Incorporating privacy considerations into EU data-driven merger review

In recent years, large digital companies have been gobbling up hundreds of smaller highly innovative firms involved in the collection and the processing of data. Some regulators, academics and practitioners have expressed concerns that Big Tech might use the increased market power and the greater concentration of consumers’ personal data stemming from data-driven mergers to harm consumers in the form of lower privacy protection. They wonder whether and to what extent the EU Commission and/or national competition authorities should take into account data protection considerations when reviewing transactions under the Merger Regulation and/or national merger control rules. The Commission’s decisional practice points towards three possible routes for integrating privacy concerns into competition analysis. Given their respective shortcomings, we explore the possibility of using the German Federal Cartel Office’s line of reasoning in its Facebook decision as a model for the incorporation of privacy considerations into EU data-driven merger analysis.