ABSTRACT
The Digital Markets Act (‘DMA’) will soon become part of EU law. Clearly, the DMA will not apply in a vacuum; instead, it is meant to complement national and EU rules that establish obligations for gatekeeper platforms. The text of the DMA states that the Regulation will apply ‘without prejudice’ to a series of instruments. In this paper, we focus on the interplay between the DMA and the General Data Protection Regulation (‘GDPR’). Many DMA provisions concern the gatekeepers’ data-related practices, which largely have to do with the use of personal data. As a result, complex questions will soon arise as to how several obligations established in the DMA (e.g., data combination subject to user consent, data sharing subject to user consent) are compatible with the GDPR and whether gatekeepers can seamlessly comply with both instruments. While the DMA states that it will co-exist harmoniously with the GDPR, questions arise about the interplay between these two instruments. The DMA’s data-related provisions requiring end user consent for certain gatekeeper practices, as well as the data portability obligation of the DMA illustrate this point clearly. With respect to consent-related issues, though the DMA does not contradict the GDPR (even when it goes beyond it), issues are bound to arise as to how GDPR-compliant consent is obtained by those gatekeeper platforms that have a track record of nudging users into extensive data processing that fails to meet the GDPR standards. As regards data portability, it is far from clear whether data portability within the meaning of the DMA (which is more far-reaching than data portability under the GDPR) is lex specialis that prevails over the GDPR, thereby rendering the ‘without prejudice’ clause of the DMA devoid of purpose.
Geradin, Damien and Bania, Konstantina and Karanikioti, Theano, The interplay between the Digital Markets Act and the General Data Protection Regulation (August 29, 2022).
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