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EU court adviser says antitrust watchdog can investigate Meta privacy violations

Facebook's parent company is asking the court to overrule a decision by Germany’s competition watchdog that found the site used its dominance in the social media market to violate data privacy laws.

LUXEMBOURG (CN) — In the latest blow to Facebook’s parent company Meta, an adviser to the European Union’s top court said Tuesday national competition regulators can investigate data protection complaints. 

Advocate General Athanasios Rantos wrote in a nonbinding opinion for the European Court of Justice that the German Federal Cartel Office, or the Bundeskartellamt, can asses whether the social media monolith complied with EU data privacy regulations. 

“The compliance or non-compliance of that conduct with the provisions of the GDPR [General Data Protection Regulation] … may be a vital clue as to whether that conduct entails resorting to methods prevailing under merit-based competition,” the Greek judge wrote. The 2018 law governs data protection and privacy in the EU. 

The case was referred to the Court of Justice by the Higher Regional Court in Düsseldorf after Meta appealed a 2019 order from the FCO to stop bundling information from its suite of apps, including Facebook, Instagram and WhatsApp, to sell to advertisers. 

“Access to data is a key competitive parameter not only in the advertising market, but also in the social network market. Facebook's access to a significantly larger database further strengthens the already pronounced lock-in effects,” the agency said in a statement at the time.  

During hearings before the EU high court in the spring, Meta lawyers argued the FCO had overstepped its authority.

"The Bundeskartellamt has openly undermined the substantive and procedural requirements of the GDPR legislation," Meta’s lawyer Hans-Georg Kamann told the Luxembourg-based court. The company argued the FCO hadn’t properly consulted national data privacy authorities before moving forward with its investigation. 

Ranthos noted in his opinion Tuesday it is important for competition regulators to consult with their privacy counterparts during any investigation.

“It is still the competition authority’s duty to inform and cooperate with the competent supervisory authority where that authority has begun an investigation of the same practice or has indicated its intention to do so, and possibly to await the outcome of that authority’s investigation before commencing its own assessment,” he wrote.

Opinions from advocate generals are not binding on the court but final decisions follow their legal reasoning in about 80% of cases. The court is expected to rule on the case in the coming months.

"We await the final judgment to determine any next steps," Meta said in a statement Tuesday.

A final ruling against Meta would be the company's latest defeat at the EU’s top court. In April, the court ruled that Germany’s consumer protection association can sue the social media giant for privacy breaches. Last year, the court held that all member states are allowed to bring privacy complaints against companies, regardless of where they are headquartered. 

Days after the May hearing, the FCO pushed forward with its fight against the tech giant by announcing that Meta will be subject to special abuse control by the agency for the next five years, It joins Apple and Google as companies with “paramount significance across markets” and will face further scrutiny under a new German law that allows authorities to intervene earlier against digital companies.

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