독일 경쟁법상 거래조건남용의 판단과 시사점

In the Facebook case, the issue is whether Facebook’s integration of user data on SNS with data obtained through visits to other Internet sites is an abuse of transaction terms. The Federal Cartel Agency decided Facebook’s actions as a violation of the EU’s DSGVO and the German Competition Restriction Prevention Act. In response, the Düsseldorf High Court said there was a serious problem with the competition authorities’ decision. The Supreme Court again ruled in support of the Federal Cartel Agency’s decision. The Federal Cartel Agency’s analysis of this case offers several implications. ① In the case of digital platforms such as Facebook, consumers enjoy services free of charge, while the operator collects, accumulates, and processes consumer data based on the terms and conditions set by him to make profits in the advertising market. Such a free market is also a ‘market’ under the competition law. ② Constitutional rights(self-determination) are an important factor in the ‘imprisonment of profits’ between the parties to the transaction to determine whether they are abused. The act of unilaterally setting the terms of the transaction is an infringement of constitutional rights by other party decisions. ③ This decision regarded the abuse regulation provisions under the Competition Restriction Prevention Act as one of the general provisions under civil law. In the existing Supreme Court ruling, which recognized abuse in relation to unfair provisions under civil law, the abuse was recognized by changing the unfair provisions into data protection violations. Germany’s decision and precedent on the Facebook case also have implications for the interpretation of our Fair Trade Act, which could serve as a factor to consider, especially in digital platform regulations.