Bundeskartellamt gives users of Google services better control over their data

Alphabet Inc., Google’s parent company, gives users better choice as to how Google processes their data according to Commitments undertaken by Google. The Commitments are the result of a proceeding conducted by the Bundeskartellamt based on the new instrument under competition law, which allows the Bundeskartellamt to intervene when competition is threatened by large digital companies (Section 19a of the German Competition Act, GWB). The new provision was introduced in 2021. The proceeding is a testament to the close cooperation between the Bundeskartellamt and the European Commission on the way to achieving more competition and fair markets in the digital sector.

Andreas Mundt, President of the Bundeskartellamt: “Data are key for many business models used by large digital companies. The market power of large digital companies is based on the collection, processing and combination of data. Google’s competitors do not have these data and are thus faced with serious competitive disadvantages. In the future users of Google services will have a much better choice as to what happens to their data, how Google can use them and whether their data may be used across services. This not only protects the users’ right to determine the use of their data, but also curbs Google’s data-driven market power. Large digital companies offer a wide range of different digital services. Without the users’ free and informed consent the data from Google’s services and third-party services can no longer be cross-used in separate services offered by Google or even be combined. We have made sure that Google will provide a separate choice option in the future.”

Google’s Commitments concern situations where the company would like to combine personal data from one Google service with personal data from other Google or non-Google sources or cross-use these data in Google services that are provided separately. Such an obligation will already result from the DMA for Google services which have recently been designated by the European Commission under the DMA (see also: Press release designates decision of the European Comission). Relevant core platform services listed in the Commission's designation decision are thus not covered by the Commitments. This applies to Google Shopping, Google Play, Google Maps, Google Search, YouTube, Google Android, Google Chrome and Google's online advertising services. In addition to these services, Google’s Commitments provided to the Bundeskartellamt concern the processing of data across services involving more than 25 other services (including Gmail, Google News, Assistant, Contacts and Google TV).

In the future Google will have to provide its users with the possibility to give free, specific, informed and unambiguous consent to the processing of their data across services. For this purpose Google has to offer corresponding choice options for the combination of data. The selection dialogues must be designed so as not to guide users manipulatively towards cross-service data processing (avoiding “dark patterns”). Where data are not actually processed across services and Google’s data processing terms explicitly make this clear, Google will not have to offer choice options. Any obligations under the General Data Protection Regulation remain unaffected by these obligations.

Andreas Mundt: “Our proceeding shows that the Digital Markets Act and Section 19a GWB complement each other in a useful way. We cooperated with the European Commission throughout the proceeding and will also coordinate any further enforcement measures within the framework of the European Competition Network. The platform regulation pursuant to the Digital Markets Act by far does not cover all services offered by the companies which have been designated as
gatekeepers, and it does not cover all competition issues either. For this reason it remains important to resolutely apply competition rules in parallel to the enforcement of the DMA.“

By cooperating closely, the Bundeskartellamt and the European Commission also intend to give Google the possibility to proceed in a uniform manner. The requirements for sufficient choice to be offered pursuant to Google’s Commitments essentially equal those under the DMA. The Bundeskartellamt also exchanged information with the German data protection authorities.

Background information:
The proceeding regarding Google’s data processing terms is based on the relatively new provisions under Section 19a GWB, which have been in force since January 2021. Pursuant to these provisions, the Bundeskartellamt can prohibit, in a two-step approach, companies which are of paramount significance for competition across markets from engaging in certain anti-competitive practices. Besides the proceeding which is now concluded, the Bundeskartellamt is also conducting further proceedings against Google (Alphabet), Amazon, Apple, Facebook (Meta) and Microsoft.

In its decision of 30 December 2021 the Bundeskartellamt determined in a first step that Alphabet Inc. is of paramount significance for competition across markets. The proceeding regarding Google’s data processing terms was initiated in parallel in May 2021. At the European level, the Digital Markets Act (DMA) has been in force since 1 November 2022 and has become applicable as of 2 May 2023. Article 5(2) DMA contains similar provisions to the German competition regulations under Section 19a(2) sentence 1 no. 4a GWB, which was inspired by the Bundeskartellamt’s Facebook proceeding. The Bundeskartellamt and the European Commission cooperated closely in the course of the proceeding. In early September 2023 the European Commission designated Alphabet as a “gatekeeper”. Effective March 2024 Alphabet has to comply with the obligations under the DMA with regard to its services Google Shopping, Google Play, Google Maps, Google Search, YouTube, Google Android, Google Chrome and Google’s online advertising services. The Bundeskartellamt’s decision to declare Google’s Commitments binding essentially extends Google’s obligations under Article 5(2) DMA to further Google services and thus makes Alphabet subject to “further obligations” within the meaning of the DMA. The Bundeskartellamt and the European Commission will continue to coordinate their future enforcement activities closely and cooperate in order to facilitate an effective interplay between competition law and the DMA.

The Bundeskartellamt's public decision is available here.