Antitrust

8 The German competition authority, the Bundeskartellamt (BKartA), has been a frontrunner in tackling the question of collection and use of data as a potential competition issue. In February 2019, the BKartA issued a decision finding that Facebook abused its dominant position in the German social media market. This finding was based on a novel theory of harm at the intersection of competition and data protection law: specifically, that Facebook abused its dominant position by making access to its social networking service conditional on users' consent to the unlimited collection of their personal data from third-party sources. Facebook has issued a statement announcing that it will appeal the BKartA's decision as it considers that the BKartA underestimated the competition that Facebook encounters in Germany and the decision undermines the existing mechanisms for ensuring consistent data protection standards across the EU. Facebook claims that the BKartA is "trying to implement an unconventional standard for a single company." The BKartA investigation signals an important focus by the competition authorities on the FANGs' market behavior and digital markets more broadly. Commissioner Vestager stated at a recent press conference that the EC is conducting a preliminary investigation into whether Amazon's collection and use of data from smaller merchants on its site could constitute an abuse of dominance is a further illustration of the same trend. These investigations demonstrate that as data has acquired economic value in evolving digital markets, access to it now has significant implications for the competitive landscape of the digital economy. MERGER CONTROL — UNDER- ENFORCEMENT OF FANGS? In the context of M&A activity, the EC has been criticized for 'under-enforcement' in the tech sector. In particular, the question has been raised whether the ability to properly investigate combinations of internet platforms and digital companies has been hampered because the European Union's (EU) revenue-based jurisdictional thresholds may fail to capture acquisitions of mavericks or start-up companies that have yet to generate significant revenues but that may hold important data, IP, technology or network value. Germany and Austria have addressed this by introducing to their merger control regimes a 'transaction value' threshold, with the hope that measurement of the value that a purchaser places on the target business will capture transactions such as acquisitions of tech or pharmaceutical start-ups. The EC is probably closely monitoring the implementation of the new thresholds in Germany and Austria as it is also examining whether to revise its thresholds in a similar vein. LEGISLATION In addition to competition law enforcement, the EU has proposed a number of legislative measures aimed at controlling the behavior of the tech giants and online platforms. For example, in September 2018, the EU passed new rules that will force the FANG companies to stop users uploading copyrighted content and to share revenue with writers and musicians. In February 2019, the European Parliament, the Council of the EU and the EC reached a deal on the provisions of the proposed platform- to-business (P2B) law that will govern the FANGs' commercial relations with FOREWORD T H E G E R M A N C O M P E T I T I O N A U T H O R I T Y, H A S B E E N A F R O N T R U N N E R I N T A C K L I N G T H E Q U E S T I O N O F C O L L E C T I O N A N D U S E O F D A T A A S A P O T E N T I A L C O M P E T I T I O N I S S U E 01 Antitrust as a Tool to Regulate the FANG Companies: Differing Approaches in the United States and in Europe

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