- The Higher Regional Court of Stuttgart found that the GDPR does not prevent member states from granting competition associations the right to sue under national law.
- Violations of the information obligations under Art. 13 GDPR are considered market conduct law and can therefore constitute competition law infringements.
The OLG Stuttgart has with Judgment of 27.02.2020 (Ref. 2 U 257/19) first determined from the GDPR does not mean that Member States cannot grant competition associations standing. The GDPR only stipulates that national law must provide for a right of action and a right to complain to a supervisory authority; however, the detailed design of law enforcement is the responsibility of the Member States. The Legal standing according to § Section 8 (3) no. 2 D-UWG in the event of infringements of competition law is GDPR therefore not displaced.
Then put the Violation of information obligations according to Art. 13 GDPR constitutes an infringement of competitionbecause they are market behavior:
- The knowledge of the name and contact details of the person responsible has a consumer-protective function and provides the necessary competitive reference;
- The information about the purposes of the processing and its legal basis, as well as whether the provision of the data is required by law or contract or necessary for the conclusion of a contract, and the information about the storage period are also related to competition.
In Switzerland, it has so far been an open question whether violations of data protection law via the figure of “prejudice by breach of law” are covered by the general clause of the UWG (although here too it depends on whether the infringed provision constitutes market conduct law). In any case, this question is of little practical relevance. It is also unclear whether incorrect or missing data protection information violates Art. 3 para. 1 lit. b UWG (“information about oneself” or “information about business relationships”). However, this would only be the case if the false or missing information creates a risk of misleading the reader, which can only be the case in exceptional cases.