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+++ BREAKING +++
Düsseldorf court has "serious doubts" regarding the legality of @Kartellamt 's decision against #Facebook, suspends the decision.…
@Kartellamt Here is a THREAD with a quick analysis of the decision:
1/ In the 1st part of the decision, the court argues that #Facebook 's data collection does not constitute an exploitative abuse. The main argument is the lack of causality between Facebook's (presumed) market dominance and the collection of data.
2/ @Kartellamt cannot argue that #Facebook 's T&C deviate from those that a company in a competitive market would impose because the counterfactual was not sufficiently investigated. (Thus no infringement of the example in § 19(2) No. 2 ARC.)
3/ #Facebook 's practice does not result in "anti-competitive harm" because users do not "lose" their data and they agree to the data collection when they sign up to the network.
4/ The fact that #Facebook might infringe data privacy rules (#GDPR) does not justify a prohibition because such conduct is not anti-competitive; it does not affect freedom of competition or the openness of markets.
5/ There is also no causality between #Facebook 's (presumed) market dominance and the (presumed) infringements of data privacy rules. This is the longest part of the decision with detailed explanations regarding the need for causality.
6/ On the last few pages, the court argues that #Facebook 's conduct does not constitute an exclusionary abuse either. The main argument is that @Kartellamt did not provide sufficient evidence in this regard.
7/ The court also argues that the reasoning of @Kartellamt is faulty because it relies on users not having consented to the collection of their data. However, exclusionary effects cannot depend on whether or not there is customer consent.
8/ Finally: The court did not exclude the possibility of an appeal.
➡️We may soon see a decision from the 🇩🇪Supreme Court @BGH_Bund , possibly even a reference to the 🇪🇺ECJ @EUCourtPress
@BGH_Bund @EUCourtPress UPDATE - Andreas Mundt confirms that @Kartellamt will appeal: "Data is market power in the digital economy … Central legal questions must be clarified. We will therefore lodge an appeal with the Federal Supreme Court."
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