The Higher Regional Court (OLG) of Düsseldorf has referred questions to the Court of Justice of the European Union (CJEU) in Luxembourg in the dispute between the Federal Cartel Office (FCO) and Facebook over the collection and use of certain user data.

The FCO had argued that the way in which Facebook collected, assigned and merged user data to Facebook user accounts via third-party sources was an abuse of a dominant position in the social networking market because this behaviour was in violation of the GDPR. The FCO decided that Facebook-owned services like WhatsApp and Instagram, when collecting user data outside of the Facebook website, should only assign the data to Facebook user accounts if the users gave voluntary consent. It also decided that Facebook should only assign data collected from third party websites to a Facebook user account if the users gave voluntary consent.

According to the OLG Düsseldorf, the question of whether Facebook is abusing its position in the social networking market because it allegedly collects and uses data of its users in violation of the GDPR cannot be decided without referring the matter to the CJEU. The case, thus, continues.

A separate reasoning of possible abuse by the Federal Supreme Court (BGH) was rejected. The BGH had argued that it was abusive that Facebook did not allow its users to choose between collecting smaller or larger amounts of data ("imposed service extension"). However on appeal, the OLG Düsseldorf held that this is an allegation of a completely different violation of antitrust law and the BGH was not entitled to change the reasoning of the FCO’s prohibition decision.

Frontier Economics advised Facebook on its appeal to the OLG Düsseldorf.

Frontier Economics regularly advises on competition economics issues in digital platform markets. For more information, please contact us on media@frontier-economics.com or at  +44 (0) 20 7031 7000.