NEWSLETTER-2019-metin

284 NEWSLETTER 2019 defines the product market as a private social network market, with private users as the relevant opposite market side 19 . The relevant geo- graphic market is determined to be Germany. Additionally, pursuant to the FCO’s findings, Facebook has a dominant position in the Ger- man market for social networks for private users and is consequently subject to abuse control under German competition law 20 . The FCO examined the user-based market share of Facebook on the relevant market that exceeds 95 % 21 . When assessing the market share, the FCO considered the amount of time spent intensively us- ing the network as an important indicator of the competitors’ actual market position 22 . However, in accordance with the last amendment to the German Competition Act, the FCO’s assessment of a company’s market power is not only based on its market share 23 . The factors that determine market power are broadened, such as the access to competi- tively relevant data, economies of scale based on network effects, the behaviour of users who can use several different services or only one service, and the power of innovation-driven competitive pressure 24 . In addition to Facebook’s high market share, the above-stated criteria reveal the market power of Facebook 25 . Furthermore, the FCO found that Facebook’s position is further strengthened by direct network ef- fects, and users’ switching to another social network is difficult 26 . Facebook’s Abuse of its Dominant Position By using and implementing the Facebook data policy, Facebook is enabled to collect user and device-related data from sources outside of Facebook, and to combine it with data that is collected through Facebook 27 . This collection and combination of data is found to be an abuse of a dominant position in the social network market, in the form 19 Decision, p. 3. 20 Background information, p. 3. 21 Decision, p. 6. 22 Please see fn. 21. 23 Background information, p. 4. 24 Please see fn. 24. 25 Background information, p.4. 26 Decision, p. 6. 27 Decision, p. 7.