The Facebook Decision of the Federal Cartel Office (Update)

In its decision of 23 June 2020 the Federal Court of Justice (BGH) confirmed the Federal Cartel Office’s finding that Facebook dominates the German market for social networks.

According to the court, Facebook also abused this dominant position. However, not, as ascertained by the Federal Cartel Office, by processing user data in violation of the General Data Protection Regulation (GDPR). Rather, Facebook abused the absence of competition by giving users no choice as to the extent of data processing. Specifically, the users should have been able to choose between intensive personalisation of the services (based on data that is obtained also outside the social network) and personalisation based solely on data that results from the use of the social network.

The reasons for the decision are not yet available; the press release of the Federal Court of Justice can be downloaded here.

Background: Facebook had filed an appeal against the Federal Cartel Office’s initial ruling (decision of 6 February 2019). Additionally, Facebook had applied to the court of appeal to order the suspensive effect of its appeal. The Dusseldorf Court of Appeal (OLG) had granted this request because of serious doubts about the legality of the decision (order of 26 August 2019, Kart 1/19 (V)). The current decision of the Federal Court of Justice is based on the Federal Cartel Office’s appeal against this order. The Düsseldorf Court of Appeal will still have to decide on the main issue.

Dr. Michael K. Bergmann gave a lecture on 25 June 2019 at the working session of the Studienvereinigung Kartellrecht in Düsseldorf on the topic: “The Facebook Decision of the Federal Cartel Office”. His presentation can be downloaded from the Studienvereinigung’s website. Together with Dr. Johannes Modest he also published an article covering the decision taken by the Dusseldorf Court of Appeal and the core questions of the Federal Cartel Office’s decision (Neue Zeitschrift für Kartellrecht, issue 10/2019, p. 531 ff.).

(23 October 2019; update of 26 June 2020)