NEWSLETTER-2019-metin

109 COMPETITION LAW Instagram and WhatsApp, Facebook, as a third party, was processing data from non-Facebook web pages and applications. By combining all of this data, almost a complete Facebook user data system had been created. The decision of the Cartel Office basically examines whether Facebook’s data collection activities should be considered as a viola- tion of competition or not. For this purpose, it was firstly determined whether Facebook is in a dominant position. In calculating Facebook’s market share, the Cartel Office made a distinction between daily active users and monthly active users. In 2018, Facebook had 1.52 billion daily active users and 2.32 billion monthly active users, worldwide. 1 The Cartel Office found that Facebook dominates the social network market in Federal Germany. In terms of the German market, Facebook has a market share of approximately 95%, with 23 million daily, and 32 million monthly, users. Competitive social networks, such as Google+, Snapchat, YouTube, Twitter, Xing and LinkedIn have not been seen in the same relevant product market, as they offer services that are limited as compared to Facebook. In addition, the high market shares of applications, such as Instagram and WhatsApp, which are part of the same economic group as Facebook, were also among the factors strengthening Facebook’s dominant position. Andreas Mundt, Chairman of the Cartel Office, has made a remarkable statement. 2 Andreas Mundt stressed that Facebook, as a dominant undertaking, has a special obligation in terms of compe- tition law, and that it is impossible for Facebook users to switch to other social networks as a practical matter. Mundt said that the fact that users had to allow such intense data collection in order to use Facebook, does not create a reasonable justification considering the market power of the undertaking. This is because users face either allowing this data processing activity, or not being able to benefit from 1 For the Relevant Press Release, see; https://www.bundeskartellamt.de/ SharedDocs/Meldung/DE/Pressemitteilungen/2019/07_02_2019_Facebook. html?nn=3591568 (Access date: 04.10.2019). 2 https://www.bundeskartellamt.de/SharedDocs/Meldung/DE/Pressemitteilun- gen/2019/07_02_2019_Facebook.html?nn=3591568, p. 2 (Access date: 04.10.2019).