Back to Stage One? – AG Rantos’ Opinion in the Meta (Facebook) Case
24 Pages Posted: 19 Apr 2023
Date Written: April 11, 2023
In 2019, the Bundeskartellamt (German competition watchdog) held that Facebook abused its dominant position on the German market for social networks for private users by collecting data about users, on a large scale and without sufficient consent, with the purpose of exploiting the thus accumulated user data profiles for its own purposes. Suspensive effect of Facebook’s appeal against this decision was granted by the Düsseldorf Higher Regional Court, which levelled heavy criticism against the authority’s approach. On subsequent appeal, the German Federal Court of Justice overturned the Düsseldorf decision and the Higher Re-gional Court referred questions on the GDPR and its application by competition authorities to the CJEU. After Advocate General Rantos has published his opinion on the referral, and with the CJEU decision ahead, this contribution compares the positions of the BKartA, the German courts and the Advocate General with regard to key elements of the case, namely the exist-ence and relevance of Facebook’s dominance, a competition authority’s competence to apply the GDPR, the assessment of whether Facebook violated GDPR provisions, and causality between dominance and infringement. Insights and conclusions drawn from this comparison focus on what the CJEU should address in its upcoming decision. An Annex charts the essen-tial positions taken and reproduces the wording of the referral questions.
Keywords: GDPR, Facebook, Meta, dominance, imbalance, consent, objective necessary data processing, causality between dominance and abuse
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