Eine Frage des Zusammenhangs: Marktbeherrschungsmissbrauch durch rechtswidrige Konditionen

Abstract

A Question of Nexus: Abuse of Market Dominance through Unlawful Trading Conditions – The German Federal Cartel Office Targets Facebook

Facebook is testing the effectiveness of sanctions in German and EU consumer and data protections law. Against this background, the German Cartel Office is seeking to compensate enforcement deficits via competition law, and has initiated proceedings against Facebook on suspicion of having abused its (possible) market dominance by imposing on its users unfair conditions of use. It is, however, not a genuine task of competition law to establish or enforce consumer or data protection standards. Thus, infringements of such rules must only be considered an abuse pursuant to Article 102 TFEU or section 19 German Act against Restraints of Competition in cases where they are inherently connected with a position of market dominance. Such a nexus requires causality of an instrumental nature, i.e. that the undertaking could not have imposed the terms in question but for its market dominant position. Hence, to establish an abuse through unfair terms and conditions, it is crucial to rule out the possibility that the firm could have imposed the same terms even without market dominance due to systematic information asymmetries. Such an alternative explanation may be precluded, for instance, in cases of high transaction volumes, or where market mechanisms are at work which effectively remedy information asymmetries. Therefore, with regard to the proceedings against Facebook it will be essential for the Federal Cartel Office to show that a typical user of a social network such as Facebook is indeed aware of the quality standard (and in case of Facebook of the partial unlawfulness) of its terms of service. More generally, unlawful conduct by a dominant firm may only be considered an abuse if it is not concealed from consumers and if it affects the market value of the product in question. In conclusion, it is argued and illustrated that the rules on abuse of market dominance are at best apt to patchily close enforcement gaps left by other fields of law.