German legal dispute over Facebook data use sent to European Court of Justice

The European Court of Justice has been asked to clarify whether Germany's competition authority can order Facebook to put a halt to its data collection practices, due to concerns over alleged abuse of its dominant position and violations of EU data protection law.  

Germany's Federal Cartel Office had imposed restrictions on the US tech giant's sharing of data between its own platforms Facebook, Instagram and WhatsApp as well as third-party apps in early 2019. [Shutterstock]

The European Court of Justice has been asked to clarify whether Germany’s competition authority was right to order Facebook to halt its data collection practices, due to concerns over alleged abuse of its dominant market position and violations of EU data protection law.

In 2019, Germany’s Federal Cartel Office (Bundeskartellamt) imposed restrictions on the US tech giant’s sharing of data between its own platforms Facebook, Instagram and WhatsApp as well as third-party apps, claiming that the extent to which Facebook collects data without the consent of the user and shares it between its services is an abuse of power.

At the time, Andreas Mundt, president of the Federal Cartel Office, described the order as a form of ‘internal unbundling.’

However, the decision from Germany’s competition authority faced a backlash in preliminary legal proceedings, with Düsseldorf’s Higher Regional Court Judge Jürgen Kühnen saying Facebook’s data use did not result in an abuse of its dominant position.

An appeal to Karlsrühe’s Federal Supreme Court lodged by Germany’s competition authority followed and was won by Mundt’s team.

On Wednesday (24 March), judges in Düsseldorf returned to the file to deliver their final verdict on Facebook’s appeal of the original decision. The court reached the following conclusion:

“The question of whether Facebook is abusing its dominant position as a provider on the German market for social networks, because it collects and uses the data of its users in violation of the GDPR, cannot be decided without referring to the ECJ,” a statement from the Düsseldorf court read.

Leading the case was Düsseldorf’s Judge Jürgen Kühnen, who had presided over the earlier decision of the court, which had run counter to Germany’s competition authority’s claims.

Kühnen reaffirmed the earlier decision of his court but ultimately decided that a final decision must be taken up by the European Court of Justice (ECJ), because the original order concerns an allegation related to a violation of EU law.

In response to the news that proceedings will now be transferred to the Luxembourg courts, Facebook stood its ground, highlighting its belief that the competition authority’s original order was erroneous while at the same time praising the position of leading Judge Kühnen.

“Today, the Düsseldorf Court has expressed doubts as to the legality of the Bundeskartellamt’s order and decided to refer questions to the Court of Justice of the European Union,” a Facebook spokesperson told EURACTIV.

“We believe that the Federal Cartel Office’s order also violates European law.”

The Düsseldorf court will make a formal submission to the ECJ  in writing in the coming weeks.

[Edited by Zoran Radosavljevic]

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