The Concept of Fairness: Linking EU Competition and Data Protection Law in the Digital Marketplace

In the rapidly proliferating digital marketplace, the business model of numerous companies is based on the processing of vast amounts of personal data. The data economy has triggered controversies regarding the intersection between EU competition law and data protection law. This article embarks on a conceptual analysis of “fairness”, and tests the hypothesis that there exist commonalities between the two fields of law. The hypothesis is based on the fact that both competition and data protection law make explicit reference to the concept of fairness in defining infringements, and that EU law in general terms is subordinate to the principle of coherence. The article concludes, however, that although the concept is, to some extent, applied coherently in the two fields, its ability to offer legal certainty for the actors in the digital economy remains limited unless and until the administrative and judicial authorities elaborate its precise contents more fully. A joint elaboration could offer opportunities to move from “deliberate isolation” towards “constructive coherence”.