Fundamental Rights in Digital Markets – Element for a Competition Law Theory of Harm or an Isolated Meta-Phenomenon?[*]This article has been peer-reviewed.
By Elisabeth Wondracek[**]PhD candidate at Heinrich-Heine-Universität Düsseldorf.
I. Introduction
Competition law has traditionally been understood as pursuing a limited objective: the protection of competition as a market structure. Accordingly, fundamental rights have rarely been treated as an explicit analytical element in the application of Art. 102 TFEU.[1]Udo Di Fabio, ‘Wettbewerbsprinzip und Verfassung’ in FIW (ed), Freier Wettbewerb – Verantwortung des Staats (Carl Heymanns Verlag 2007) 10. Yet recent developments in EU case law, particularly in digital markets, increasingly challenge this orthodox view. The rise of large digital platforms has transformed market structures. Concentrations of economic and regulatory power interact with data-driven business models and create new forms of dependency and abuse. Against this background, the judgment of the Court of Justice in Meta Platforms[2]Case C-252/21 Meta Platforms v Bundeskartellamt ECLI:EU:C:2023:537. marks a turning point. This recognition of privacy and data protection as relevant considerations within Art. 102 TFEU reflects a broader shift toward the inclusion of non-competitive values in competition analysis. At first sight, this development appears to depart from the traditional understanding of competition law as a purely economic discipline. However, a closer examination reveals that this shift is not merely pragmatic or policy-driven. Rather, it reflects the binding and horizontal effect of EU primary law. Fundamental rights form part of EU primary law and are binding on all EU institutions. The Charter of Fundamental Rights of the European Union (CFR) therefore necessarily influences the interpretation and application of competition rules.
This development raises a fundamental doctrinal question: are such considerations exceptional and case-specific, or do they reflect an emerging theory of harm grounded in fundamental rights? The focus of this paper is to examine the doctrinal basis for the need to take non-competitive values into account for applying Art. 102 TFEU. This paper argues that EU law requires a structured and limited integration of fundamental rights into Art. 102 TFEU. Rather than constituting a Meta-phenomenon, fundamental rights provide a coherent doctrinal basis for including non-competitive values in competition law, particularly in digital markets.
