Antitrust

S H E A R M A N & S T E R L I N G L L P | 9 5 THE RELATIONSHIP BETWEEN ANTITRUST AND DATA PROTECTION ENFORCEMENT The implications of the BKartA's Facebook decision to the continuing debate surrounding the interface between data protection and antitrust enforcement may be limited to German enforcement. The BKartA relied on German case law in order to use Facebook's alleged breach of the EU General Data Protection Regulation (GDPR) 17 to prove that Facebook's data processing practices constituted an abuse under German competition law (i.e., "exploitative business terms"). 18 The GDPR breach, according to the BKartA, was that Facebook had no effective justification in order to collect its users' data from other apps and services without their effective consent. 19 It could be questioned, however, whether the BKartA was the best authority to assess the underlying breach of the GDPR and to pursue such data protection concerns, or whether the German data protection authority would have been better placed to deal with them. Whilst the BKartA "closely cooperated with data protection authorities" in its investigation, 20 there is currently no clear framework in Germany or across Europe for consistency of enforcement if both data protection and competition authorities are able to sanction the same conduct. Given the importance of data in the digital economy and the increased spotlight on the data protection practices both from an antitrust perspective as well as more generally with the enforcement of the GDPR from May 2018, 21 it is likely that data issues will be influential in T H E R E I S C U R R E N T LY N O C L E A R F R A M E W O R K I N G E R M A N Y O R A C R O S S E U R O P E F O R C O N S I S T E N C Y O F E N F O R C E M E N T I F B O T H D A T A P R O T E C T I O N A N D C O M P E T I T I O N A U T H O R I T I E S A R E A B L E T O S A N C T I O N T H E S A M E C O N D U C T 12. See n. 8. 13. See the Bundeskartellamt's press release at n. 4 above. 14. Note by Damian Collins MP, Chair of the DCMS Committee, Summary of key issues from the Six4Three files, available here: https://www. parliament.uk/documents/commons-committees/ culture-media-and-sport/Note-by-Chair-and- selected-documents-ordered-from-Six4Three.pdf. 15. See n. 2. 16. Background information on the Bundeskartellamt's Facebook proceeding, pages 1–2, available here: https://www. bundeskartellamt.de/SharedDocs/Publikation/EN/ Pressemitteilungen/2019/07_02_2019_Facebook_ FAQs.pdf?__blob=publicationFile&v=6. 17. The General Data Protection Regulation (EU) 2016/679. 18. Section 19(1) of the German Competition Act. 19. Background information on the Facebook proceeding, Bundeskartellamt (December 19, 2019), see Q6, available here: https://www. bundeskartellamt.de/SharedDocs/Publikation/ EN/Diskussions_Hintergrundpapiere/2017/ Hintergrundpapier_Facebook.pdf?__ blob=publicationFile&v=6. 20. Background information on the Facebook proceeding, Bundeskartellamt (December 19, 2019), see Q6, available here: https://www. bundeskartellamt.de/SharedDocs/Publikation/ EN/Diskussions_Hintergrundpapiere/2017/ Hintergrundpapier_Facebook.pdf?__ blob=publicationFile&v=6. 21. Regulation (EU) 2016/679 of the European Parliament and of the Council of April 27, 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation). 22. Shaping competition policy in the era of digitisation, further information available here: http://ec.europa.eu/competition/scp19/. future antitrust cases. The EC hosted a conference in January 2019 on the competition issues of data access, sharing and pooling "in a world of ubiquitous data" as well as the market power of digital platforms. 22 CONCLUSION In light of the EC and national competition authority investigations and of the BKartA's Facebook decision, it is evident that antitrust authorities are increasingly scrutinizing the role of data in competition and, particularly, in competition on online two-sided platforms. Given the combination of concerns regarding the alleged market power of the big technology companies and the role of data as a parameter to competition and as an important input for digital services, increased enforcement in this area can be expected. It is clear that antitrust authorities will consider data issues when they are seeking to establish anti-competitive behavior. In addition to fines imposed (which can be up to 10% of the infringer's global turnover for EC fines), any behavioral or structural remedies imposed as a result of such cases may well have a significant impact on the business model of technology companies that have, until now, been very successful at utilizing customer data in order to develop a profitable ecosystem of diverse products and services.

• Cover