NEWSLETTER-2019-metin

285 PERSONAL DATA PROTECTION of exploitative business terms by the FCO 28 . The FCO has not imposed a monetary fine on Facebook. In this case, it seems that the FCO has not focused on imposing fines to punish infringements, but to change the future behaviour of Facebook 29 . The FCO may, however, decide to impose a fine in the event of recurrent abusive behaviour, or in cases with a high potential for significant harm 30 . Coexistence of Competition and Data Protection Law In this case, the FCO closely examined the relation between the German competition law provisions and data protection principles of the GDPR that are mainly enforced by the data protection authorities 31 . Based on the Decision, it appears that the FCO finds indispensable to examine the conduct of dominant companies like Facebook under competition law, also in terms of their data processing procedures 32 . It is the FCO’s view that the European data protection regulations, which are based on constitutional rights can or, considering the case- law of the German Federal Court of Justice ( VBL-Gegenwert and Pechstein cases), must be taken into account when assessing whether data processing terms are appropriate under competition law 33 . As in- terpreted by the FCO, the regulations in the GDPR do not rule out the FCO ’s assessment on whether data processing terms infringe upon the GDPR 34 . Also, during the proceeding, the FCO had contact with data protection authorities, none of which considered they had exclusive competence 35 . Should a dominant company like Facebook make the use of its service conditional upon users granting the company extensive per- mission to process their personal data 36 , this can be considered to be “exploitative business terms” and raise data protection concerns, as 28 Please see fn. 27. 29 Background information, p. 7. 30 Please see fn. 30. 31 Decision, p. 8. 32 Please see fn. 31. 33 Please see fn. 31. 34 Please see fn. 31. 35 Decision, p. 9. 36 Background information, p. 6.