Wettbewerbsrecht und Ökonomie im digitalen 21. Jahrhundert: Zugleich ein Beitrag zur Intel-Entscheidung des Europäischen Gerichtshofs und zum Facebook-Verfahren des Bundeskartellamts

The relationship between competition law and economy provides reason for a continuous reflection. As commonly known, The European Commission aims to orientate competition law towards assessments on an economic case-by-case basis by implementing the more economic approach. The central expression of this approach is the as efficient competitor test, according to which the competition rules – in simple words – can only be applied to a conduct, which is evidently harmful for consumers. The Intel-decision of the European Court of Justice has shown that achieving economically correct individual case results by applying competition law may already come to its limits in an analogous economy. These limits are more apparent in the digital economy, since the relevant business-models are not yet fully assessed in terms of competition law’s perspective. Based on a juridical interpretation of competition law, business conducts are inadmissible as soon as they impair the eligible freedom positions and the resulting competitive processes. Therefore, it is not necessary to prove an economic damage to the consumers in a specific case. The practical significance of the competition rules’ orientation towards legal criteria becomes evident in the German Federal Cartel Office’s Facebook-case, where the question arises, if a breach of fundamental legal principles, especially the general right of privacy, constitutes an abuse of market power.