Consumers’ "Decision-Making Sovereignty”: Challenging Business Models in the Data Economy (after the German Supreme Court in Facebook)

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Cristina Caffarra introduced the discussion on consumers’ sovereignty and more specifically on exploitation as an antitrust infringement. Exploitation, in addition to the concepts of foreclosure and leveraging, should be further developed as regulatory tools, in particular considering the exceptional size of digital platforms and their bargaining power as opposed to that of the businesses who operate on the platforms and that of the users of the platforms. 

Ms Caffarra noted that the Facebook decision rendered by the German Federal Supreme Court has addressed the notion of limiting consumers’ freedom of choice and restricting consumers’ sovereignty. She reminded that, in 2019, when the Bundeskartellamt adopted its decision on the Facebook case, it was seen as a fairly forward-looking agency: excessive processing of data could amount to a violation of competition law. The Supreme Court upheld this decision and put the emphasis on the lack of consumers’ choice as the basis of the abuse of market power.