EU Competition Law, Fundamental Rights and the Principle of Transparency – An Evolving Relationship

Abstract

Faced with the challenges posed by gatekeepers, EU competition law is undergoing a period of significant change. I attempt to show in this article that one can understand this change as a shift in the relationship between EU competition law and fundamental rights. More precisely, I show that the initial relationship between these two factors has been operational, in the sense that fundamental rights have been relied upon to operationalize the substance of competition law. In the operational relationship, the right to a fair trial has been deployed by the European Commission to create and expand its quasi-judicial arm. This long-standing operational relationship has recently evolved into an informative one, where the rights to privacy and data protection have informed the European Commission’s merger assessments involving gatekeepers. Finally, I argue that, in light of the Meta/Facebook case and recent EU legislation, the relationship between EU competition law and fundamental rights can be called foundational. Indeed, it appears that both the CJEU and EU legislators intend to inject fundamental rights into the foundations of EU competition law. I also highlight how the principle of transparency has played an important role in these developments as an enabler and magnifier. These changes are significant and will impact the work of competition authorities, data protection authorities and other public bodies in the EU.