Opinion: BKartA may examine data protection violations


According to the ECJ Advocate General, competition watchdogs may also examine possible data protection violations. The reason for this was the Bundeskartellamt’s ban on Meta from linking user data from various services such as Instagram and WhatsApp.

In the legal dispute over the data collection practice of the Facebook group Meta, ECJ Advocate General Athanasios Rantos considers it permissible under certain conditions for competition authorities to also check compliance with data protection rules (Case C-252/21).

The background to this is a decision by the Federal Cartel Office in 2019 to restrict the linking of user data from various services such as Instagram or WhatsApp to Facebook accounts. The US group is defending itself against this before the Higher Regional Court (OLG) in Düsseldorf. Among other things, this asked the European Court of Justice (ECJ) to clarify the question of whether national competition authorities are allowed to examine the compatibility of data processing with the GDPR.

The Advocate General argued that a national competition authority is not authorized to determine a violation of the European General Data Protection Regulation (GDPR). However, in the exercise of its own responsibilities, it can incidentally check whether a business practice is compatible with the GDPR. Taking into account all the circumstances of the individual case, this could be “an important indication” for determining whether this practice constitutes a violation of the competition rules, the ECJ said in a statement. However, the authority must take into account all decisions of the supervisory authority responsible under the GDPR and coordinate with them if necessary.

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“Popularity does not mean market dominance”

The German Cartel Office entered new legal territory in 2019 and prohibited the Facebook group from linking user data from its services such as Instagram and Whatsapp or from websites of other providers to their Facebook accounts without the users’ voluntary permission. The company should not exclude a user from its services if they do not give their consent, said Cartel Office President Andreas Mundt at the time. The authority argued that Facebook is dominant in the German market for social networks and is abusing this position.

The company disagreed: popularity is not synonymous with market dominance. Because the company competes with many other offers such as YouTube, Snapchat or Twitter for the attention and time of users. Facebook complies with the GDPR, which the Irish Data Protection Authority is responsible for monitoring in this case.

dpa/pdi/LTO editorial team