When should EU merger assessment address privacy? The conditions for addressing privacy issues under the EU merger control regulation

Abstract

ABSTRACT The advent of digital companies has brought benefits to society. Nevertheless, the digital era poses significant risks to consumers’ privacy. The combination, through mergers, of enormous datasets could raise further privacy concerns. It has been much discussed whether and how consumer privacy concerns should be introduced within merger assessment. This paper approaches this issue from another perspective and reflects upon the circumstances under which the EU Merger Control Regulation (EUMR) has a role to address privacy issues. Accordingly, this paper clarifies the conditions that must be satisfied in order for privacy issues to fall within the EUMR’s ambit. First, privacy should be a parameter of competition on the market and second, there must be a causal link between the merger and privacy deterioration. Following this, the paper turns to critically analyse the Commission’s treatment of privacy issues in objectively selected mergers involving some of the most powerful digital companies.