TY - JOUR
AU - Mackenrodt, Mark-Oliver
AB - Abstract The relationship between competition law and data protection law has been a highly controversial issue following the German Competition Authority’s (Bundeskartellamt, hereinafter ‘Competition Authority’) decision with regard to Facebook’s data processing policy. The Competition Authority’s theory of harm was centered around an exploitative abuse of market power through the imposition of a data processing policy which is in conflict with the data protection rules. In the interim court proceedings, the OLG Düsseldorf criticized the Competition Authority’s decision. The German Federal Supreme Court (Bundesgerichtshof, hereinafter ‘Federal Supreme Court’) upheld the Competition Authority’s decision. However, the Federal Supreme Court did not derive the exploitative abuse primarily from a mere violation of data protection law. Instead, the Court referred to the users’ lack of freedom of choice. The Court developed a modified theory of harm by identifying elements of an exploitative abuse but also of an exclusionary abuse. The Court’s line of argument is more competition-oriented and accounts for the particular economic features of multi-sided markets. In this line of reasoning, an actual violation of the data protection rules is not a necessary prerequisite for finding a violation of competition law. I. Introduction The Federal Supreme Court1 – in a preliminary ruling from June 2020 – confirmed the decision of the Competition Authority against Facebook. The Competition Authority2 had found in February 2019 that Facebook’s data processing policy with regard to certain user data that were collected outside the social network constitutes an abuse of market power. Therefore, Facebook was ordered to no longer carry out this data processing without the users’ consent. With its unusually detailed interim decision, the Federal Supreme Court overturned an earlier interim decision by the Düsseldorf Higher Regional Court (OLG Düsseldorf) from August 2019.3 The OLG Düsseldorf had – in contrast to the Federal Supreme Court – expressed serious doubts with regard to the decision of the Competition Authority and had ordered a suspensive effect according to Sec. 67 III (2) Act against Restraints of Competition (Gesetz gegen Wettbewerbsbeschränkungen, hereinafter, ‘Act against Restraints of Competition’). The Facebook case is based on the German competition law provision of Sec. 19 I Act against Restraints of Competition which prohibits an abuse of market power. The case raises fundamental questions about the role of competition law in the digital economy and about the relationship between competition law and data protection law. The Federal Supreme Court, while affirming the Competition Authority’s decision, modified the Competition Authority’s theory of harm and addressed several points of criticism which had been uttered by the OLG Düsseldorf and in parts of the literature. In particular, the Federal Supreme Court provided guidance on the conditions under which non-competition law norms – for example data protection law and fundamental rights – can be taken into account in a competition law assessment. Also, the decision contains important findings on the controversial and highly practice-relevant question of which causation requirements apply in the case of an abuse of market power. This question is of general importance for determining whether an imposition of invalid or unfair general terms and conditions can be assessed as an exploitative abuse of market power. In terms of economics the case highlights the particular economic features of multi-sided platform markets. II. ‘Off-Facebook’ data as object of the decision and the Digital Markets Act The Competition Authority has imposed restrictions on Facebook with regard to the processing and combination of certain device and user-related data. The decision does not apply to data that Facebook collects about its users while they actually use the social network as such (so-called ‘on-Facebook’ data). Rather, the prohibition relates to the handling of user and device-related data from third-party sources (so-called ‘off-Facebook’ data). The category of ‘off-Facebook’ data includes data which are collected when a user is not using the social network Facebook itself but other services which belong to Facebook like Instagram and WhatsApp. In addition, ‘off-Facebook’ data refers to data which are collected while the user uses websites or apps of third parties and which are later obtained by Facebook. For example, such third-party websites might be connected with Facebook through analytical tools.4 For users, the collection of ‘off-Facebook’ data is in some cases hardly recognizable. As part of its business model, Facebook combines the ‘off-Facebook’ data with the ‘on-Facebook’ data and uses them as a basis for personalizing advertisements and for marketing advertising space. The revenues from the online advertising markets from enterprises and website owners are a source of finance for the social network. The distinction between ‘off-Facebook’ data and ‘on-Facebook’ data lies at the base of the decision and of the theory of harm in the German Facebook case. In a press release, the Competition Authority qualified its decision as ‘interne Entflechtung’5 (internal disentanglement). In as far as ‘off-Facebook’ data have their origin in the use of the services of Instagram and WhatsApp, the case bears a similarity to the case against Facebook in the United States. Facebook acquired Instagram in 2012 and WhatsApp in 2014. In December 2020 in the United States, the Federal Trade Commission (FTC)6 filed a case against Facebook which among other things calls for a divestiture of assets like Instagram and WhatsApp. The case asserts that Facebook’s purchase of Instagram in 2012 and of WhatsApp in 2014 constituted anti-competitive acquisitions aimed at eliminating a potential competitive threat to Facebook and at making it more difficult for another personal social networking competitor to gain scale. Quite similarly, it is argued in the German Facebook case that the combination of data sets from outside the social network with data gathered on Facebook constitutes a restraint of potential competition by competing social networks (and, in addition, an exploitative abuse vis-à-vis users).7 In the German Facebook case, the distinction between ‘off-Facebook’ and ‘on-Facebook’ data is supported by value judgements which the legislator has expressed in the data protection rules and in other legal regimes which relate to the digital economy.8 As to the legal consequences, the Competition Authority’s decision (as confirmed by the Federal Supreme Court with a more differentiated line of argument) prohibits Facebook from making the use of the social network dependent on the users’ acceptance of contractual conditions that allow the processing of their ‘off-Facebook’ data and its combination with their ‘on-Facebook’ data. It also prohibits the de facto implementation of such a policy. Facebook may process ‘off-Facebook’ data only if users have given valid consent to do so. This requires that Facebook must offer users a genuine choice between a personalization of the user experience which is based only on ‘on-Facebook’ data and a more intensive personalization which is also based on the processing of ‘off-Facebook’ data. It is interesting to note that the fact pattern and the legal consequence of the Facebook case are mirrored in the Digital Markets Act, which was published on 15 December 2020. The Digital Markets Act imposes several obligations for certain gatekeepers when they provide certain core platform services. Article 5(a) Digital Markets Act (draft)9 obliges gatekeepers to refrain from combining personal data sourced from these core platform services with personal data from other services which are offered by the same gatekeeper or with personal data from third-party services. However, the Digital Markets Act also states that such a data processing policy is admissible if the user has been presented with a specific choice and if the user has provided valid consent in the sense of the General Data Protection Regulation (GDPR). The data processing policy described in this article is quite similar to the Competition Authority’s distinction between ‘off-Facebook’ data and ‘off-Facebook’ data. Also, and again quite similar to Art. 5 Digital Markets Act (draft), the Competition Authority held that a prerequisite for the admissibility of such a data processing policy would be that users are given a genuine choice and have given their consent in the sense of the GDPR. III. Market definition in multi-sided markets Facebook has market power in the relevant market for social networks.10 This assessment is based in particular on the economic characteristics of the social network as a multi-sided platform market. Multi-sided markets are characterized by the fact that the platform as an intermediary maintains relationships with different groups of market participants and usually enables an interaction between the different user groups, through which network effects are generated.11 In a social network, users form one market side and advertisers constitute another market side. Facebook enables advertisers to place their (often personalized) advertisements (against payment) and enables users to perceive these ads and interact with each other, for example if a user clicks on the ad.12 According to Sec. 18 IIa Act against Restraints of Competition, assuming the existence of a market is not precluded by the mere fact that the users of the social network on one market side do not make a monetary payment. However, assuming a market relationship requires that the platform provider at least indirectly aims for a fee or pursues a profit-making purpose.13 In the case of a social network as a two-sided market, the use of the social aspect is free of charge. However, the business purpose of the platform can be inferred from the fact that Facebook added a market side of online advertising and the proceeds from this market side are used to fund the platform.14 These two sides of the social network are to be classified as two separate markets and not as a single uniform market.15 This can easily be inferred from the fact that the demand of the advertiser user group towards Facebook is fundamentally different from the demand with which Facebook users approach Facebook.16 Accordingly, the two user groups of the platform are distinct and not in the same market. Treating the different market sides of a social network as two separate markets is in line with the fact that a social network is to be classified as an attention platform where in general distinct markets are defined. On such attention platforms, the platform sells advertising space to advertisers in order to finance the other market side, where a different product (social network services) is offered for free to users. By contrast, drawing on the economic literature, the Competition Authority17 would, at the outset, treat a transaction or matching platform where a product is sold between the user groups as one unitary market if the two user groups demand a similar service of intermediation from the platform. However, for the Competition Authority, this distinction between transaction platforms and attention platforms is only the first step in the analysis and would be followed by an analysis of the substitutability from the perspective of the users.18 The market for social networks is distinct from the market for professional online networks and also from the market of messaging services.19 With regard to both there is no functional interchangeability from the perspective of users. A worldwide market for attention is shortly discussed but rejected by the Federal Supreme Court.20 IV. Market power of multi-sided market platforms Facebook’s market power is demonstrated by its market share of over 90%21 with regard to daily usage. The market power is based on several factors that are particularly relevant in multi-sided markets. Most noteworthy are the network effects that work in favor of Facebook and the high costs associated with changing a social network (so-called ‘lock-in effects’). In addition, Facebook has outstanding access to user data. These factors are by law to be taken into account in determining market power according to Sec. 18 IIIa Act against Restraints of Competition.22 Market entry barriers already exist due to direct network effects.23 They arise from the fact that the attractiveness of a social network increases with the number of users. Users who consider switching to an alternative smaller social network would have to accept disadvantages in their contact possibilities. This leads to a lock-in effect which further increases the market power.24 In addition, indirect network effects reinforce Facebook’s market power in the market for social networks. Indirect network effects25 exist since a high number of users and the extensive access by Facebook to user data strengthen Facebook’s position in the online advertising market.26 In turn, increased financing through higher advertising revenues fortifies the company’s position in the market for social networks. Therefore, Facebook has an incentive to use its market power in the social networking market to further increase its access to user data.27 The indirect network effects on a social network can be qualified as asymmetric network effects since, conversely, the social network does not necessarily become more attractive to users if they are exposed to more advertising. If the social network is perceived as less attractive by users due to a high amount of advertising, network effects can be negative. V. Theory of harm The general terms and conditions of Facebook provided for a data processing policy which involved the combination of ‘off-Facebook’ data with personal data resulting from the use of the social network and the processing of the combined data. Facebook made the use of the social network dependent on its own authority to pursue such a data processing policy. The Federal Supreme Court has ‘no serious doubts’ that without valid consent from users this constitutes an abuse of dominance.28 In its competitive analysis, the Federal Supreme Court concluded that Facebook’s data processing policy leads to negative competitive effects in two respects:29 In the vertical relationship to users, the Court found that there is an exploitative abuse.30 In addition, in the horizontal dimension, the Court identified a restraint of competition with regard to actual or potential competitors on the market for social networks and on the market for online advertising.31 By contrast, the OLG Düsseldorf had expressed ‘serious doubts’ with regard to both an exploitative abuse and an exclusionary abuse.32 At the outset of the proceedings, the Competition Authority had – as later confirmed by the Federal Supreme Court – found both forms of abuse. But the Competition Authority discussed the horizontal dimension of the abuse only briefly on a few pages within the more than 300-page decision.33 Instead, the Competition Authority’s line of argument mainly focused on the finding that Facebook’s general terms and conditions were in conflict with data protection law34 and that the unilateral imposition of these contractual conditions on users constituted an abuse of market power in the form of a qualitative35 exploitative abuse.36 Against this background, the interim decision of the Federal Supreme Court contains a modification of the Competition Authority’s theory of harm. 1. Vertical exploitative abuse in relation to users When discussing an exploitative abuse in the vertical relationship, the Federal Supreme Court primarily focuses on the lack of freedom of choice for users. Based on the processing of ‘off-Facebook’ data, the social network offers its users a ‘more intensive personalization of the user experience’.37 The use of the social network is made dependent on the acceptance of the corresponding contractual conditions in their entirety by the users. However, according to the Federal Supreme Court, this means that at least some of the users have an extended service forced upon them, which they actually do not want or for which they would not want to make data available that they disclose outside of Facebook.38 Facebook does not give users a choice whether the personalization of their social network usage should be based on the processing of only their ‘on-Facebook’ data or also of their ‘off-Facebook’ data.39 According to the Court, the acceptance of these terms of use is not based on an autonomous user decision.40 For this theory of harm to be valid, it is irrelevant that the users do not pay a monetary consideration to the social network.41 Rather, the Court points out that the imposition of an extended service goes along with an increased disclosure of personal data on the part of the users and this is considered equivalent to an increased payment. This argument is in line with the character of a social network as a multi-sided market:42 Facebook monetizes the user data on the market side facing the advertisers and in this way finances the network through monetary payments from the advertisers. By contrast, the OLG Dusseldorf had denied the presence of an exploitative abuse through the imposition of the general terms and conditions. The OLG Düsseldorf argued that there was no lack of free choice and that users could make an autonomous decision to simply stay away completely from the social network.43 However, it should be noted that abstaining from consumption is generally not considered an alternative in competition law. 2. Horizontal restraint of competition against competitors In addition, the Federal Supreme Court found that the imposition of Facebook’s data processing policy on users also constitutes a potential restraint of competition in the horizontal relationship to competitors on the market for social networks.44 Social networks generate strong direct network effects since such a network is more attractive for users if they can interact with a higher number of other users.45 By switching to a smaller competing network, a user would initially only benefit from weaker direct network effects. Even though other attributes of a competing network ‒ such as a more restrictive data processing policy ‒ may seem more attractive to certain users, the direct network effects may therefore deter users from switching. This causes a lock-in effect and a substantial barrier to market entry for (potential) competitors.46 The processing of ‘off-Facebook’ data creates additional impediments for (potential) competitors. Facebook’s access to ‘off-Facebook’ data considerably facilitates the financing of the social network through advertising revenues from the neighboring advertising markets,47 in particular through personalized advertising. This increases the barriers to entry in the social networking market to the detriment of potential competitors, who are as a result more likely to be defeated in the acquisition of advertising contracts.48 According to the Federal Supreme Court, the extended data processing practice of Facebook could also inhibit competition in the neighboring market for online advertising.49 With regard to the advertising markets, the Federal Supreme Court – in contrast to the OLG Düsseldorf – does not consider any further findings by the Competition Authority to be necessary, since market dominance and the possible restriction of competition do not necessarily have to exist on the same market.50 VI. The general clause as legal basis of the decision The Federal Supreme Court’s theory of harm supports the finding of an abuse under the German general clause of Sec. 19 Act against Restraints of Competition. The German prohibition of abusive conduct in Sec. 19 Act against Restraints of Competition contains a general clause in Sec. 19 I and several legal examples of potentially forbidden practices in Sec. 19 II. This legislative technique intends to provide guidance and legal certainty but at the same time a sufficient degree of flexibility for capturing new strategies which possibly harm competition. In particular, Sec. 19 II No. 2 contains a legal example for an exploitative abuse. However, the Federal Supreme Court (just like the OLG Düsseldorf and the Competition Authority) based its decision on Sec. 19 I and not on the legal example in Sec. 19 II No. 2. Also, the theory of harm developed by the Federal Supreme Court is based on a combination of negative vertical and horizontal effects. This approach is consistent with the legal structure of Sec. 19. The list of possibly abusive conduct in Sec. 19 II Act against Restraints of Competition is only of exemplary51 character and is not exhaustive.52 Also, the general clause of Sec. 19 I can apply to entrepreneurial strategies which combine elements of several of the legal examples in Sec. 19 II.53 When devising a theory of harm, a court is therefore free to combine arguments from different legal examples. In addition, the legal examples in Sec. 19 II Act against Restraints of Competition do not restrict the application of the general clause to similar or different scenarios.54 Accordingly, the fact that Sec. 19 II No. 2 contains an example of a particular kind of exploitative abuse constitutes no obstacle to finding an exploitative abuse when applying the general clause in Sec. 19 I. Therefore, under Sec. 19 I, the court can use a legal argument which is different from the legal example.55 As one legal standard for assessing an exploitative abuse, the legislative example in Sec. 19 II No. 2 Act against Restraints of Competition requires a comparison with markets where effective competition exists. However, in the present case, which involves a multi-sided platform market, this benchmark is less practicable. A comparable market with effective competition can hardly be identified, as platform markets with strong network effects are typically ‘winner takes most’ markets with a dominant single undertaking. Also, when users chose a social network, they put a strong focus on the strength of the network effects and generally less importance on other attributes. As a general matter competition with regard to general terms and conditions is quite restricted.56 Therefore, it would be difficult to apply Sec. 19 II No. 2 and to determine empirically what kind of general terms and conditions would prevail in a competitive market. Accordingly, in the Facebook case, the general clause in Sec. 19 I Act against Restraints of Competition and not the example in Sec. 19 II No. 2 was chosen as the legal basis. As a consequence, it was not required to show that the unilaterally imposed terms and conditions deviated from those that would most likely have resulted from effective competition.57 The general clause and the legal example both capture quantitative as well as qualitative exploitative abuses. A quantitative exploitative abuse consists in asking excessive prices. By contrast, a qualitative exploitative abuse involves the imposition of disadvantageous terms and conditions that relate to other parameters than price.58 While a legal standard for evaluating a quantitative abuse seems59 easier to administer, the assessment of a qualitative exploitation requires a legal standard which is more normative in character. The legal standard to be applied within the general clause resorts to a possible deviation from concepts of justice and from a balancing of interests which, for example, can be found in normative judgements that the legislator has expressed in other legal norms.60 In its original decision dealing with the data processing policy of Facebook, the Competition Authority’s61 main line of reasoning was focused on an exploitative abuse through an imposition of invalid general terms and conditions on private users. This line of argument was largely rooted in a finding that Facebook used invalid general terms and conditions and violated the GDPR. It is widely accepted that – more generally – an imposition of invalid or disadvantageous contractual conditions can constitute a violation of competition law, even though the legal requirements for such a finding are quite contested.62 The OLG Düsseldorf in its interim decision criticized the Competition Authority’s decision with regard to several legal assessments.63 But the Federal Supreme Court64 held that there are no serious doubts as to the validity of the Competition Authority’s decision. However, as outlined above, the Court65 devised a modified theory of harm in which a possible illegality of the general terms and conditions or an actual violation of the GDPR is no more a necessary condition for finding an abuse.66 Rather, in relation to an exploitative abuse, the Court puts a focus on the freedom of choice of consumers. This is in line with the fact that in a market with effective competition, consumers would have a choice between viable alternatives. Additionally, the Court found that the extensive data processing policy creates an impediment to competition in the horizontal relationship to potential competitors.67 In a modification of the Competition Authority’s line of argument, the Federal Supreme Court’s approach is more competition-oriented and highlights the role of data as a parameter of competition. Also, the Court takes particular account of the economic characteristics of multilateral platform markets and the interaction between the different sides of the market. VII. The causation requirement The legal requirement of causation in abuse cases under Sec. 19 Act against Restraints of Competition is of particular importance for the Facebook case and was highly contested. 1. ‘Causation of effects’ versus ‘causation of conduct’ For the alternative of an exclusionary abuse, it is quite uncontested that under the German law a quite lenient causation requirement applies.68 This weaker causation requirement is referred to as ‘causation of effects’ (‘Ergebniskausalität’) or ‘normative causation’. This requirement is fulfilled if the dominant position has contributed to an amplification of the negative competitive effects of the conduct.69 The prerequisite of a causation of results can also be fulfilled if the conduct itself is also possible for non-dominant companies70 but its effects are aggravated due to the market power. A weaker causation requirement leads to a stricter application of competition law. In case of an exclusionary abuse, a lower threshold for intervention is warranted because protecting the market structure constitutes a particularly important task of competition law. For the alternative of an exploitative abuse, the causation requirement is contested71 under German72 competition law and the application of a stricter causation requirement is discussed.73 This stricter requirement is referred to as ‘causation of conduct’ (‘Verhaltenskausalität’) or ‘strict causation’. Strict causation demands that the conduct in question (i.e. the imposition of the terms and conditions or of the data processing policy or of the extended services in the Federal Supreme Court’s theory of harm) was possible solely because of the dominant position.74 In the Facebook case the conduct in question – depending on the theory of harm – would be the imposition of the terms and conditions or of the data processing policy or of the extended services. This requirement of strict causation would not be met if companies that do not possess market power could also unilaterally impose general terms and conditions with the same content on users. 2. The causation requirement in the Facebook case In the Facebook case and its (interim) legal review by the courts, the causation requirement with regard to the exploitative abuse has been a hotly debated issue. The Competition Authority, when examining an exploitative abuse through the imposition of the data processing policy, required only the less strict causation of results and affirmed its existence in the case at hand.75 Facebook’s dominant position limits the alternatives for users and leads to a widespread dissemination of the terms and conditions.76 By contrast, the OLG Düsseldorf, when it reviewed the Competition Authority’s theory of harm in its interim decision, required that there be strict causation between the dominant position and the conduct.77 The OLG Düsseldorf78 then argued that such a strict causation requirement was not met in the case at hand because users would accept general terms and conditions without reading anyway. Accordingly, the OLG Düsseldorf opined that Facebook’s unilateral imposition of its data processing policy upon users was not an expression of Facebook’s market power. The Federal Supreme Court rejected the OLG Düsseldorf’s quite strict view regarding the causation requirement in this case79 and based its argument on the particular theory of harm that the Federal Supreme Court had devised to assess the case. The Federal Supreme Court only requires the milder normative causation for this specific scenario of a multi-sided market, in which a combination of an exploitative abuse and an exclusionary abuse can be found.80 3. Discussion of the causation requirement in multi-sided markets The Federal Supreme Court’s argument regarding the causation requirement is guided by the specific economic conditions in multi-sided markets and by the need to protect competition in such markets where there is a strong interaction between the different market sides. If there is an exploitative abuse in a one-sided market, the less strict causation requirement (and a stricter application of competition law) is justified in order to protect the market structure. The same rationale applies if in a multi-sided market an exploitative abuse can be found on another market side and if there is a strong interaction between the market sides. At the same time, the general argument against applying the milder causation requirement to an exploitative abuse is of smaller importance in the case at hand. The general concern in a one-sided market scenario is that a milder causation requirement could turn competition law into a general instrument to sanction the use of invalid general terms and conditions by dominant companies.81 This might overload the application of competition law with pursuing non-competition goals. However, the Federal Supreme Court’s very specific line of argument limits such a concern because it refers to the scenario of a multi-sided market where an impediment to competition on another market side and an interaction between the market sides can be found. In the meantime (after the interim decision of the Federal Supreme Court), a legislative change of the causation requirement has been enacted in the course of the tenth amendment of the Act against Restraints of Competition.82 The amendment entered into force on 19 January 2021 and the wording of Sec. 19 was revised. The legislative reasons83 make a reference to the interim Facebook decision of the Federal Supreme Court and support the Court’s line of argument. However, the legal change is not limited to the theory of harm on which the Court based its decision. The legislative reasons explicitly clarify that with the new wording of Sec. 19 Act against Restraints of Competition for all kinds of abuse, only milder causation in the sense of normative causation is required.84 Strict causation is a prerequisite neither in the alternative of an exploitative abuse nor in the case of an exclusionary abuse. VIII. Balancing of interests The German prohibition of an abuse of dominance in Sec. 19 Act against Restraints of Competition requires a balancing of the interests involved.85 This includes the freedom of competition as a fundamental goal of competition law, the right to informational self-determination86 as the constitutional87 basis of data protection law, the economic freedom of the parties involved and the fact that for many users, access to Facebook represents a form of participation in social life and the exchange of opinions protected by fundamental rights. The Federal Supreme Court notes that the economic freedom to design a business model with particular features finds its limits in the legal order in general and, in particular, in the competition law provisions.88 The Court invokes the users’ constitutional right to informational self-determination and notes that its outstanding importance for the communication on the internet requires protection against exploitation of these communication data against an inappropriate disclosure for use by the operator of a social network.89 Due to the indirect third-party effect of fundamental rights, this fundamental right must also be taken into account in the interpretation of the general clause Sec. 19 I Act against Restraints of Competition and of the GDPR.90 The Federal Supreme Court points out that the criteria of Art. 6 GDPR constitutes a specification of the fundamental right of informational self-determination by the legislator, and that in the case at hand these criteria (in particular valid consent and a limitation of purpose of the data collection) are not met.91 IX. The role of data protection in competition law The Federal Supreme Court’s line of argument clarifies the contested role of data protection issues in competition law proceedings. Based on the Court’s theory of harm, a possible violation of the data protection rules is only addressed within the balancing of interests. A possible violation of the GDPR serves as an indication to put weight on the violated interest and is only one among several factors of the weighing of interests. By contrast, the Competition Authority’s line of argument was more strongly centered around and dependent on a possible violation of the GDPR because the Competition Authority examined whether there is an imposition of invalid general terms and conditions. In comparison, the Federal Supreme Court’s line of argument is more competition-oriented. A violation of data protection law is not a necessary prerequisite for finding a violation of competition law.92 On the other hand, a violation of data protection law can be a reason (and possibly a decisive reason) to give lower priority to an interest in the pursuit of which a violation of legal norms has been identified. In this respect a violation of data protection law is treated just like a violation of other legal standards outside of competition law. With this line if argument, the Federal Supreme Court refutes the criticism that the Competition Authority stepped outside its competence by examining the data processing policy. The Federal Supreme Court explicitly notes that it has no doubts as to the competence of the Competition Authority.93 The Competition Authority’s competence is not excluded simply because aspects from other areas of law, such as data protection law, are and need to be taken into account in a decision. X. Conclusion The prerequisites for qualifying the data processing policy of a dominant undertaking as an abuse of market power under Sec. 19 Act against Restraints of Competition are strongly disputed. The Competition Authority’s decision was largely focused on an exploitative abuse through the imposition of general terms and conditions which are in violation of the GDPR. The Federal Supreme Court in its interim decision upheld the Competition Authority’s decision. However, the Court devised a modified theory of harm which identified elements of an exploitative abuse in the vertical dimension and also an impediment to competition in the horizontal relationship. The Court’s line of argument takes the particular economic characteristics of multi-sided platform markets more closely into account. Regarding the contested causation requirement in the German prohibition of abuse provision, the Court’s reasoning also better takes into consideration the interaction between the different sides of the market. The Court’s decision is therefore in several aspects more competition-oriented than that of the Competition Authority and of the OLG Düsseldorf and convincingly treats data as a parameter of competition. In the Federal Supreme Court’s reasoning, finding a violation of data protection rules is not a necessary prerequisite for finding a violation of competition law. After the interim decision of the Federal Supreme Court, the main proceedings are to be continued with the OLG Düsseldorf. However, in December 2020, upon a second application by Facebook, the OLG Düsseldorf issued a second interim decision to again restore the suspensive effect of Facebook’s appeal against the decision of the Competition Authority. This second interim decision of the OLG Düsseldorf is again on appeal with the Federal Supreme Court.94 In addition, in March 2021 the OLG Düsseldorf95 has made a referral to the European Court of Justice.96 Finally, regarding the future legal development, the debate on the draft Digital Markets Act needs to be observed. Article 5 Digital Markets Act (draft) forbids gatekeepers – in a particular scenario – from having a data processing policy which combines personal data from different services unless users are offered genuine choice and unless users have given valid consent in the sense of the GDPR. Footnotes 1 German Federal Supreme Court, 23 June 2020, KVR 69/19 – Facebook (interim decision). See the text of the decision in this issue of GRUR International at doi: 10.1093/grurint/ikab046. See for example Michael Bergmann, ‘Anmerkung zu BGH BB 2020, 2061’ [2020] WuW 539; Reinhard Ellger, ‘Konditionenmissbrauch nach § 19 GWB durch Datenschutzverstoß – Der Facebook-Fall des Bundeskartellamtes’ [2019] WuW 446; Florian C Haus and Carlos Deniz Cesarano, ‘Ausbeutungs- und Behinderungsmissbrauch in zweiseitigen Märkten’ [2020] NZKart 521; Oliver Lepsius, ‘Der Facebook-Beschluss des BGH aus der Sicht des Verfassungsrechts’ [2020] WuW 566; Mark-Oliver Mackenrodt and Klaus Wiedemann, ‘Zur kartellrechtlichen Bewertung der Datenverarbeitung durch Facebook und ihrer normativen Kohärenz mit dem Datenschutzrecht und dem Datenschuldrecht’ [2021] ZUM 89; Klaus Wiedemann, ‘A matter of choice: the German Federal Supreme Court’s interim decision in the abuse-of-dominance proceedings Bundeskartellamt v. Facebook case KVR 69/19’ (2020) 51 IIC 1168. 2 German Competition Authority, 6 February 2019, B6-22/16 – Facebook. See for example Jochen Mohr, ‘Kartellrechtlicher Konditionenmissbrauch durch datenschutzwidrige Allgemeine Geschäftsbedingungen’ [2019] EuZW 265; Marco Botta and Wiedemann Klaus, ‘The Interaction of EU Competition, Consumer, and Data Protection Law in the Digital Economy: The Regulatory Dilemma in the Facebook Odyssey’ (2019) 64 The Antitrust Bulletin 428; Ellger (n 1) 446; Marco Botta and Klaus Wiedemann, ‘Exploitative Conducts in Digital Markets: Time for a Discussion after the Facebook Decision’ (2019) 10 Journal of European Competition Law & Practice 465; Kyiakos Fountoukakos and others, ‘The German FCO’s decision against Facebook: a first step towards the creation of digital house rules?’ [2019] Competition Law Journal 55; Sebastian Louven, ‘Kartellrecht als Hebel für die Durchsetzung des Datenschutzrechts?’ [2019] CR 352; Rupprecht Podszun and Michael de Tomo, ‘Die Durchsetzung des Datenschutzes durch Verbraucherrecht, Lauterkeitsrecht und Kartellrecht’ [2016] NJW 2987, 2993 ff; Andrea Pomana and Maren Schneider, ‘Wettbewerbsrecht und Datenschutz’ [2018] BB 965; Sebastian Telle, ‘Konditionenmissbrauch durch Ausplünderung von Plattform-Nutzerdaten’ [2016] WRP 814. 3 Higher Regional Court Düsseldorf, 26 August 2019, VI-Kart 1/19 (V), BeckRS 18837 – Facebook (interim decision). See for example Till Steinvorth, ‘Facebook I’ [2019] WuW 528 (note); Michael Bergmann and Johannes Modest, ‘Vom Umschreiben der Geschichtsbücher – Anmerkungen zu OLG Düsseldorf in Sachen Facebook’ [2019] NZKart 531; Melissa Dowse and Hermann Dück, ‘Zwangseinwilligung zur Datenverarbeitung’ [2020] NZKart 80; Reinhard Ellger, ‘Facebook und das Kartellrecht – ein Drama in drei Akten’ [2019] WuW 493, 493; Florian C Haus and Carlos Deniz Cesarano, ‘Mehr-Daten für Facebook’ [2019] NZKart 637; Thomas Thiede, ‘Wettbewerbsrecht: OLG Düsseldorf setzt BKartA-Anordnung gegen Facebook aus’ [2019] EuZW 779. 4 See German Federal Supreme Court, 23 June 2020, KVR 69/19 – Facebook (interim decision), paras 3 f. 5 German Competition Authority, 7 February 2019, press release on case B6-22/16 – Facebook. 6 FTC, 9 December 2020, press release – Facebook. 7 See German Federal Supreme Court, 23 June 2020, KVR 69/19 – Facebook (interim decision), para 64. 8 For this argument see Mackenrodt and Wiedemann (n 1) 89. 9 Proposal for a regulation of the European Parliament and of the Council on contestable and fair markets in the digital sector (Digital Markets Act), COM(2020) 842 final, 15 December 2020. 10 The market definition and the existence of market power are quite uncontested in this case. For more details see German Competition Authority, 6 February 2019, B6-22/16 – Facebook, paras 212 ff, 374 ff; German Federal Supreme Court, 23 June 2020, KVR 69/19 – Facebook (interim decision), paras 21 ff, 36. The Federal Supreme Court defines a ‘national market for social networks for private users’, see German Federal Supreme Court, 23 June 2020, KVR 69/19 – Facebook (interim decision), para 14. 11 The legislative reasons with regard to s 18 IIa Act against Restraints of Competition point out that the term ‘platform’ is not used uniformly in the legal literature, see Federal Government, legislative reasons, 9th amendment to the GWB, BT-Drs. 18/10207, 2016, 47. Different definitions of the concept of multi-sided markets, especially in the economic literature are discussed at the Competition Authority, ‘Arbeitspapier Marktmacht von Plattformen und Netzwerken’ (June 2016) 8 ff <https://www.bundeskartellamt.de/SharedDocs/Publikation/DE/Berichte/Think-Tank-Bericht.pdf%3F__blob%3DpublicationFile%26v%3D2> accessed 4 April 2021; see also Andreas Fuchs, ‘§ 19 recital 70’ in Ullrich Immenga and Ernst-Joachim Mestmäcker (eds), Wettbewerbsrecht (6th edn, CH Beck 2020). 12 The user groups on the different market sides of the social network are described in more detail at German Competition Authority, 6 February 2019, B6-22/16 – Facebook, paras 223 ff. 13 Federal Government, legislative reasons, 9th amendment to the Act against Restraints of Competition, BT-Drs. 18/10207, 2016, 48; Andreas Fuchs, ‘§ 19 recital 35 ff’ in Immenga and Mestmäcker (n 11). 14 Jochen Mohr, ‘Konditionenmissbrauch durch soziale Netzwerke: Facebook’ [2020] WuW 506; Andreas Fuchs, ‘§ 19 recital 36a’ in Immenga and Mestmäcker (n 11); BKartA (n 11) 41 ff; German Competition Authority, 6 February 2019, B6-22/16 – Facebook, paras 241 ff; German Federal Supreme Court, 23 June 2020, KVR 69/19 – Facebook (interim decision), para 28. 15 German Competition Authority, 6 February 2019, B6-22/16 – Facebook, para 235; German Federal Supreme Court, 23 June 2020, KVR 69/19 – Facebook (interim decision), para 30. 16 For a discussion of when the two market sides can be defined as separate markets or as a joint market, see for example Mark-Oliver Mackenrodt, ‘Germany’ in Daniel Mandrescu (ed), EU Competition Law and the Digital Economy: Protecting Free and Fair Competition in an Age of Technological (R)evolution, (eleven Publications 2020) 251, 258. 17 BKartA (n 11) 28 ff. 18 ibid 31. By contrast, the US Supreme Court in the Amex case (US Supreme Court, Ohio v American Express Co. 138 S. Ct. 2274 (2018) = (2019) 50 IIC 915) seems to be stricter in treating the different sides of a transaction platform as a single uniform market. See for example Geoffrey A Manne, ‘In defence of the Supreme Court’s “single market” definition in Ohio v American Express’ (2019) 7 Journal of Antitrust Enforcement 104-117. This quite schematic approach by the US Supreme Court has been criticized in the literature. See for example: Francisco Beneke, ‘Ohio v. American Express and the Balancing of Consumer Welfare Effects on Multiple Sides of a Platform’ (2019) 50 IIC 917; Vikas Kathuria, ‘Platform competition and market definition in the US Amex case: lessons for economics and law’ (2019) 15 European Competition Journal 254; Tim Wu, ‘The American Express opinion, the rule of reason, and tech platforms’ (2019) 7 Journal of Antitrust Enforcement 117-127. 19 German Federal Supreme Court, 23 June 2020, KVR 69/19 – Facebook (interim decision), para 25; German Competition Authority, 6 February 2019, B6-22/16 – Facebook, paras 264 ff. 20 German Federal Supreme Court, 23 June 2020, KVR 69/19 – Facebook (interim decision), paras 20 ff. 21 ibid paras 38 f; German Competition Authority, 6 February 2019, B6-22/16 – Facebook, para 392. 22 An application of this provision to the case can be found at German Competition Authority, 6 February 2019, B6-22/16 – Facebook, paras 422 ff. 23 ibid paras 422 ff; German Federal Supreme Court, 23 June 2020, KVR 69/19 – Facebook (interim decision), para 44. 24 German Federal Supreme Court, 23 June 2020, KVR 69/19 – Facebook (interim decision), para 44. 25 See for example Mohr (n 14) 506. 26 German Federal Supreme Court, 23 June 2020, KVR 69/19 – Facebook (interim decision), para 43; see also German Competition Authority, 6 February 2019, B6-22/16 – Facebook, paras 411 ff. 27 German Federal Supreme Court, 23 June 2020, KVR 69/19 – Facebook (interim decision), para 43. 28 ibid para 53. 29 ibid para 64. 30 ibid paras 66 ff. 31 ibid paras 92 ff. 32 Higher Regional Court Düsseldorf, 26 August 2019, VI-Kart 1/19 (V), BeckRS 18837 – Facebook (interim decision), para 18. For a critical appraisal of this decision see already Mohr (n 14) 506, 508; Haus and Deniz Cesarano (n 3) 637. 33 German Competition Authority, 6 February 2019, B6-22/16 – Facebook, paras 885 ff. 34 ibid paras 573 ff. 35 By contrast, the term ‘quantitative exploitative abuse’ is used to relate to an imposition of high prices. 36 German Competition Authority, 6 February 2019, B6-22/16 – Facebook, paras 525 ff. 37 German Federal Supreme Court, 23 June 2020, KVR 69/19 – Facebook (interim decision), para 58. 38 ibid para 58. 39 ibid para 58. 40 ibid paras 58, 100; see also Haus and Deniz Cesarano (n 1) 521, 523. This argument was already uttered in a critical review of the decision of the Higher Regional Court Düsseldorf by Haus and Deniz Cesarano (n 3) 637, 642. 41 German Federal Supreme Court, 23 June 2020, KVR 69/19 – Facebook (interim decision), paras 59 ff. 42 See also Haus and Deniz Cesarano (n 1) 521, 523; Mohr (n 2) 265, 268. 43 Higher Regional Court Düsseldorf, 26 August 2019, VI-Kart 1/19 (V), BeckRS 18837 – Facebook (interim decision), para 28. A critical stance to this argument is taken by Mohr (n 14) 506, 508; Ellger (n 3) 493, 493. 44 German Federal Supreme Court, 23 June 2020, KVR 69/19 – Facebook (interim decision), paras 92 ff. 45 Barriers to market entry as a result of lock-in effects based on direct identity-based network effects have already been identified by the Federal Supreme Court in the context of determining market power, German Federal Supreme Court, 23 June 2020, KVR 69/19 – Facebook (interim decision), para 44. 46 ibid para 44. 47 Haus and Deniz Cesarano (n 3) 637, 644. 48 German Federal Supreme Court, 23 June 2020, KVR 69/19 – Facebook (interim decision), para 94. 49 ibid para 96; see also Haus and Deniz Cesarano (n 3) 637, 644. 50 German Federal Supreme Court, 4 November 2003, KZR 38/02 – Strom und Telefon II, at 8; German Federal Supreme Court, 23 June 2020, KVR 69/19 – Facebook (interim decision), para 94. 51 This shows already in the wording of the law in s 19 II Act against Restraints of Competition, which ‘in particular’ refers to the types of conduct listed there as cases of abuse. 52 Ullrich Loewenheim, ‘§ 19 recital 12’ in Ullrich Loewenheim and others (eds), Kartellrecht (4th edn, CH Beck 2020); Andreas Fuchs, ‘§ 19 recital 212c’ in Immenga and Mestmäcker (n 11). 53 Andreas Fuchs, ‘§ 19 recital 214c’ in Immenga and Mestmäcker (n 11). 54 Christian Karbaum, ‘Kartellrechtliche Missbrauchsaufsicht’ [2019] DB 1072, 1076. 55 Andreas Fuchs, ‘§ 19 recital 212c’ in Immenga and Mestmäcker (n 11); Ullrich Loewenheim, ‘§ 19 recital 69’ in Loewenheim and others (n 52); Ellger (n 1) 446, 450 f. 56 Andreas Fuchs. ‘§ 19 recital 72d’ in Immenga and Mestmäcker (n 11). 57 German Federal Supreme Court, 23 June 2020, KVR 69/19 – Facebook (interim decision), paras 81 ff, pointing out that such evidence is difficult to provide in the case of a high degree of market dominance, which is widespread in network markets. 58 See also Mohr (n 14) 506, 507. 59 However, an exploitation through high prices involves the challenging task of determining adequate market prices. 60 Ellger (n 1) 446, 450. Andreas Fuchs, ‘§ 19 recital 211c’ in Immenga and Mestmäcker (n 11). Fuchs points out that the normative evaluations by the lawmaker serve as a reference model for an idealized market equilibrium which would arise in a scenario with effective competition. Mohr (n 14) 506, 508 remarks that a violation of data protection rules provides a normative indication that there is a violation against the user’s right of self-determination. Mackenrodt and Wiedemann (n 1) 89, 96 ff, note that the Federal Supreme Court’s reasoning is in line with normative decisions which the legislator has made with regard to digital markets in other fields of law like digital contract law and data protection law. 61 German Competition Authority, 6 February 2019, B6-22/16 – Facebook, paras 169 ff. 62 A general discussion of exploitative abuses through the imposition of disadvantageous contractual conditions can be found at Tobias Lettl, ‘Art. 102 AEUV, § 19 GWB und Rechtsbruch, insbesondere Verstöße gegen AGB-Recht und Datenschutzrecht’ [2020] WuW 1391; Tobias Lettl, ‘Missbräuchliche Ausnutzung einer marktbeherrschenden Stellung nach Art. 102 AEUV, § 19 GWB und Rechtsbruch’ [2016] WuW 214. 63 Higher Regional Court Düsseldorf, 26 August 2019, VI-Kart 1/19 (V), Beck-RS 2019, 188837 – Facebook (interim decision). 64 German Federal Supreme Court, 23 June 2020, KVR 69/19 – Facebook (interim decision). 65 ibid para 99. 66 But a possible illegality of the general terms and conditions and a possible breach of the GDPR are still a relevant factor in the decision, see below. 67 German Federal Supreme Court, 23 June 2020, KVR 69/19 – Facebook (interim decision), paras 64, 92 ff. 68 German Federal Supreme Court, 4 November 2003, KZR 38/02 – Strom und Telefon II, at 8; German Federal Supreme Court, 23 June 2020, KVR 69/19 – Facebook (interim decision), para 78; Ellger (n 1) 446, 453. 69 Andreas Fuchs, ‘§ 19 recital 215’ in Immenga and Mestmäcker (n 11); Haus and Deniz Cesarano (n 3) 637, 641; Haus and Deniz Cesarano (n 1) 521, 523. 70 German Federal Supreme Court, 23 June 2020, KVR 69/19 – Facebook (interim decision), para 71. 71 An overview of the debate is provided by Andreas Fuchs, ‘§ 19 recital 211 ff’ in Immenga and Mestmäcker (n 11); German Competition Authority, 6 February 2019, B6-22/16 – Facebook, paras 871 ff; Higher Regional Court Düsseldorf, 26 August 2019, VI-Kart 1/19 (V), BeckRS 18837 – Facebook (interim decision), paras 45 ff. See also Mackenrodt and Wiedemann (n 1) 89, 94. 72 For a discussion of the causation requirement in art 102 TFEU, see Andreas Fuchs, ‘art 102 recitals 135 ff’ in Immenga and Mestmäcker (n 11). 73 The requirement of strict causation for cases of exploitative conduct is, for example, advocated by Melissa Dowse and Hermann Dück, ‘Zwangseinwilligung zur Datenverarbeitung’ [2020] NZKart 80, 81; Christian Karbaum, ‘Kartellrechtliche Missbrauchsaufsicht’ [2019] DB 1072, 1077; Jens-Uwe Franck, ‘Eine Frage des Zusammenhangs: Marktbeherrschungsmissbrauch durch rechtswidrige Konditionen’ [2016] ZWeR 137, 152; Torsten Körber, ‘„Ist Wissen Markmacht?“Überlegungen zum Verhältnis von Datenschutz, „Datenmacht“und Kartellrecht – Teil 2’ [2016] NZKart 348, 355; Stefan Thomas, ‘Wettbewerb in der digital economy: Verbraucherschutz durch AGB-Kontrolle im Kartellrecht?’ [2017] NZKart 92, 95; Ellger (n 3) 493, 493. A contribution to the causation is regarded as sufficient by Michael Bergmann and Johannes Modest, ‘Vom Umschreiben der Geschichtsbücher – Anmerkungen zu OLG Düsseldorf in Sachen Facebook’ [2019] NZKart 531, 534; Ellger (n 1) 446, 452. 74 Andreas Fuchs, ‘§ 19 recital 215’ in Immenga and Mestmäcker (n 11); German Competition Authority, 6 February 2019, B6-22/16 – Facebook, para 873; Haus and Deniz Cesarano (n 1) 521, 523; Haus and Deniz Cesarano (n 3) 637, 641. 75 German Competition Authority, 6 February 2019, B6-22/16 – Facebook, paras 873, 876 ff. The view that normative causation is sufficient is, for example, supported by Andreas Fuchs, ‘§ 19 recital 215a’ in Immenga and Mestmäcker (n 11); Mohr (n 2) 265, 273. 76 Andreas Fuchs, ‘§ 19 recital 215’ in Immenga and Mestmäcker (n 11); German Competition Authority, 6 February 2019, B6-22/16 – Facebook, para 883. 77 Higher Regional Court Düsseldorf, 26 August 2019, VI-Kart 1/19 (V), Beck-RS 2019, 188837 – Facebook (interim decision), paras 64 ff. 78 Higher Regional Court Düsseldorf, 26 August 2019, VI-Kart 1/19 (V), BeckRS 18837 – Facebook (interim decision), para 77. A critical stance towards the OLG’s argument is taken by Mohr (n 14) 506, 508. 79 German Federal Supreme Court, 23 June 2020, KVR 69/19 – Facebook (interim decision), para 77. 80 ibid para 72. This line of argument was used even prior to the decision of the Federal Supreme Court by Andreas Fuchs, ‘§ 19 recital 215’ in Immenga and Mestmäcker (n 11); quite similarly Eckart Bueren, ‘Kartellrecht und Datenschutzrecht – zugleich ein Beitrag zur 10. GWB-Novelle und zum Facebook-Verfahren’ [2019] ZWeR 403, 446. 81 See for example Ellger (n 3) 493, 493; Torsten Körber, ‘Die Facebook-Entscheidung des Bundeskartellamtes – Machtmissbrauch durch Verletzung des Datenschutzrechts?’ [2019] NZKart 187, 193 ff; Christian Karbaum, ‘Kartellrechtliche Missbrauchsaufsicht’ [2019] DB 1072, 1076; Andrea Lohse, ‘Facebook und die Verarbeitung der off-Facebook-Daten nach der DSGVO: Ein Fall für die kartellrechtliche Missbrauchsaufsicht?’ [2020] NZKart 292; Stefan Thomas, ‘Wettbewerb in der digital economy: Verbraucherschutz durch AGB-Kontrolle im Kartellrecht?’ [2017] NZKart 92, 98. This criticism is countered by Mohr (n 2) 265, 273. 82 The 10th amendment of the GWB entered into force on 19 January 2021. The changes can be found at GWB-Digitalisierungsgesetz, BGBl. 2021, Teil I, Nr. 1, 18 January 2021, 2. See also: Federal Government, legislative reasons, GWB-Digitalisierungsgesetz, BT-Drucks. 19/23492, 19 October 2020, 80 ff. 83 Federal Government, legislative reasons, GWB-Digitalisierungsgesetz, BT-Drucks. 19/23492, 19 October 2020, 70 f. 84 ibid 71. 85 German Federal Supreme Court, 23 June 2020, KVR 69/19 – Facebook (interim decision), paras 97 ff. 86 art 2(1) in conjunction with art 1(1) GG. This fundamental right was developed by the German Constitutional Court (Bundesverfassungsgericht, BVerfG) in the so-called census judgment (Volkszählungsurteil), German Constitutional Court, [1984] NJW 419. On the relationship between German fundamental rights and Union law or Union fundamental rights, see German Constitutional Court, [2020] NJW 300 – Recht auf Vergessen I und German Constitutional Court, [2020] NJW 314 – Recht auf Vergessen II. 87 For an assessment of the German Supreme Court’s Facebook decision from the perspective of constitutional law, see for example Oliver Lepsius, ‘Der Facebook-Beschluss des BGH aus der Sicht des Verfassungsrechts’ [2020] WuW 566. 88 German Federal Supreme Court, 23 June 2020, KVR 69/19 – Facebook (interim decision), paras 122. 89 ibid para 103. 90 ibid paras 105 ff. 91 ibid paras 106 ff. 92 ibid para 99. 93 ibid para 126. 94 German Competition Authority, 6 December 2020, press release – Facebook, Oculus. 95 Higher Regional Court Düsseldorf, press release, 24 March 2021 – Facebook (referral). 96 For a possible application of art 102 TFEU to the Facebook case, see: Wouter PJ Wils, ‘The obligation for the competition authorities of EU Member States to apply EU antitrust law and the Facebook decision of the Bundeskartellamt’ [2019] Concurrences 58. Author notes * Professor Dr. Dr., LL.M. (NYU), Attorney at Law (New York), Technical University Munich, TUM School of Management and Affiliated Research Fellow, Max Planck Institute for Innovation and Competition, Munich, Germany. © Published by OUP and CH Beck on behalf of GRUR e.V. All rights reserved. For permissions, please email: journals.permissions@oup.com and GrurInt@ip.mpg.de This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model)
TI - Data Processing as an Abuse of Market Power in Multi-Sided Markets. The More Competition-Oriented Approach in the German Federal Supreme Court’s Interim Decision KVR 69/19 – Facebook
JF - "GRUR International: GRUR Journal of European and International IP Law (Formerly: Gewerblicher Rechtsschutz und Urheberrecht, Internationaler Teil)"
DO - 10.1093/grurint/ikab057
DA - 2021-06-14
UR - https://www.deepdyve.com/lp/oxford-university-press/data-processing-as-an-abuse-of-market-power-in-multi-sided-markets-the-cCFyD2b07l
SP - 1
EP - 1
VL - Advance Article
IS - 
DP - DeepDyve
ER -