Volume 13, Issue 2 - Special Issue: Competition Law, Data Protection and Liability – Where is EU Tort Law Heading? / Guest Editor: Barbara C Steininger

This article concerns recent developments in the field of liability claims for infringements of EU competition law. After overviewing topical matters, this contribution focuses on the Court of Justice of the European Union (CJEU) and the continuing relevance of its case law to several basic questions that arise in damages cases. The evolving interpretation of primary law, and what is required to ensure its full effectiveness, still occupies a central position in the private enforcement of EU competition law. Moreover, principles such as effectiveness and equivalence constrain the discretion of Member States to lay out and apply supplementary remedial and procedural rules. The foregoing implies that, despite the apparent legislative harmonisation of damages claims in the EU, litigants and national courts should follow developments in the case law.

According to art 82(1) of the General Data Protection Regulation (GDPR), ‘any person who has suffered material or non-material damage as a result of an infringement of this Regulation shall have the right to receive compensation from the controller or processor for the damage suffered’. This provision is at the core of the private enforcement of data protection rights; its interpretation could thus have major implications for business, administration and other organisations. Despite its potential for mass litigation, the case law under art 82(1) GDPR is limited and, five years after the Regulation entered into force, several questions remain still unanswered. This paper gives an overview of the most significant issues relating to the right of data subjects to the compensation of non-pecuniary loss, pending five significant CJEU judgments, which are expected to be delivered in 2023.

Compared to art 82(1) of the General Data Protection Regulation (GDPR), which since 2018 grants data subjects a claim for damages resulting from the infringement of European data protection law, private enforcement of European competition law looks back on a much longer history. Thus, its concepts and learnings may serve as a model for data protection law. However, any potential transfer from one area to the other must be carefully weighed, as both the factual circumstances and the underlying regulatory framework differ. Against this background, this paper aims at identifying important similarities and differences between the private enforcement of European competition and data protection law. Amongst others, it reaches the conclusion that both fields of law – although for different reasons – share a comparably high level of Europeanisation and that the primary aims of private enforcement generally align. In addition, potential for spill-over effects from the area of competition to data protection law is identified, namely with regard to causation and the European concept of undertaking.