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The EU Digital Markets Act (DMA) aims at improving the ‘fairness’ and ‘contestability’ of digital markets. Art. 5(2) DMA prohibits gatekeepers from combining and cross using the end user’s data collected from different sources within its own eco-system. However, data combination is possible if the end-user provides his ‘consent’ to such data combination. The users’ consent should comply with the requirements of the General Data Protection Regulation (GDPR). The chapter discusses the relationship between the DMA and the GDPR, focusing on the users’ consent as a lawful basis to the processing activities of data combination and cross-use under Art. 5(2) DMA. The chapter argues in favour of a ‘privacy setting’ solution: at the first log in, the user would face on his other screen a cookie wall, asking the user to opt-in to specific types of data combination activities by the gatekeeper. Secondly, the chapter argues that the DMA represents a lex specialis in comparison to the GDPR. Therefore, while respecting the general criteria indicated by Articles 4(11) and 7 GDPR, the user’s consent under Art. 5(2) DMA should be ‘adjusted’ to the special features of the Digital Markets Act.

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User Consent at the Interface of the DMA and the GDPR: A Privacy-Setting Solution to Ensure Compliance with Art. 5(2) DMA

  • 会议论文

  • 发表日期：

    2025年

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  • Marco Botta,
  • Danielle Borges

摘要

The EU Digital Markets Act (DMA) aims at improving the ‘fairness’ and ‘contestability’ of digital markets. Art. 5(2) DMA prohibits gatekeepers from combining and cross using the end user’s data collected from different sources within its own eco-system. However, data combination is possible if the end-user provides his ‘consent’ to such data combination. The users’ consent should comply with the requirements of the General Data Protection Regulation (GDPR). The chapter discusses the relationship between the DMA and the GDPR, focusing on the users’ consent as a lawful basis to the processing activities of data combination and cross-use under Art. 5(2) DMA. The chapter argues in favour of a ‘privacy setting’ solution: at the first log in, the user would face on his other screen a cookie wall, asking the user to opt-in to specific types of data combination activities by the gatekeeper. Secondly, the chapter argues that the DMA represents a lex specialis in comparison to the GDPR. Therefore, while respecting the general criteria indicated by Articles 4(11) and 7 GDPR, the user’s consent under Art. 5(2) DMA should be ‘adjusted’ to the special features of the Digital Markets Act.