Beyond Price: Unfair Trading Conditions and Data Collection by Dominant Digital Platforms in the EU

Abstract

This paper examines whether data collection by dominant digital platforms can constitute an abuse of dominance under Article 102(a) TFEU. Drawing on the Facebook Germany case, culminating in the CJEU’s ruling in Meta Platforms v Bundeskartellamt, and the Commission’s findings against Meta under Article 5(2) of the Digital Markets Act, it argues that unfair trading conditions offers a more suitable framework than unfair pricing. The paper proposes a three-step methodology of joint application. In this methodology, the GDPR’s data minimisation and purpose limitation principles and the economic value concept from unfair pricing jurisprudence serve as sequential inputs into a single proportionality inquiry, rather than as separate or cumulative theories of harm. This enables holistic enforcement alongside the GDPR and consumer protection law. The paper further argues that ex ante regulation under the DMA and ex post enforcement under Article 102(a) TFEU are complementary rather than substitutable. Article 5(2) DMA, as interpreted in the Commission’s April 2025 decision fining Meta EUR 200 million, is the appropriate forward-looking framework for preventing excessive data collection by designated gatekeepers. Article 102(a) TFEU nonetheless remains an indispensable safety net for conduct outside the DMA’s targeted scope, conduct pre-dating designation, and undertakings below the gatekeeper threshold.