A brief history of Article 102 TFEU

Today, the Bundesgerichtshof (German Federal Court of Justice) has sided with the Bundeskartellamt against Facebook (see). By doing so, the Court has deemed the absence of causality link between Facebook’s size on the market and its practice irrelevant. Once again, Facebook is being judged for combining WhatsApp, Instagram, and Facebook users’ data without their consent (but for improving these apps). Should I create a startup with two distinct products tomorrow morning, I could do the exact same.

As it follows, here is the brief history of Article 102 TFUE. It had a good run before becoming meaningless. RIP. (Yes, this is just a tiny bit cynical. And overblown, see below ;).

Caveat #1: yes, Continental Can is more complicated than that (as I explain here).

Caveat #2: yes, the Facebook case is not decided on the basis of Article 102 TFUE, but German law. This graphic is projecting how it would look like should the European Commission follow the same standard. Already, German and EU law are not too far apart in this regard (as explained by Rupprecht Podszun).

Caveat #3: yes, the Facebook case is still pending; the decision that came out today is simply about interim measures.

Caveat #4: I couldn’t resist drawing these graphs anyway, as I believe the relevance of Article 102 could be badly impacted.

Thibault Schrepel

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