The Court of Justice of the European Union (CJEU) has decided: Within its jurisdiction, a competition authority can independently take action against the unlawful data protection practices of powerful platforms. However, it must consult with the responsible data protection authorities. The Court also gave consumer-friendly answers to important questions of principle regarding the GDPR. The Federation of German Consumer Organisations (Verbraucherzentrale Bundesverband – vzbv) has been involved in the proceedings of the Bundeskartellamt (Federal Cartel Office) since 2016 and represents the interests of consumers. Ramona Pop, Executive Director of vzbv, says the following:
The decision is a significant stepping stone to successfully curbing the excessive amounts of data collected by the big platforms. Corporations like Meta abuse their market power to the disadvantage of consumers to give themselves a competitive edge. The experience of the past years shows that we can only act against this by working together. This is why vzbv has been actively involved in the proceedings of the competition watchdog from the start – in addition to its own actions against Meta.
Via an order in spring 2019, the Federal Cartel Office essentially prohibited Meta (then still Facebook) from making the use of social network Facebook contractually dependent on permissions to collect all kinds of user data from third party sources (such as WhatsApp, Instagram, social plugins, business analysis tools) for its purposes and to connect these to already existing data. Facebook did not want to obtain extra consent from consumers for this. The competition authority entered new territory with this approach, following a hearing lasting almost three years. Meta sought to block the order.
Most recently, the Higher Regional Court of Düsseldorf presented various questions regarding competence and GDPR interpretations to the CJEU for a preliminary ruling. The CJEU responded to these with its ruling today. Accordingly, member-state competition authorities may intervene if companies abuse their market dominance. Should this also involve data protection violations, the competition authorities must, however, consult with the responsible data protection authority in order to guarantee a consistent application of the law. In the case of Meta this is the Irish Data Protection Commissioner (DPC). For the processing of consumer data, the CJEU confirmed a very strict, consumer-friendly interpretation of the European data protection law that significantly deviates from Meta’s current practices. On 20 September 2022, the EU Advocate General responsible for the proceedings also made similar statements.
Since 2009, vzbv has initiated and often successfully concluded several injunction proceedings against Facebook and other parts of the Meta corporation. vzbv has participated in the proceedings of the Federal Cartel Office since 2016 as an official intervening party and advocates for consumers with its own applications and statements.
In addition to competition and data protection law there will be further new regulations for curbing gatekeepers such as Meta in the future. For example, consumer organisations can collectively enforce consumer rights if a company does not comply with the rules of the new Digital Market Act (DMA).