- This question was posted by the Higher Regional Court of Düsseldorf for a preliminary ruling by the ECJ. The short answer (according to Advocat General Rantos) is yes: “the examination of an abuse of a dominant position […] may justify the interpretation, by a competition authority, of rules other than those relating to competition law, such as those of the GDPR”
The background to the question is Meta Platforms (formerly Facebook) action against the decision by the German national competition authority Bundeskartellamt to prohibit Meta Platforms from processing data as provided for in Facebook’s terms of service and from implementing those terms, and imposed measures to stop it from doing so. The Bundeskartellamt found that Meta abused its dominant position in the social media market for private users in Germany by collecting data from other group services, as well as from third-party websites and apps via integrated interfaces or via cookies placed on the user's computer or mobile device, linking those data with the user's Facebook account and then using them.
Meta brought action against the decision and, in the context of that proceeding, the German court had doubts i.e. as to the ability of national competition authorities to monitor the compliance of data processing with the requirements of the GDPR and to determine and penalise breaches of the GDPR.
On 20 September 2022, Advocate General Rantos gave its opinion on the question – concluding that the German court's question was largely irrelevant because the Bundeskartellamt had not, in fact, penalised a breach of the GDPR but only taken into account non-compliance with the GDPR for the purpose of applying competition rules.
According to Advocate General Rantos, although a competition authority is not competent to establish a breach of the GDPR, it may take account, as an incidental question, the compatibility of conduct with the provisions of the GDPR: “In exercising its powers, a competition authority must assess, inter alia, whether the conduct other than that which prevails under merit-based competition, taking into account the legal and economic context in which that conduct takes place. Therefore, the compliance or non-compliance of that conduct with the provisions of the GDPR, not taken in isolation but considering all the circumstances of the case, may be a vital clue in this regard. However, the lawful or unlawful nature of conduct under Article 102 of the TFEU is not apparent just from its compliance or lack of compliance with the GDPR or other legal rules.” (§23).
For more information, please contact:
Malin Albert (Partner)
Sofia Falkner (Associate Partner)