Opinion of the Advocate General — ECLI:EU:C:2022:704
Date: 2022-09-20
Language of the case: German
Subject matter: Principles, objectives and tasks of the Treaties;Data protection
Procedure: Reference for a preliminary ruling
Origin: Germany

summary of the information obtained by Facebook about their 
activities on other websites and apps and disconnect these data about past and 
future activities from their Facebook.com account if they so wish. 
II. 
The provisions of German law relevant to the assessment of the appeal 
proceedings are worded as follows: 
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Paragraph 19(1) of the GWB, in the version in force until 18 January 2021: 
(1) The abusive exploitation of a dominant position by one or more 
undertakings is prohibited. 
Paragraph 19(1) of the GWB, in the version in force since 19 January 2021: 
(1) The abuse of a dominant position by one or more undertakings is prohibited. 
Paragraph 32(1) of the GWB: 
(1) The competition authority may require undertakings or associations of 
undertakings to bring to an end an infringement of a provision of this Part or of 
Articles 101 or 102 of the Treaty on the Functioning of the European Union. 
III. 
The success of Facebook Ireland’s appeal – which, following the withdrawal of 
the Masquerade service and the Federal Cartel Office’s statement that it no longer 
derives any rights from the contested decision in that regard, is directed only 
against the remainder of the decision – depends on the answers to the preliminary 
questions raised in the operative part of the decision. Consequently, before 
deciding on the substance of the appeal, the proceedings must be stayed and a 
preliminary ruling obtained from the Court of Justice of the European Union 
under Article 267 TFEU. 
1. First of all, the Federal Cartel Office based its order under Paragraphs 19(1) 
and 32 of the GWB solely on the ground that the processing of data from the 
group services provided separately from Facebook.com, and from Facebook 
Business Tools, as set out in the terms of service and implemented, constitutes the 
abusive exploitation of a dominant position on the market for social networks for 
private users in Germany, in the form of an abuse of terms under the general 
provision that is Paragraph 19(1) of the GWB, [Or. 10] because such processing 
is a result of market power and therefore breaches the GDPR, since it lacks 
sufficient justification under Article 6(1) and Article 9(2) of the GDPR. 
Furthermore, the abuse creates an impediment to the detriment of competitors on 
the social networks market and on third markets. An additional assessment of the 
balance of interests with regard to competition is superfluous and would in any 
case lead to the same result as the assessment with regard to data protection 
interests. Since the concept of protection developed in the German case-law in 
relation to the general provision of Article 19(1) of the GWB has as yet no 
counterpart in European case-law or in practice, the decision is based solely on 
Paragraph 19(1) of the GWB, which is stricter in that regard than Article 102 
TFEU. 
While the order of the Federal Cartel Office must be annulled in so far as it is 
directed against the first and third applicants and all of their associated 
undertakings in accordance with Paragraph 36(2) of the GWB, since the latter 
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were not involved in the administrative proceedings and were not given a hearing, 
and since the order does not include any discretionary consideration of the 
grounds for involving the first and third applicants, and the discretion required 
under Paragraph 32(1) of the GWB may not be exercised for the first time in the 
appeal proceedings, the Chamber will proceed, with respect to Facebook Ireland, 
on the basis of the following considerations: 
a) Facebook Ireland is dominant on the relevant market for the provision of 
digital social networks for private users which, for the purposes of monitoring 
abuse, can be defined as national since, according to the uncontested findings of 
the Federal Cartel Office, its network effects are confined primarily to Germany; 
it is therefore Facebook Ireland that is addressed by Paragraph 19(1) of the GWB. 
b) A breach of the GDPR by Facebook Ireland’s terms of service and their 
implementation may constitute an abuse of terms detrimental to private users 
under the general provision of Paragraph 19(1) of the GWB, since that paragraph, 
like Article 102 TFEU, protects consumers not only indirectly from distortion of 
the rules of competition through market power, but also directly from exploitation 
by a dominant undertaking, while having no impact on the structure of 
competition (see judgment of 15 March 2007, British Airways, C-95/04, 
paragraph 106, available from JURIS; Bundesgerichtshof (Federal Court of 
Justice; ‘the BGH’), [Or. 11] judgment of 7 December 2010, Entega II, 
KZR 5/10, paragraph 55, available from JURIS). This harms competition by 
infringing the right of users, protected by the GDPR, to control their personal data. 
A comparative market analysis and determination of a substantial deviation from 
the comparative conditions, such as would be carried out to establish an abusively 
excessive price within the meaning of Paragraph 19(2)(2) of the GWB, are not 
undertaken if the alleged abusive conduct is a relevant breach of the law (see 
BGH, judgment of 6 November 2013, VBL-Gegenwert I, KZR 58/11, 
paragraph 66, available from JURIS). Nor is there any scope for the assessment of 
the balance of interests also required under the general provision of 
Paragraph 19(1) of the GWB (see BGH, judgment of 7 June 2016, Pechstein v 
International Skating Union, KZR 6/15 
[ECLI:DE:BGH:2016:070616UKZR6.15.0], paragraph 48, available from 
JURIS). The causal link between abuse and market power required under 
Paragraph 19(1) of the GWB and the first sentence of Article 102 TFEU (see 
judgment of 14 November 1996, Tetra Pak, C-333/94 [EU:C:1996:436], 
paragraph 27, available from JURIS; judgment of 14 February 1978, United 
Brands, C-27/76, [EU:C:1978:22], paragraph 248/257, available from JURIS; 
BGH, decision of 23 June 2020, Facebook, KVR 69/19 
[ECLI:DE:BGH:2020:230620BKVR69.19.0] paragraph 73, available from 
JURIS) exists, both in terms of behavioural causality in the broader sense, since, if 
competition were functioning effectively it would not be advisable for Facebook 
Ireland to insist on conditions for data processing operations that are not permitted 
under the GDPR, and also in terms of the causality of results, since, although the 
GDPR can also be breached by undertakings that are not in a dominant position, 
users have scarcely any alternative when it is breached by an undertaking with a 
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virtual monopoly, such as Facebook Ireland (see also judgments of 5 October 
1988, Alsatel, C-247/86 [EU:C:1988:469], available from JURIS and of 27 March 
1974, BRT and SABAM, C-127/73 [EU:C:1974:25], available from JURIS, in 
which the Court of Justice of the European Union does not question the 
connection between abuse and market power). If abuse is demonstrated, Facebook 
Ireland cannot rely on a group privilege under Paragraph 36(2) of the GWB (see 
judgment of 24 October 1996, Viho, C-73/95 P, paragraph 17, available from 
JURIS; BGH, decision of 6 November 2012, Gasversorgung Ahrensburg, 
KVR 54/11, paragraphs 19 and 22, available from JURIS; judgment of 23 June 
2009, Entega I, KZR 21/08, paragraph 16, available from JURIS). 
c) The order is unlawful on procedural grounds since, contrary to the second 
sentence of Article 3(1) of Council Regulation (EC) No 1/2003 of 16 December 
2002 on the implementation of the rules on competition laid down in Articles 81 
and 82 of the Treaty [Or. 12] (the Implementing Regulation), the Federal Cartel 
Office did not examine the first paragraph of Article 102 TFEU, although 
Facebook Ireland’s dominant position in Germany corresponds to a dominant 
position on a substantial part of the internal market within the meaning of the first 
paragraph of Article 102 TFEU (see judgment of 23 April 1991, Höfner-Elsner, 
C-41/90, paragraph 28, available from JURIS; judgment of 9 November 1983, 
Michelin, C-322/81 [EU:C:1983:313], paragraph 28, available from JURIS) and in 
view of the finding that the breach of the GDPR entails ‘actual and potential 
impediments to the detriment of competitors’ (paragraph 885 of the Office’s 
decision), the requirement under the first paragraph of Article 102 TFEU that 
trade between Member States be affected should also have been assumed to apply 
(see judgment of 23 April 1991, Höfner-Elsner, C-41/90, paragraph 32, available 
from JURIS; judgment of 9 November 1983, Michelin, C-322/81 
[EU:C:1983:313], paragraph 104, available from JURIS). […] [amplification] 
Since […] it must be assumed that Paragraph 19(1) of the GWB and the first 
paragraph of Article 102 TFEU are consistent with each other (see BGH, 
judgment of 8 April 2014 VBL-Versicherungspflicht, KZR 53/12, paragraph 46, 
available from JURIS; judgment of 6 November 2013, VBL-Gegenwert I, 
KZR 58/11, paragraph 51, available from JURIS), the procedural error is, 
however, irrelevant if the order is lawful under Paragraph 19(1) of the GWB and, 
if it is unlawful under Paragraph 19(1) of the GWB, does not lead to any further 
significant contraventions. 
d) That being the case, can the Federal Cartel Office determine whether 
Facebook Ireland’s terms of service and their implementation breach the GDPR, 
and impose measures to remedy that breach? [Or. 13] 
aa) Question 1. a) of the request for a preliminary ruling seeks to clarify whether 
it is compatible with the competence, cooperation and consistency provisions of 
Article 51 et seq., and in particular Article 56(1), of the GDPR and the provisions 
in relation to powers of Articles 57 and 58 of the GDPR that, for the purposes of 
monitoring abuses of competition law, the Federal Cartel Office should determine 
that Facebook Ireland’s terms of service and their implementation breach the 
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GDPR and order measures to remedy that breach. The Federal Cartel Office is not 
a supervisory authority within the meaning of the GDPR, and the lead supervisory 
authority under Article 56(1) of the GDPR is the Irish supervisory authority, since 
Facebook Ireland is Facebook’s main establishment in Europe, operates the social 
network in Europe, uses standard terms of service in all Member States of the 
European Union and is the controller for the processing of personal data for the 
entire territory of the European Union within the meaning of Article 4(7) of the 
GDPR. 
In so far as the possibility of civil-law protection under Article 82 of the GDPR 
and, in particular, other penalties under Article 84(1) of the GDPR must also be 
taken into consideration in that context, the Chamber notes that Paragraphs 19 and 
32 of the GWB are not among the provisions notified by Germany to the 
European Commission as required by Article 84(2) of the GDPR (paragraph 201 
of the statement of grounds of appeal). 
bb) If it is compatible with the competence rules of the GDPR that, for the 
purposes of monitoring abuses of competition law, the Federal Cartel Office 
determine that the terms of service and their implementation breach the GDPR 
and that it impose a penalty for that breach, Question 1. b) of the request seeks to 
clarify whether that is compatible with the principle of sincere cooperation 
enshrined in Article 4(3) TEU, if the lead supervisory authority under 
Article 56(1) of the GDPR is already examining that infringement, as in the case 
here of the Irish supervisory authority, which, according to Facebook’s 
uncontested submission (paragraphs 188 and 217 of the statement of grounds of 
appeal), was already cooperating with other relevant supervisory authorities in the 
Union on an ongoing examination of a possible infringement of the GDPR by 
Facebook Ireland at the time of the Office’s decision. 
e) If the Federal Cartel Office can determine, for the purposes of monitoring 
abuses of competition law, that Facebook Ireland’s terms of service and their 
implementation breach the GDPR and order measures to remedy that breach, [Or. 
14] do the terms of service (as further set out in the data and cookies policies) in 
relation to the processing of data from other group services and Facebook 
Business Tools (together also: ‘off-Facebook data’) and their implementation 
breach the GDPR, and can the Federal Cartel Office prohibit the terms of service 
and their implementation and order that the data may not be processed or may be 
processed only with the separate consent of users, to which the use of 
Facebook.com may not be made subject? 
aa) The Federal Cartel Office rightly assumes that off-Facebook data are 
personal data within the meaning of Article 4(1) of the GDPR (see judgment of 
19 October 2016, Breyer, C-582/14, paragraph 49, available from JURIS; 
judgment of 24 November 2011, Scarlet, C-70/10, paragraph 51, available from 
JURIS; BGH, reference to the Court of Justice of the European Union of 
5 October 2017, Cookie-Einwilligung I, I ZR 7/16, 
[ECLI:DE:BGH:2017:051017BIZR7.16.0], paragraph 23, available from JURIS), 
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that the data are used to personalise the network, that the advertising constitutes 
‘profiling’ within the meaning of Article 4(4) of the GDPR and that Facebook 
Ireland is the data processing controller within the meaning of Article 4(7) of the 
GDPR (see judgment of 29 July 2019, Fashion ID, C-40/17 [EU:C:2019:629], 
paragraph 84, available from JURIS). 
bb) The Federal Cartel Office rightly assumes that – even in the light of point 2 
of the new terms of service of 31 July 2019 – users do not consent to the 
processing of off-Facebook data in accordance with Article 6(1)(a) and 
Article 9(2)(a) of the GDPR by clicking on the ‘Sign up’ button (see judgment of 
1 October 2019, Planet49, C-673/17 [EU:C:2019:801], paragraph 58 et seq.), and 
that the consent that Facebook Ireland obtains from users to the use of data from 
Facebook Business Tools to show personalised advertisements relates only to the 
use of the data for that purpose and not to the collection and linking of those data 
with the user’s Facebook.com account in general. The Federal Cartel Office also 
rightly assumes that the possibility of blocking the placement of cookies on the 
user’s device or web browser, or deleting them, the possibility of resetting 
advertising IDs in a mobile device’s operating system and the OFA function 
introduced at the end of January 2020 do not fulfil the requirements for consent 
under Article 6(1)(a) and Article 9(2)(a) of the GDPR. [Or. 15] 
cc) Since the processing of off-Facebook data, as provided for in the terms of 
service – including within the group – is lawful if it is justified by at least one of 
the grounds under Article 6(1)(a) to (f) of the GDPR, and the Court of Justice has 
already ruled that the identical provision of Article 7 of the preceding Data 
Protection Directive (Directive 95/46/EC) provides an exhaustive and conclusive 
list of cases in which the processing of personal data may be considered lawful 
and that Member States may neither introduce new principles for the lawful 
processing of personal data alongside this Article, nor impose additional 
conditions which would alter the scope of any of the principles provided for 
therein (see judgment of 29 July 2019, Fashion Id, C-40/17 [EU:C:2019:629], 
paragraph 55, available from JURIS; judgment of 19 October 2016, Breyer, 
C-582/14, paragraph 57, available from JURIS; judgment of 24 November 2011, 
ASNEF and FECEMD, C-468/10 and C-469/10, paragraphs 30 and 32, available 
from JURIS), is the processing of off-Facebook data as provided for in the terms 
of service only ever justifiable if consent is obtained? For only then could the 
Federal Cartel Office order that, for data protection reasons, such data may not be 
processed or may be processed only if consent is given . 
(1) According to point 1 (‘The services we provide’) of its current terms of 
service (Annex Bf 9), the following contractual services relevant to this case are 
provided by Facebook Ireland as part of its social network: 1. personalised 
content, 2. personalised advertising, 3. user and network security, 4. product 
improvement and 5. consistent and seamless use of Facebook’s products. 
Facebook Ireland collects the user- and device-related data listed in its Data 
Policy (Annex Bf 10) under the heading ‘What kinds of information do we 
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collect?’ from the use of its group services and from Facebook Business Tools; it 
links these data with the data collected and stored while Facebook.com is being 
used and, according to the section headed ‘How do we use this information?’, uses 
it to provide, personalise and improve its products, to provide measurement, 
analytics and other business services, to promote safety, integrity and security, to 
communicate with users and to research and innovate for social good; according 
to the [Or. 16] section headed ‘How do the Facebook Companies work together?’, 
it also uses it ‘across the Facebook Companies.’ 
According to its Cookies Policy (Annex Bf 11), Facebook Ireland sets cookies or 
uses other storage technologies when users use the group’s services and visit 
third-party websites and apps that have integrated Facebook Business Tools, and 
collects user- and device-related data without any further action by the user; it 
uses those data to provide its services and for security, advertising and analytics 
purposes. 
The kinds of data collected and used are detailed in the Data Policy under the 
heading ‘What kinds of information do we collect?’ (Annex Bf 10) and in point 
2(a) to (d) of the operative part of the Office’s decision. 
Facebook Ireland relies in the section of its Data Policy headed ‘What is our legal 
basis for processing data?’(Annex Bf 10) on all of the grounds under Article 6(1) 
of the GDPR. Under the heading ‘Learn more about these legal bases’ (Annex Bf 
12), Facebook Ireland relies on consent within the meaning of Article 6(1)(a) of 
the GDPR 1. for processing data with special protections that are provided by 
users in their Facebook.com profile, for sharing with persons they choose and to 
personalise content, 2. for using facial recognition technology, 3. for using data 
that advertisers and other partners provide about users’ activity off Facebook 
Company Products to personalise advertising, 4. for sharing data that personally 
identifies users with advertisers, 5. for collecting information that users allow 
Facebook to receive through the device-based settings they enable (GPS location, 
camera, photos). Facebook Ireland obtains separate consent from users to process 
their data for these purposes or offers them the chance to object (in the case of 
facial recognition). 
In the document referred to (Annex Bf 12), Facebook Ireland relies on the 
justification of necessity for the performance of the contract within the meaning 
of Article 6(1)(b) of the GDPR 1. to provide, personalise and improve its 
products, 2. to promote safety, integrity and security, 3. to [Or. 17] transfer and 
transmit data outside the EEA, 4. to communicate with users, 5. to provide 
consistent and seamless experiences across all Facebook Company Products. 
Facebook Ireland relies on the justification of legitimate interest under 
Article 6(1)(f) of the GDPR 1. vis-à-vis minors, 2. for providing measurement, 
analytics and other business services, 3. for providing marketing communications, 
4. to research and innovate for social good, 5. to share information with others 
including law enforcement agencies and to respond to legal requests. 
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Facebook Ireland further relies on the justification of compliance with a legal 
obligation (Article 6(1)(c) of the GDPR), the protection of vital interests 
(Article 6(1)(d) of the GDPR) and tasks carried out in the public interest 
(Article 6(1)(f) of the GDPR) (see Annex Bf 12 for detailed information). 
(2) Consent would be required if and in so far as the collection and linking of 
data with the Facebook.com account and the use of off-Facebook data involved 
the processing of special categories of personal data within the meaning of 
Article 9(1) of the GDPR and no permission other than consent under 
Article 9(2)(a) of the GDPR could be given. 
(a) Question 2. a) of the request seeks to clarify whether, as the Federal Cartel 
Office believes (paragraph 584 et seq. of its decision), the use of Facebook 
Business Tools, cookies and other storage technologies to collect data about visits 
to third-party websites and apps and/or the linking of those data with the user’s 
Facebook.com account and/or the use of those data involves the processing of 
sensitive data for the purpose of Article 9(1) of the GDPR if those websites and 
apps are covered by the criteria of that provision, such as flirting apps, gay dating 
sites, political party websites and health-related websites (paragraph 587 of the 
Office’s decision). 
In that regard, is it sufficient for the data to relate to visits to the website or app 
alone, or must the user also have entered certain information, for example by 
registering or placing orders, and how should the terms ‘data revealing …’ within 
the meaning of the first data category and ‘data’ within the meaning of the second 
data category of Article 9(1) of the GDPR be interpreted [Or. 18]? The 
formulation of the first data category of Article 9(1) of the GDPR (‘data 
revealing …’) might support the argument that the processing of the ‘source data’, 
in other words visits to a website or the information entered by the user, is 
prohibited, and it is therefore a matter of determining when this ‘reveals’ sensitive 
data. Since, by contrast, the second data category of Article 9(1) of the GDPR 
appears to prohibit only the processing of sensitive data, can visits to relevant 
websites or the entry of information by the user in themselves be regarded as 
sensitive data, even though the distinction is further qualified, by the legal 
definition in Article 4(15) of the GDPR, for example, which states that data 
concerning health can also be data which ‘reveal’ information about a person’s 
health status. The question also seeks to clarify whether the purpose for which the 
data are used – in this case, for example, to personalise the social network and 
advertising, for network security, to improve services, to provide measurement 
and analytics services for advertising partners, to research for social good, to 
respond to legal requests and comply with legal obligations, to protect the vital 
interests of users and third parties and to carry out tasks in the public interest – is 
also relevant to the assessment. 
(b) Question 2.b) of the request seeks to clarify, with regard to sensitive data for 
the purpose of Article 9(1) of the GDPR, whether the user has manifestly made 
those data public by visiting the website or app and/or entering information and/or 
FACEBOOK AND OTHERS 
 
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clicking or tapping on the buttons provided by Facebook Ireland and integrated 
into the websites or apps, such as the social plugins (Like, Share) or Facebook 
Login or Account Kit (Article 9(2)(e) of the GDPR), since he or she would then 
have lost the specific protection of Article 9(1) of the GDPR without any need for 
consent under Article 9(2)(a) of the GDPR. In view of the sector in which 
Facebook operates, the other grounds for permission under Article 9(2) of the 
GDPR do not apply, or at least are not claimed by Facebook or referred to in its 
terms of service. 
(3) Where Facebook Ireland also uses cookies and similar storage technologies 
to collect data from users’ devices when they use the other group services and 
visit websites and apps in which Facebook Business Tools have been integrated, 
Article 5(3) of Directive 2002/58/EC of the European Parliament and of the 
Council of 12 July 2002 concerning the processing of personal data and the 
protection of privacy in the [Or. 19] electronic communications sector (Directive 
on privacy and electronic communications) also applies. Since, as the Federal 
Court of Justice ruled, the GDPR does not affect the application of this provision, 
the first sentence of Paragraph 15(3) of the Telemediengesetz (Law on telemedia), 
which implements Directive 2002/58/EC, still applies and must be interpreted in 
accordance with the directive as meaning that the user’s consent is required for the 
use of cookies to produce user profiles for the purposes of advertising or market 
research (see BGH, judgment of 28 May 2020, Cookie-Einwilligung II, I ZR 7/16, 
paragraph 47 et seq., available from JURIS; see also judgment of 1 October 2019, 
Planet49, C-673/17 [ECLI: EU:C:2019:801], paragraph 38 et seq., available from 
JURIS; judgment of 29 July 2019, Fashion ID, C-40/17 [EU:C:2019:629], 
paragraph 88 et seq., available from JURIS). However, the question whether the 
consent obtained for the use of partner data to show personalised advertisements is 
adequate for this is of no further relevance here, since the Federal Cartel Office 
based its finding that Facebook had breached the prohibition on the competition-
law abuse laid down in Paragraph 19(1) of the GWB only on a breach, by 
Facebook’s data processing operations, of the GDPR, and not on a breach of the 
first sentence of Paragraph 15(3) of the Law on telemedia. 
(4) If and in so far as consent is not required under Article 9(2)(a) of the 
GDPR – in other words, for the processing of data from the other group services, 
with regard to which the Federal Cartel Office did not find any evidence of the 
processing of potentially sensitive data for the purpose of Article 9(1) of the 
GDPR, and the processing of non-sensitive data from Facebook Business Tools or 
data which have manifestly been made public by the user – can Facebook Ireland 
rely on other justifications under Article 6(1) of the GDPR for the processing of 
off-Facebook data, and, if so, to what extent? The Chamber assumes that, where 
data are manifestly made public within the meaning of Article 9(2)(e) of the 
GDPR, only the prohibition under paragraph 1 of that provision ceases to apply, 
and not the requirement for a justification under Article 6(1) of the GDPR (see the 
fifth sentence of recital 51). 
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(a) Question 3 of the request seeks to clarify whether, when Facebook Ireland, 
as referred to above, offers 1. personalised content, 2. personalised advertising, 3. 
user and network security, 4. product improvement and 5. consistent and seamless 
use of Facebook companies’ products as contractual services, it can rely on the 
justification of necessity for the performance of a contract under Article 6(1)(b) of 
the GDPR, or on the [Or. 20] justification of legitimate interests under 
Article 6(1)(f) of the GDPR, if it collects off-Facebook data for these purposes, 
links those data with the user’s Facebook.com account and uses them. 
The Chamber believes that there is much in the case-law of the Court of Justice 
with regard to necessity (see judgment of 4 May 2017, Rigas satiksme, C-13/16, 
paragraph 30, available from JURIS) and the factors taken into consideration by 
the European Data Protection Board in its Guidelines 2/19 (paragraphs 2, 26 et 
seq., 48 et seq. and 57, Annex Bf 42B) to support the view that the processing of 
data for the purposes of personalised advertising, which does not require cookies, 
of user and network security and of product improvement, can certainly be 
regarded as being in the legitimate interests of the undertaking; the case-law also 
appears to suggest that the processing of data to personalise content and, in some 
cases, also to ensure the consistent and seamless use of Facebook companies’ 
products can be regarded as necessary for the performance of Facebook Ireland’s 
contracts. 
Accordingly, Facebook Ireland could have a legitimate interest, for example, in 
processing WhatsApp data for user and network security because, as it states in the 
section of the Data Policy headed ‘How do the Facebook Companies work 
together?’ (Annex Bf 10), it uses information from WhatsApp accounts sending 
spam to take action against those accounts on Facebook.com, although this is 
otherwise neither necessary for the performance of the contract nor likely to be 
justified by other legitimate interests, since Facebook Ireland does not use 
WhatsApp data for product and personalisation purposes on Facebook.com 
(paragraph 746 of the Office’s decision). 
The processing of Instagram data for the personalisation of content and the 
seamless use of Facebook products (so that users can be shown people or content 
on Facebook.com that might also be of interest to them there) could be necessary 
for the performance of the contract or at least be in the legitimate interests of 
Facebook Ireland. Facebook Ireland could also have a legitimate interest in 
processing these data for the purposes of personalised advertising, network 
security and product improvement. In particular, by its own account, Facebook 
Ireland uses Instagram data from accounts that behave inappropriately or are 
clearly involved in unlawful activity to ensure the security of Facebook users [Or. 
21] (paragraph 465 of the statement of grounds of appeal). In principle, the same 
could apply to the processing of Oculus data, although there are not yet enough 
findings on the specific purposes for which those data are used on Facebook.com. 
The processing of data from Facebook Business Tools, particularly the social 
plugins Like and Share, and from Facebook Login and Account Kit could be 
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necessary for the performance of the contract, or at least in Facebook Ireland’s 
legitimate interests, provided it is intended for the personalisation of content and 
the seamless use of Facebook products. This should require the user to click or tap 
on the relevant button and should be limited to the data processing operations 
required in a particular case. Irrespective of whether or not the user has clicked or 
tapped on the buttons, the collection of data and the linking of those data with the 
Facebook.com account could be in the legitimate interests of Facebook Ireland if 
the user has consented to the use of the data for the display of personalised 
advertisements. Data processing for the purposes of network security or product 
improvement could also be legitimate interests of Facebook Ireland. By its own 
account, Facebook uses data from social plugins to identify rapidly, from the 
many website visits, attempts by bots to open and operate Facebook accounts 
(paragraph 465 of the statement of grounds of appeal). 
(b) Question 4 of the request seeks to clarify whether 
– the fact of users being underage, vis-à-vis the personalisation of content and 
advertising, product improvement, network security and non-marketing 
communications with the user; 
– the provision of measurements, analytics and other business services to enable 
advertisers, developers and other partners to evaluate and improve their services; 
– the provision of marketing communications to the user to enable Facebook 
Ireland to improve its products and engage in direct marketing; 
– research and innovation for social good, to further the state of the art or the 
academic understanding of important social issues and to affect society and the 
world in a positive way; 
– the sharing of information with law enforcement agencies and responding to 
legal requests in order to prevent, detect and prosecute criminal offences, unlawful 
use, breaches of the terms of service and policies and other harmful behaviour; 
[Or. 22]  
may constitute legitimate interests within the meaning of Article 6(1)(f) of the 
GDPR with regard to the collection of off-Facebook data for these purposes, the 
linking of those data with the user’s Facebook.com account and their use. 
In particular, can Facebook Ireland rely on the justification of legitimate interests 
under Article 6(1)(f) of the GDPR for the processing of data obtained from other 
group services and from Facebook Business Tools in the case of minors who have 
not yet reached the age of 16 required in order to give independent consent under 
Article 6(1)(a) of the GDPR (Article 8(1) of the GDPR) – no provision having 
been made in Germany for a lower age pursuant to the third sentence of 
Article 8(1) of the GDPR – who do not have parental consent and who the 
German commentaries (apparently unanimously) believe to be unable to enter 
independently into a valid contract within the meaning of Article 6(1)(b) of the 
REQUEST FOR A PRELIMINARY RULING OF 24. 3. 2021 – CASE C-252/21 
 
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GDPR with a social network for the use of its services, since it does not involve 
only a legal benefit on account of the processing of the data (Paragraph 107 of the 
Bürgerliches Gesetzbuch (German Civil Code, ‘the BGB’); see Klumpp in: 
Staudinger, BGB, Revised edition 2017, ‘§ 107’, paragraph 30; Spickhoff in: 
MüKoBGB, 8th edition 2018, ‘§ 107’, paragraph 82; Mansel in: Jauernig, BGB, 
18th edition 2021, ‘§ 107’, paragraph 3)? 
It also appears doubtful whether the processing of off-Facebook data can be 
justified by the interests of research and innovation for social good, to further the 
state of the art or the academic understanding of important social issues and to 
affect society and the world in a positive way. 
The use of data from Facebook Business Tools to provide measurement, analytics 
and other business services to enable advertisers, developers and other partners to 
evaluate and improve their services could, by contrast, be in the legitimate 
interests of Facebook Ireland (and its partners) if users have consented to the use 
of partner data for the display of personalised advertisements. If, and in so far as, 
the processing of data from the other group services and/or Facebook Business 
Tools is justified for the purposes of product improvement, this could also apply 
to its use for the provision of marketing communications to the user to enable 
Facebook to improve its products and engage in direct marketing. [Or. 23] 
Similarly, collecting those data, linking them with the Facebook.com account and 
using them, or using off-Facebook data already collected and linked by other 
lawful means to share information with law enforcement agencies and to respond 
to legal requests in order to prevent, detect and prosecute criminal offences, 
unauthorised use, breaches of the terms of service and policies and other harmful 
behaviour could be in the legitimate interests of Facebook Ireland. 
The fact that third-party providers that have integrated Facebook Business Tools 
into their websites can wait until they have obtained the user’s consent before 
transmitting data to Facebook Ireland (paragraph 868 of the Office’s decision) 
and that, since 28 January 2020, Facebook has provided the OFA function, which 
allows Facebook.com users to view a summary of the information Facebook 
receives about their activities on other websites and apps, and to disconnect 
information about past and future activities from their Facebook.com account if 
they so wish, should perhaps also be taken into account here, in addition to the 
legal right to object under Article 21 of the GDPR (paragraphs 148 and 149 of the 
statement of grounds of appeal). 
(c) Question 5 of the request seeks to clarify whether collecting those data, 
linking them with the Facebook.com account and using them, or using off-
Facebook data already collected and linked by other lawful means, can be 
justified in individual cases under Article 6(1)(c), (d) and (e) of the GDPR, in 
order, for example, to respond to a legitimate request for certain data (point (c)), 
to combat harmful behaviour and promote security (point (d)), to research for 
social good and to promote safety, integrity and security (point(e)) as Facebook 
FACEBOOK AND OTHERS 
 
19 
Ireland claims in Annex Bf 12, since, even then, the processing of those data 
cannot always, without exception, be made conditional on the user’s consent, or 
whether any justification for processing off-Facebook data for these reasons can 
generally be ruled out. 
f) If the data processing policies and their implementation are unlawful or 
unjustified, the question whether they also constitute an exclusionary abuse for the 
purposes of the general provision of Paragraph 19(1) of the GWB [Or. 24] to the 
detriment of competitors on the market for social networks for private users or on 
other markets would no longer be relevant. 
g) If, and in so far as, the processing of off-Facebook data can only be justified 
by consent, Question 6 seeks to clarify whether it is actually possible for users to 
give effective consent within the meaning of Articles 6(1)(a) and 9(2)(a) of the 
GDPR to a dominant undertaking such as Facebook Ireland, as required by the 
Federal Cartel Office in its order to remedy the alleged breach, or whether the 
requirement under Article 4(11) of the GDPR for consent to be given freely can 
never be met vis-à-vis a dominant undertaking, even when performance of the 
contract does not depend on consent to the processing of data. This might be 
suggested by the first sentence of recital 43. 
2. Clarification of the questions referred is not rendered superfluous by the fact 
that the Federal Cartel Office based its order in the appeal proceedings 
‘additionally’ (sentence 88 of the statement of defence) on the grounds of the 
Federal Court of Justice’s decision in the preceding summary proceedings 
(Decision of 23 June 2020 KVR 69/19, available from JURIS – Facebook 
[ECLI:DE:BGH:2020:230620BKVR69.19.0]), according to which the processing 
of user data from other group services and Facebook Business Tools imposes 
additional services on Facebook.com users, which they ‘may not want’; the terms 
of service objected to would not be imposed if competition were functioning 
effectively, but are likely to impede competition and, after a comprehensive 
assessment of the balance of interests, the additional services are considered to be 
abusive, particularly as they cannot not be justified under the GDPR. The order 
cannot be upheld on these grounds, largely because the Federal Cartel Office’s 
findings did not provide the required evidence that the data processing operations 
are likely to impede competition. This could be considered a serious possibility 
only with regard to the processing of Instagram data; however Question 7, and 
possibly Questions 3 to 5, of the request must be clarified before a decision can be 
made on that point. 
a) Since the Federal Court of Justice appears to assume that the Federal Cartel 
Office can include this justification in its order [Or. 25] in the appeal proceedings, 
although the allegation of abuse would then be based on facts other than a breach 
of the GDPR and the user consent required in the operative part would therefore 
not be consent within the meaning of the GDPR, but a different consent, possibly 
in addition to the consent to be granted under the GDPR, the Chamber will also 
take account of this justification in its examination of the order. 
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b) The Federal Cartel Office has, however, largely failed to make the necessary 
determination in respect of the requirement that the processing of off-Facebook 
data must be likely to impede competition. This would require evidence of a 
potentially anti-competitive effect – on the network market; on the network itself, 
because of increased network effects or product improvement, for example; on 
advertising, because of the detailed data held; or on advertising markets or third 
markets (regardless of how they are defined in individual cases) – while the 
practice of an undertaking in a dominant position cannot be characterised as 
abusive in the absence of any anti-competitive effect on the market (see judgment 
of 6 December 2012, Astra Zeneca, C-457/10 P, paragraph 112, available from 
JURIS ; judgment of 17 February 2011, TeliaSonera, C-52/09, paragraph 64, 
available from JURIS ). 
Since Facebook Ireland does not use the WhatsApp data of Facebook.com users 
on Facebook.com for personalisation and product purposes, and, by its own 
account, does not intend to do so in Europe either, it is not clear, and has not been 
established by the Federal Cartel Office, that the processing of WhatsApp data 
could in any way impede competition on the network market, on an advertising 
market or on a market for Messenger services. Nor has the Federal Cartel Office 
determined the extent to which Oculus data of Facebook.com users are used for 
the purposes of the Facebook.com network and would be likely to impede 
competition on the network market, on a relevant advertising market or on the 
market on which Oculus is provided. The processing of data from Facebook 
Business Tools ‘may’ really only ‘not be wanted’ by Facebook.com users who do 
not click or tap on the social plugins (Like, Share), do not use Facebook Login or 
Account Kit and have not consented to be shown personalised advertisements. 
However, the Federal Cartel Office has also failed to establish the extent to which 
data from Facebook Business Tools that are processed for purposes other than the 
personalisation of Facebook.com, the seamless use of Facebook products and [Or. 
26] to show personalised advertisements, are likely to impede competition on the 
network market, on an advertising market or on third markets, particularly as users 
can also use the OFA function to disconnect these data from their Facebook 
account. 
c) Only the processing of the Instagram data of Facebook.com users is really 
likely to impede competition, because it is used to personalise Facebook.com by 
suggesting people whom users follow on Instagram to them and, in that respect, 
can increase the network effects, and because it is used on Facebook.com in 
conjunction with the user’s Facebook.com data, for example, for advertising 
purposes and for product improvement. The answer to the question whether data 
would be processed across services in this way, without the separate consent of 
users, if there were effective competition on the social networks market and, in 
particular, the comprehensive assessment of the balance of the interests required 
to establish whether Facebook Ireland’s conduct is abusive in terms of both user 
exploitation and restriction of competition (see BGH, decision of 23 June 2020, 
Facebook, KVR 69/19 [ECLI:DE:BGH:2020:230620BKVR69.19.0], paragraph 
98 et seq. available from JURIS) hinges on whether the Federal Cartel Office can 
FACEBOOK AND OTHERS 
 
21 
establish that the processing of data, at least for this purpose, breaches the GDPR, 
which Question 7 seeks to clarify, and, furthermore, whether it breaches the 
GDPR because Facebook Ireland uses methods different from those governing 
normal competition between products or services on the basis of supplies by 
economic operators, which Questions 3 to 5 seek to clarify (see judgment of 
6 October 2015, Post Danmark, C-23/14, paragraph 29 et seq.; judgment of 
6 December 2012, Astra Zeneca, C-457/10, paragraphs 74 and 75, available from 
JURIS). 
[…]