Exploitative Abuses in The Age of Dominant Digital Platforms – The German Facebook Case

On 16 February 2019, the German Federal Cartel Office made legal history by finding Facebook guilty of abusing a position of dominance through excessive data collection. It is the first time that a European competition agency has found an undertaking guilty of anticompetitive conduct because it violated consumers’ constitutional right to privacy rather than caused economic harm in the form of excessive prices. Only a few months later, the Düsseldorf Court of Appeal condemned the decision as fundamentally flawed in law and fact. The case triggered a remarkable inter-institutional dispute, leading the German government to intervene and attempt to correct the course set by the Düsseldorf court by means of legislative amendment. This paper concludes that the Federal Cartel Office’s decision is not as flawed as the court order suggests, and that it should be welcomed as an opportunity for policy-makers to reconsider and clarify the concept of consumer harm in the age of Big Tech platforms.