By Ruprecht Podzsun (D’Kart)
Before today’s decision by the Bundesgerichtshof, the German Federal Supreme Court (BGH) in the Facebook case, we in my team had calculated the chances for the Bundeskartellamt, the national competition agency. Let’s put it this way: I would not have bet anything like a good original ORDO volume that the Bundeskartellamt would win. Reason is: The Düsseldorf Higher Regional Court with its 1st Senate under Jürgen Kühnen had set the bar damn high for the BGH. We had calculated that it would be very difficult to overrule the OLG for two reasons.
But first a reminder for the not so regular readers of this blog: in February 2019, after an investigation lasting about three years, the Bundeskartellamt issued a decision against Facebook that was over 300 pages long. We had reported about it in this blog here and here and here and here. In August 2019, the Cartel Office’s decision was overturned by the Düsseldorf Higher Regional Court in summary proceedings involving the order of suspensive effect – with pithy words for which the 1st Cartel Senate is well known. We reported on this here. This decision was now subject to review by the BGH, still in interim proceedings…
