CYIL vol. 12 (2021)

michal petr CYIL 12 (2021) privacy policies could be considered from a competition standpoint whenever these policies are liable to affect competition, notably when they are implemented by a dominant undertaking for which data serves as a main input of its products or services. In those cases, there may be a close link between the dominance of the company, its data collection processes and competition on the relevant markets, which could justify the consideration of privacy policies and regulations in competition proceedings. 58 Indeed, it is not rare that an abuse of dominance was found in a breach of other, non- competition regulation, as was the case for example with regard to intellectual property rights. 59 Even though the assessment of breaches of data rules within the framework of exploitative abuse of dominance is thus in principle permissible, it does not mean that competition law can be applied in all such cases. It is necessary to demonstrate that the breach of data privacy rules has anticompetitive effects, in particular decreased efficiencies. 60 Whether this was the case in the Facebook decision is subject to challenge. Unsurprisingly, the German court reviewing the BKA’s decision has recently turned to the CJEU with a number of questions concerning the relationship between competition and privacy protection law. 61 3. Specifics of German Competition Law It has already been mentioned that the BKA’s decision was adopted on the basis of German competition law only, not the EU’s. This might have influenced the decision in two ways. First of all, the German competition law has recently been amended in a way that, among others, makes it easier to find dominance in network industries and data-driven sectors. 62 Thus, the first step of the BKA’s analysis – the existence of a dominant position – was significantly simplified. And secondly, there is consistent case law of German courts concerning abuse of dominance, consisting in breach of other (non-antitrust) regulation, specifically addressing “ the protection of a contracting party in an unbalanced negotiating position ”. 63 As has already been outlined above, the BKA summarised the case as follows: Using and actually implementing Facebook’s data policy, which allows Facebook to collect user and device-related data from sources outside of Facebook and to merge it 58 Joint Paper Competition Law and Data , 10 May 2016, available at: https://www.bundeskartellamt.de/ SharedDocs/Publikation/DE/Berichte/Big%20Data%20Papier.pdf?__blob=publicationFile&v=2, (accessed September 2021), p. 23. 59 See e.g., CJ EU judgement of 6 December 2012 C-457/10 AstraZeneca v. Commission , ECLI:EU:C:2012:770. In detail, see SCHNEIDER, G. ( op. cit. ), p. 221. 60 As summarised in OHLHAUSEN, M. K., OKULIAR, A. P. Competition, Consumer Protection, and the Right [Approach] to Privacy. Antitrust Law Journal , 2015 (1), p. 152: “ the application of competition law is appropriate only where the potential harm is grounded in the actual or potential diminution of economic efficiency. If there is likely no efficiency loss because of the conduct or transaction, another legal avenue for enforcement is more appropriate and efficient ”. 61 GCR. German Court Sends Facebook Questions to ECJ. Global Competition Review , 24 March 2021, available at: https://globalcompetitionreview.com/digital-markets/german-court-sends-facebook-questions-ecj?utm_source=U K%2Bwarns%2Bof%2Banother%2Bmerger%2Bblock&utm_medium=email&utm_campaign=GCR%2BAlerts (accessed 1 September 2021). 62 In detail, see e.g. LORENZO-REGO, I. ( op. cit. ), p. 103. 63 BECHER, C. ( op. cit. ), p. 118.

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