There is currently a controversial discussion as to whether violations of data protection law can be subject to a warning under competition law. It remains to be seen whether violations of the General Data Protection Regulation (DSGVO) and the new Federal Data Protection Act (BDSG neu) will be considered a violation of Section 3a UWG by the courts.
Under the old law, some data protection regulations were regarded as rules of market conduct and could therefore be subject to competition law warnings (Sections 4a, 28 BDSG aF; Section 13 TMG).
There have been many reports in the press that violations of the GDPR can now automatically be subject to competition law warnings. There is currently no case law on this.
It should be noted, however, that a weighty opinion in the literature assumes that violations of the GDPR cannot be warned under Section 3a UWG(Köhler in Köhler/Bornkamm/Feddersen,UWG-Kommentar, 36th edition 2018, Section 3a Rn 1.40a and 1.74b). This is justified by the fact that the GDPR in Articles 77-84 GDPR, with the exception of Art. 80 II GDPR, basically contains conclusive regulations. According to this opinion, it is therefore excluded to grant a company's competitors a right of claim and a right of action under the UWG by applying Section 3a UWG.
Therefore, if you receive a warning for violations of the General Data Protection Regulation, you should not rush to issue a cease-and-desist declaration. Instead, you should contact a specialised lawyer for data protection law and discuss the factual and legal situation with him. We are happy to be your contact on this topic.
GoldbergUllrich Attorneys at Law 2018