacy and Competition in the Digital Economy – Address at the European Parliament's Privacy Platform (Jan. 21, 2015), available at 5/15-01-21_speech_GB_EN.pdf.

26 Joaquín Almunia, Competition and personal data protection – Speech at Privacy Platform event on Competition and Privacy in Markets of Data (Nov. 26, 2012), available at SPEECH-12-860_en.htm.

27 See Faull & Nikpay, supra note 16, at 4.16 et sub.

28 Case C-32/11 Allianz Hungaria [2013], supra note 10.

29 See e.g. Commission Press Release State Aid: Commission extends information enquiry on tax rulings practice to all Member States, IP/14/2747 (Dec. 17, 2014). The European Commission has opened investigations against tax rulings in Ireland (SA.38373 relating to Apple), Luxembourg (SA.38375 relating to Fiat Finance and Trade and SA.38944 relating to Amazon), the Netherlands (SA.38374 relating to Starbucks) and Belgium (SA.37667 relating to its excess profit tax system). DG Comp's commitment to the issue is also reflected in the introduction of the Task Force on Tax Planning Practices. This enforcement activity is to be seen against the background of legislative gridlock in the reform of corporate taxation. For that broader context see the Communication from the Commission to the European Parliament and the Council on Tax transparency to fight tax evasion and avoidance, COM(2015) 136 final (Mar. 18, 2015), available at: n.pdf.

30 Faull & Nikpay, supra note 16, at 12.09 ("The adoption of the Third [Liberalization] Package provides a good example of the interplay between liberalization and competition policy").

31 See European Commission Directive 88/301/EEC on competition in the markets in telecommunications terminal equipment, 1988 OJ L.131/73; see Faull & Nikpay, supra note 16, at 13.05 ("Many of the competition law cases brought by the Commission have related to market situations where abusive behaviour crosses over regulatory obligations, and EU competition law enforcement has played a prominent role in further pursuing the liberalization agenda").

32 See TFEU, supra note 20, art. 102(a).

33 See e.g. Michael S. Gal & Daniel L. Rubinfeld, The Hidden Costs of Free Goods: Implications for Antitrust Enforcement, UC Berkeley Public Law Research Paper No. 259425 (Jan 2015), available at .

34 See e.g. Ariel Ezrachi & Maurice E. Stucke, The Curious Case of Competition and Quality, University of Tennessee Legal Studies Research Paper No. 256; Oxford Legal Studies Research paper No. 64/2014 (Oct. 1, 2014), available at .

Previously published by Competition Policy International

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.