Penalty for Facebook by German Federal Cartel Office

What is the reason behind this?

In a judgement, the German Federal Supreme Court confirmed the imposition of a fine by the German Federal Cartel Office against Facebook. Although the judgement of the German Federal Supreme Court was issued more than two months ago, I would like to take up the issue again here and draw attention to two problems that are made clear in this decision.

1ST PROBLEM:

First, it should be noted that this decision will not have any legal consequences for everyday life and behaviour on and with Facebook at the moment.

This is simply due to the fact that the judgement is a summary proceeding. In these summary proceedings, the court decided on a fine imposed on Facebook by the German Federal Cartel Office in 2019.

Here is the first point of criticism: the length of time the summary proceeding lasted!

Before the fine was imposed, the Federal Cartel Office had already investigated for 3 years. This so-called summary proceeding took more than 4 years until it became legally binding!

This appears to be extremely problematic, especially in disputes related to the digital economy, because economic power in digital markets establishes itself quickly.

Facebook, on the other hand, now has the opportunity to have the decision on the main proceedings reviewed intensively once again. It is possible that the German Federal Supreme Court will also seek an opinion from the European Court of Justice in the proceedings, which would mean years of main lawsuits, without any legally binding final decision.

Here the legislator is undoubtedly called upon to ensure effective legal protection!

2ND PROBLEM:

The second important aspect of this decision is that the German Federal Supreme Court did not adopt the substantive justification of Facebook’s dominant position – as in the original decision of the Federal Cartel Office. The German Federal Supreme Court has NOT based its decision on a violation of the German Data Protection Act as a violation of antitrust law but has instead classified Facebook’s terms and conditions as questionable under antitrust law.

In doing so, the German Federal Supreme Court avoids deciding on the question of whether a violation of the European Data Protection Act can in principle constitute a violation of antitrust law. Sooner or later, the German Federal Supreme Court will not be able to ignore a statement on this question. Because the essential point of the problem is that the European Data Protection Act does not want to protect private personal data against an excessively encroaching state, but against the economic interests of the internationally very well positioned Internet platforms! Their business model consists precisely in generating sales through the intelligent use of personal data.

In conclusion, we can say:

Since we are only at the beginning of the intensive highest court clarification of legal questions on the application and scope of the European Data Protection Act, the German Federal Supreme Court will sooner or later have to take a clear position on this issue! In essence, the question is whether the field of protection of fundamental rights, which is part of public constitutional law, also applies directly to legal relations with Internet platforms in the private sector under civil law.

This post is also available in: German