On 20 September 2022, the Court of Justice of the European Union (CJEU) Advocate General's Opinion in case C‑252/21 was published. The case originated in Germany between the the Federal Cartel Office (FCO) and Meta Platforms. The FCO prohibited Meta Platforms from processing data collected according to Facebook's terms of service after finding that the data processing did not comply with the EU General Data Protection Regulation (GDPR) and determining that Meta Platforms was abusing its platforms' dominant position in Germany. Meta Platforms appealed the decision to the Higher Regional Court of Düsseldorf, which referred two questions to the CJEU: Whether national competition authorities have the power to assess the compliance of data processing with the GDPR and whether certain provisions of the GDPR were applied correctly in this case. The Advocate General determined that although a competition authority is not competent to establish a breach of the GDPR, it may, in the exercise of its own powers, take into account the compatibility of commercial practice with the GDPR. The Advocate General further noted that the mere fact that a social network enjoys a dominant position on the national market does not render invalid the consent of the user to the processing of their personal data. Furthermore, the Advocate General noted that the prohibition on processing sensitive personal data might also relate to the data processing at hand. In order for the exemption of that prohibition to apply, users must be aware that they are making their personal data public. The Advocate General's Opinion is not binding on the Court of Justice. The Judges of the Court will begin deliberations and issue a judgment.
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