Browsing by Subject "Facebook decision"

In the past decade or so, digital platforms have brought a mass of ease and accessibility into people’s lives by introducing, amongst others, new ways of communicating, shopping and searching for information. However, this ease has not come without problems, as the previous years have shown a concentration of market power in the digital markets with consequences to data privacy as well. It has been a challenge for enforcers to apply a traditional competition law framework to these markets, as they are characterized by their “free” nature, where users in reality pay with their personal data. Prompted by these problems, in 2020 the European Commission proposed a new Digital Markets Act (DMA) to regulate the behaviour of large tech companies, also called gatekeepers. Although the DMA is not strictly speaking a competition law instrument, it has been largely inspired by competition cases. The DMA became applicable in May 2023, with the Commission designating six gatekeepers who will have to comply with the DMA’s obligation by March 2024. While the mentioned interplay between data protection law and competition law has been discussed by academia for a while and the Commission has recognised this, it has hardly been evident in its enforcement practice. However, the interlinkage of data protection and competition law is now witnessed in Article 5(2) of the DMA which was inspired by the German competition authority’s (Bundeskartellamt) Facebook decision where the Bundeskartellamt concluded that Facebook had abused its dominant position by breaching its obligations under the GDPR. The case eventually made its way in front of the CJEU, which recently gave its ruling. Even though the case was decided under Article 102 TFEU, and not under the DMA, the ruling will arguably have consequences in the application of said instrument. This thesis thus examines the relationship of data protection and competition law in the EU, the DMA, especially Article 5(2) thereof, and the Facebook case. Although mainly using the legal doctrinal method, the thesis also reflects on policy choices and actions ought to be taken in order for Article 5(2) of the DMA to achieve its envisaged aims. As this field will rapidly continue to develop, it is advisable to note that changes have been taken into account up until November 2023.