Protecting Consumers and Their Data Through Competition Law? Rethinking Abuse of Dominance in Light of the Federal Cartel Office's Facebook Investigation
European Competition Journal (ECJ), Vol. 14, No. 2-3, pp. 195-215, October 2018; DOI: 10.1080/17441056.2018.1538033
23 Pages Posted: 23 Feb 2019
The Facebook proceeding of the German Federal Cartel Office is the latest among a number of competition law investigations that target large US-American technology companies. The Office suspects that Facebook abused its dominant position on the market for social networks by imposing unfair data privacy conditions upon its users. This preliminary finding presents a legal novelty because it relies mainly on the fact that the company violated rules outside of competition law, namely data protection law. This calls for a wider evaluation of the currently debated relationship of competition and data protection law. We investigate if such an abuse theory is also conceivable under EU competition law, specifically under Art 102 TFEU. Although the Court of Justice of the European Union separates competition and data protection law strictly, it hinted at a different understanding in a recent judgment. Also, the sentiment of the nascent ‘Vestager School’ with its emphasis on fairness may support this theory of an abuse. We conclude that this novel concept is conceivable under EU law.
Note: This article is published in the Max Planck Private Law Research Paper Series with the permission of the rights owner, Routledge (Taylor & Francis Group). This is an Open Access article distributed under the terms of the Creative Commons Attribution License (CC-BY 4.0), which permits unrestricted use, distribution, and reproduction in any medium, provided the original work is properly cited.
Keywords: Competition law, data protection, Facebook, Bundeskartellamt, fairness
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