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Matthew is a commercially-focused antitrust/competition lawyer, who lived and worked in Brussels for 18 years and is now based in London. He specializes in all aspects of contentious and non-contentious EU and UK antitrust/competition law, including State aid/subsidies. He also advises on EU and UK internal market and regulatory law, as well as BREXIT issues and EU/UK Relations law.

On 7 February 2019, the German competition law regulator, the Federal Cartel Office (FCO), concluded a lengthy investigation into Facebook.  It found that the company abused its dominant market position by making the use of its social network conditional on the collection of user data from multiple sources.

The FCO’s probe into Facebook is one of the first cases in the EU concerning the intersection between the EU’s new data privacy laws (contained in the General Data Protection Regulation or GDPR) and competition law. The abuse finding under German competition law (which is broadly the same as the pan-EU competition law in this regard) relied on what was, according to the FCO, a breach of EU data protection law.
Continue Reading Federal Cartel Office vs. Facebook: When Data Privacy and Competition Law Collide

Only a few weeks ago, EU Competition Commissioner Vestager said in a speech, “We continue to look carefully at this issue, but we haven’t found a competition [antitrust] problem yet” (see here).  She was referring to antitrust issues arising out of big data, in her words “the huge collections of information that companies can use to understand their environment in a way they never could before.”

Finally, there is a case, not from the European Commission (EC; Vestager’s fiefdom, which deals with antitrust issues EU-wide), but from the German antitrust regulator, the Bundeskartellamt or BKA.  The BKA, perhaps emboldened by representing the EU’s largest economy, is known for pushing the boundaries of antitrust enforcement, so the source is perhaps not too surprising. The target is also not particularly surprising; a large U.S. technology company, Facebook.  However, the type of case, based on infringement of the data protection rules as opposed to “big data” per se, is more surprising.

The BKA, which applies EU and German competition law, announced its investigation into Facebook on March 2, 2016, via a press release, see here.  The BKA is investigating suspicions that, due to its terms and conditions (Ts & Cs) relating to users’ data, Facebook has abused its (possibly) dominant position in the market for social networks.

The BKA’s initial view is that certain of the Ts & Cs violate EU data protection rules. It points out that, while not every infringement of the law on the part of a dominant company is also relevant under competition/antitrust law in the EU and Germany, in this case Facebook’s use of unlawful Ts & Cs could represent an abusive imposition of unfair conditions on users.

The imposition of unfair trading conditions is a well-established example of the abuse of a dominant position under EU and therefore German antitrust law. (Indeed, the basic EU Treaty provision on abuse of dominance refers to this as an example of a prohibited activity.)

But is Facebook dominant (in a relevant market or markets in the EU and/or Germany) in the first place?  Absent this, there can be no abuse and therefore no antitrust infringement as a result of the alleged activity.

On this issue, the BKA stated that it “has indications” that Facebook has a dominant market position in a market for social networks.  This may be difficult for the BKA to establish.  In the EU merger case Facebook/WhatsApp (see here), the EC considered the market for social networking services and left open the boundaries of what is included within this.

However, the EC still analyzed this market and concluded that Facebook faced plenty of competition, stating, “A large number of companies offer online services which include a social networking functionality …. The results of the market investigation indicate that the companies which are most clearly perceived by respondents as providers of social networking services are Facebook, Google+, LinkedIn, Twitter and MySpace.”

Assuming the BKA can show dominance, what about part two of the analysis (i.e., assuming Facebook is dominant, what exactly is the alleged abuse)? 
Continue Reading The Intersection of Big Data and Antitrust Law − Finally a Case in the EU

The EU’s data watchdog, the European Data Protection Supervisor (EDPS), recently published his views in a report on “the interplay between data protection, competition law and consumer protection in the digital economy”. His basic thesis is something that has been self-evident, and much commented upon, big data is an issue EU regulators need to work