German Federal Court of Justice (BGH), order of 23 June 2020, KVR 69/19, Facebook (antitrust proceedings)
Interim antitrust proceedings before the BGH concerning Facebook's collection of data: reference points for the assessment under data protection law of Article 6(1)(b) GDPR, in particular the narrow interpretation of the performance characteristic of the contract.
1 Overview
In interim proceedings, the antitrust panel of the German Federal Court of Justice (BGH) essentially upheld the prohibition order issued by the German Federal Cartel Office (Bundeskartellamt) against Facebook for abusive exploitation of a dominant market position under § 19(1) of the German Act against Restraints of Competition (GWB). The objection concerned the terms of service by which Facebook made the use of the social network conditional on the processing and combination of data from "off-Facebook" sources (Instagram, WhatsApp, Oculus, third-party sites with Facebook pixels, like buttons, etc.) with the user data generated on facebook.com, without separate consent.
Reference: BGH, order of 23 June 2020, KVR 69/19, ECLI:DE:BGH:2020:230620BKVR69.19.0
2 Relevance for data protection law
The order is framed in terms of competition law, but through its interpretation of the abuse of terms and conditions it has a direct knock-on effect on data protection law. The panel uses the value judgments of the GDPR as the benchmark for determining whether the terms of service are exploitative vis-à-vis consumers.
3 Narrow interpretation of the performance characteristic of the contract
The key statement for Article 6(1)(b) GDPR: the performance characteristic of the contract of a social network is to be construed narrowly. The provider may not unilaterally determine that the analysis and combination of user data originating outside the platform for the purpose of a "personalized experience" forms part of the main obligation owed. In practical terms, users are faced with an "all or nothing" decision, even though the merging of data across services is not objectively necessary for the use of the network itself.
4 Choice available to users
The panel emphasizes that users must have a choice between use with and use without the combination of data across services. Where that choice is lacking, the design of the terms of service is already exploitative under competition law, and, as a matter of data protection law, the processing cannot be based on Article 6(1)(b) GDPR for want of necessity.
5 Significance and subsequent proceedings
The decision strengthened the Bundeskartellamt's power of enforcement under competition law and laid the basis for the later preliminary ruling proceedings before the CJEU. The CJEU confirmed the narrow interpretation set out in the BGH order and at the same time tightened the limits of necessity under Article 6(1)(b) and (f) GDPR (CJEU, judgment of 4 July 2023, C-252/21, Meta Platforms/Bundeskartellamt).
About the author
About the author
This article was written by Dr. Thomas Helbing, specialist lawyer for IT law in Munich.
Since 2020 and continuously through today (2026), Handelsblatt has recognized Dr. Helbing as one of "Germany's Best Lawyers" in IT law and data protection law.
According to Kanzleimonitor.de (2024 to 2026 editions), he ranks among the leading lawyers for data protection and IT law and is listed among the top 100 lawyers in Germany (2024/25). Kanzleimonitor is considered a particularly meaningful market study because it is based exclusively on personal recommendations from in-house counsel.
Dr. Helbing has many years of advisory experience in data protection and IT law and advises clients of all sizes, from startups through fast-growing SaaS companies and unicorns to international corporate groups.
His professional background covers the full spectrum of IT and technology law practice. He began his career at a major international law firm, then gained in-house experience at a DAX-listed company, and is himself an entrepreneur and founder of several digital ventures. He also has hands-on programming experience, which allows him to understand technical systems, software architectures and digital business models not only from a legal perspective but also from a technical one.
For many years, his clients have included technology companies and SaaS providers, leading German research institutions and a systemically important German bank. His advisory focus lies in particular on GDPR compliance, the data economy, SaaS, AI regulation and IT contract law.
CJEU, judgment of 25 November 2021, C-102/20, StWL Städtische Werke Lauf a.d. Pegnitz
Concept of direct marketing under the ePrivacy Directive; advertising displayed in an email inbox in the guise of messages constitutes direct marketing and requires consent.
CJEU, judgment of 19 October 2016, C-582/14, Breyer
Dynamic IP addresses as personal data; processing to ensure the functionality of publicly accessible websites as a legitimate interest under Article 7(f) of the Data Protection Directive.