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Possibility of formal warnings in response to violations of the GDPR

January 2019 - Corporate & Commercial. Legal Developments by GRP Rainer LLP.

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Whether a violation of the General Data Protection Regulation (GDPR) constitutes a violation of competition law and can therefore, as a matter of law, give rise to a formal written warning is still disputed.

Many were concerned that the General Data Protection Regulation, GDPR for short, entering into force would herald a veritable wave of written warnings in response to violations of the Regulation. These concerns have so far proven unfounded. We at the commercial law firm GRP Rainer Rechtsanwälte note that one probable reason for this is the sheer lack of consistency in the case law to date on whether a violation of the GDPR constitutes a violation of competition law and can thus lead to a formal written warning.

The courts have thus far delivered different rulings on the matter. The Landgericht Würzburg, the Regional Court of Würzburg, found in one case involving a violation of the GDPR that it represented a violation of Germany’s Unfair Competition Act, the Gesetz gegen den unlauteren Wettbewerb (UWG). It held that competitors could issue a formal written warning as a result of the violation of competition law or sue for an injunction or damages (Az.: 11 O 174/18 UWG).

The Landgericht Bochum, the Regional Court of Bochum, reached a different conclusion. It ruled in a judgment from August 7, 2018 that violations of the GDPR do not constitute violations of competition law and competitors are therefore not allowed to issue formal warnings in response to them (Az.: I-12 O 95/18). In the case in question, an online merchant had been issued with a formal warning as well as an injunction suit by a rival business for violating the GDPR. The LG Bochum dismissed the claim, ruling that the provisions in articles 77 to 84 of the Regulation dealing with claims brought by competitors are exhaustive. Accordingly, only certain institutions and organizations that are not intent on making a profit are entitled to safeguard the interests of those affected. The Court therefore concluded that the legislature wanted to avoid the possibility of competitors being issued with formal written warnings for violations of the GDPR.

The different interpretations in the case in the law suggest that the GDPR will continue to occupy the courts for some time yet. To avoid legal disputes, businesses and traders ought to assess whether they are complying with data protection requirements. Violations can potentially lead not only to formal warnings from competitors but also heavy fines imposed by supervisory authorities. Lawyers who are experienced in the field competition law can offer advice.

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