Court of Justice of the European Union ruling potentially hands antitrust officers more space in Big Tech examinations

July 5, 2023: On Tuesday, Meta Platforms lost its fight against a German data curb order that strikes at the heart of its enterprise model as Europe’s top court backed the German antitrust watchdog’s power to investigate privacy breaches.

The Court of Justice of the European Union (CJEU) ruling potentially hands antitrust authorities more leeway in Big Tech examinations.

The case centered on a challenge by Meta after the German cartel office in 2019 ordered the social media giant to stop collecting users’ data without their support, calling the practice an abuse of market power.

At issue was whether the German antitrust office overstepped its authority which utilizes its antitrust power to address information protection concerns, which are the remit of national data protection authorities.

Meta harvests user data for behavioral advertising, a business model common to Big Tech.

Meta, Instagram, and WhatsApp, questioned the finding, prompting a German tribunal to seek advice from the CJEU.

In response to the ruling, a Meta spokesperson said: “We are evaluating the Court’s judgment and will have more to say in due course.”

The CJEU judges said regarding antitrust investigations that “it may be necessary for the competition authority of the member state also concerned to examine whether that undertaking’s conduct complies with rules other than those relating to competition law.

The CJEU, however, said antitrust controllers must “take into consideration any decision or investigation by the competent supervisory authority under that regulation.”

The German cartel office welcomed the ruling.

“Data is a decisive factor in establishing market power. The use of the very personal data of consumers by the large internet companies can also be abusive under antitrust law,” its head, Andreas Mundt, said.

In a tweet, his counterpart at the French competition agency, Benoit Coeure, summoned the ruling a landmark decision on data protection as a competition parameter.

Thomas Graf, a partner at law firm Cleary Gottlieb, was more cautious about whether antitrust authorities would want to investigate the details of privacy law.

“You still need to explain why it is relevant for antitrust law and demonstrate restrictive effects and abuse, and they will need to coordinate with the GDPR authorities,” he said.

The General Data Protection Regulation (GDPR) of EU is a privacy and security law that charges obligations on organizations anywhere that target or collect data related to people in the EU.

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Court of Justice of the European Union ruling potentially hands antitrust officers more space in Big Tech examinations