The 1st Cartel Senate of the Düsseldorf Higher Regional Court today, chaired by Prof. Dr. Jürgen Kühnen is negotiating the complaints from Facebook against the Federal Cartel Office’s removal order of February 6, 2019 (B6 – 22/16) (see the announcing press release).
The office had forbidden the Irish Facebook company, which carries out the data collection and use that is deemed to be in breach of antitrust law, its German sister company, the American parent company of the Facebook group and finally all of the companies “affiliated with the three companies”, user and device-related Linking and using Facebook user data that is collected and stored when using WhatsApp, Instagram and Oculus at the same time with the Facebook data, as well as the device and user-related data that is collected when visiting third-party websites or when using them third-party mobile apps are generated (Facebook Business Tools), to be linked and used, provided that the Facebook user has not previously engaged in this data collection and use in accordance with the provisions of the General Data Protection Regulation (DSGVO) has consented.
During the hearing, the Senate commented on the factual and legal situation in detail.
1.
With regard to the considerations with which the Office had justified its decision in the contested ruling, the Senate came to the conclusion that the Facebook complaints were only used after the Court of Justice of the European Union (ECJ) can be decided. The question of whether Facebook is abusing its dominant position as a provider on the German market for social networks because it uses the data of its users in violation of the DSGVO raised and used, can without invoking the ECJ not be decided. Because the interpretation of European law is the ECJ appointed. With a submission, the Senate follows the suggestion that the Federal Cartel Office itself had expressed in the urgent procedure against the contested official decision.
2.
The Senate referred to several legal aspects of the statements with which the Federal Court of Justice had rejected Facebook’s interim legal protection request in the urgent proceedings and on which the office also relied in the complaint procedure.
The Federal Court of Justice had assumed that the official order was justified from the point of view of the imposed service expansion. Facebook is to be blamed for the users of their social network No choice between using the network solely on the basis of the data provided to the Facebook.com network itself (small amount of data) and using the network also on the basis of the data stored outside the network, i.e. on WhatsApp, Instagram and Oculus as well as on third-party websites and apps ( large amount of data). According to the Federal Court of Justice, this means that Facebook users will be forced to expand their services.
The Senate has stated that, according to the case law of the Federal Court of Justice, a cartel court is not authorized to change the grounds of the official order to such an extent that the nature of the decision of the cartel authority changes, and that taking into account the previous highest court rulings of the Federal Court of Justice and the Federal Administrative Court there is much to suggest that the accusation of the imposed service expansion is a completely different, essentially different antitrust violation.
The Senate has also raised the question of whether the antitrust violation of the lack of choice for the Facebook user is even included in the prohibition of the office. In this context, he also pointed out that an “imposed” service expansion can possibly also be prevented by the fact that the Facebook user must have “consented” to the data collection and use in dispute. In addition, there are other possibilities that Facebook can use to stop the antitrust violation in question. Facebook can not only close its social network in Germany, but – as the Federal Court of Justice believes – also allow in its terms of use a choice between the collection and use of an allowed small amount of data and the unauthorized large amount of data. The selection from these alternative storage options may be taken from Facebook in violation of Section 32 GWB if it is instructed to establish an antitrust situation by requiring the Facebook user to have consented to data collection and data use.
In addition, the Senate has set out in more detail that for some of the user data in dispute, in particular for those from Instagram and Oculus, no viable conclusions can be made on the questions considered relevant by the Federal Court of Justice as to whether a service is being forced on Facebook users that they may not want and that would not have been expected in the competition, and whether this performance enhancement would hinder Facebook competitors in competition.
3.
In conclusion, the Senate justified the fact that the office’s prohibition statement is incorrect, insofar as the affiliated companies of the three Facebook companies involved in the proceedings are held accountable, and also insofar as the office is the German sister company of the Irish Facebook company that collects the data and the American parent company of the Facebook group. The affiliated companies were not granted a fair hearing before the contested official decision was issued. The claim against the German sister company is incorrect because it has no decisive influence on its Irish sister company and therefore cannot make a significant contribution to ending the antitrust infringement. The injunction against the Facebook parent company is unlawful because it is at the discretion of the office and the office has not made any discretionary considerations. In addition, the office has not found any indications that the Irish Facebook company will not comply with the antitrust authority requirement and that the parent company must therefore also be held accountable for this reason.
At the end of the hearing, the Senate has to interpret the provisions of the DSGVO an order for reference to the ECJ proclaimed according to its essential content. The decision will be made in writing in the next few weeks and sent to those involved in the proceedings.
Düsseldorf, March 24, 2021
Dr. Michael Börsch
Press Secretary
Cecilienallee 3
40474 Düsseldorf
Telephone: 0211 4971-411
Fax: 0211 4971-641
E-mail: [email protected]
–
