On September 20, 2022, Advocate General Rantos delivered his opinion on the Higher Regional Court of Düsseldorf (the “Düsseldorf Court”)’s request for a preliminary ruling concerning the decision of the Bundeskartellamt (German Federal Cartel Office, “FCO”) which had found that Meta Platforms (“Meta”, formerly Facebook Inc.) abused its dominant position in relation to the collection, processing, aggregation and use of personal data of its users in 2019.[1] The Advocate General concluded that a competition authority may examine, as an incidental question, the compliance of the practices under investigation with the General Data Protection Regulation (“GDPR”) rules, while informing and, where appropriate, consulting the competent supervisory authority on the basis of the GDPR.[2]

Background

On February 6, 2019, the FCO found that Meta had abused its market power on the German market for social networks by making the use of its social network conditional on the collection of user data from multiple sources. The FCO ordered Meta to adapt its terms of services within a year and combine the data it collects from other sources with Facebook user accounts only if it obtains “voluntary consent” from users.

Meta appealed the decision to the Düsseldorf Court, which, on March 24, 2021, decided to stay the proceedings and to refer seven questions to the Court of Justice for a preliminary ruling. In terms of the intersection of competition law with GDPR rules, the Düsseldorf Court asked whether a national competition authority could, in parallel to an ongoing investigation from the competent data protection supervisory authority, and when prosecuting infringements of the competition rules: (i) rule primarily on the infringement of GDPR data processing rules and issue an order to end that breach; and (ii) establish, as an incidental question, whether the data processing terms and their implementation comply with the GDPR. The remaining questions sought clarifications on the interpretation of certain GDPR provisions.

Opinion

In his opinion, Advocate General Rantos first explains that, in the course of their investigations, competition authorities can take account of the compatibility of a commercial practice with the GDPR, but only as an incidental question. He explains that non-compliance with GDPR provisions, depending on the legal and economic context in which it takes place, may constitute an important indication of whether that practice amounts to a breach of competition law insofar as it may entail resorting to methods other than those prevailing under merit-based competition. That being said, it is not enough to demonstrate the non-compliance with the GDPR or other legal rules in order for the conduct to amount to an infringement of Article 102 TFEU.

Advocate General Rantos clarifies that such an incidental examination is without prejudice to the application of the GDPR by the competent supervisory authorities, which are the sole competent authorities for the application of that regulation. To that end, he offers some guidelines for the interactions that could arise between the two:

  • First, to the extent possible, competition authorities must comply with, and not deviate from, any decision adopted by the supervisory authority for the same conduct or similar practices. Competition authorities should consult supervisory authorities when doubts arise as to the interpretation they have previously given.
  • Second, it is the competition authorities’ duty to inform and cooperate with the competent supervisory authority where the latter has already begun an investigation regarding the same practices, or has indicated its intention to do so. Advocate General Rantos mentions that competition authorities could even have to await the outcome of the supervisory authority’s investigation before starting their own assessment, provided this would not result in an unreasonable investigation period and undermine the rights of defense of the data subjects.

Implications

Advocate General Rantos’ non-binding opinion, if followed by the Court of Justice, could further encourage the Commission and national competition authorities to assess compliance with data protection rules in future competition law investigations.

Companies should carefully review their data processing policies from a competition law angle, given the entry into force of the EU Digital Markets Act on November 1, 2022, which sets the bar higher for data usage practices.

[1]      Decision of the Bundeskartellamt (6th Decision Division) in Case B6-22/16.

[2]      Meta Platforms and Others (Case C-252/21), opinion of Advocate General Rantos, ECLI:EU:C:2022:704.