The General Court of the EU provisionally suspends several information requests from the European Commission to Facebook

On July 24, the General Court of the European Union (“GC”) provisionally suspended several information requests issued to Facebook by the European Commission (“Commission”) as part of several investigations into how its marketplace competes with classified advertisement services of other operators and into its data collection and processing practices.

The Court provisionally suspended the requests to ensure the disputed information is not disclosed, infringing the fundamental right to privacy of the individuals to which the data in question refers, at least until the GC issues a final ruling on the application of Facebook for interim measures and, subsequently, on the merits of the appeal of Facebook against those information requests.

The investigation of the European Commission into the practices of Facebook

In December, the Commission confirmed that it had opened a preliminary investigation into the data collection practices of Google and Facebook (AT.40628 — Facebook Data-related practices). The investigation specifically related to how these companies collect, process, use — including for advertising purposes — and monetize data.

Even before this confirmation, the Commission had been gathering information on these practices and on how the marketplace of Facebook competes with classified advertisement services of other operators (Case At.40684 — Facebook Marketplace) for months. It had asked competitors, clients and employees of Facebook to complete several questionnaires to clarify the true scale of the data network of this company and its impact on the market.

The questionnaires contained questions on how Facebook acquires data, whether there are any restrictions in the use of the data collected, the existence of commercial agreements permitting access to the data collected by other companies (and vice versa), the impact on advertisers if they were unable to market their services on Facebook, the real possibility of these advertisers negotiating better commercial conditions with Facebook, or whether Facebook has an insurmountable competitive advantage with regard to data and uses contractual clauses to consolidate that power, among many other points.

As part of these investigations, the Commission also sent several information requests to Facebook itself. Facebook cooperated and provided a huge quantity of documents. However, with regard to two of the most recent requests (one in relation to each of the two stated investigations), Facebook considered the requests of the Commission too broad since it requested delivery of any document containing certain search terms, including some as ambiguous as “not good for us,” “for free,” “shut down” and “big question”.

According to Facebook, these information requests were exceptionally broad and required it to deliver to the Commission “internal documents that are irrelevant to the investigation” and “irrelevant documents that are personal and/or private in nature” and not, therefore, necessary for the investigation.

Furthermore, according to Facebook, to comply with those requests it would have to provide extremely sensitive information such as private medical and financial data of employees, documents relating to personal wills or company security assessments. To mitigate the risks of sharing that information, Facebook offered to give the Commission access to it through a data room. However, the Commission allegedly rejected this invitation.

Following such events, on July 15, Facebook filed two appeals (T-451/20 and T-452/20) before the GC against these information requests, requesting their annulment (or, alternatively, partial annulment) and their interim suspension. Facebook essentially based its appeals on four grounds: (i) the appealed decision in case AT.40628 — Facebook Data-related practices — did not establish the subject of the investigation sufficiently clearly; (ii) requested irrelevant or personal documents in both investigations infringed the principle of necessity and the rights of defense of Facebook, constituting a misuse of power by the Commission; (iii) the overly broad scope of the decisions infringed the fundamental right to privacy, the principle of proportionality and the fundamental right to good administration; and (iv) the appealed decisions failed to explain why the search terms would only identify those documents necessary for the investigation, or why a relevance review by external, EEA qualified lawyers had not been not permitted, as Facebook requested in the appeals.

The decision of the GC

The orders of the GC have not been published and neither Facebook nor the Commission have confirmed the decisions. However, based on the public information available (see the  news stories here, here or here), using his power to temporarily grant an interim measure even before the observations of the opposite party have been submitted, the President of the GC provisionally suspended the information requests challenged by Facebook.

According to the articles published, the GC insisted that, since the information requests of the Commission can include personal information, the confidential of that information is essential, particularly in situations where the information obtained does not prima facie appear to be related to the investigation of the authority. Furthermore, the GC seems to have reminded the Commission that when it sends an information request it must precisely specify the information requested, the legal basis authorizing it to do so and the necessity and purpose of that request.

The GC believes the interim suspension is necessary to ensure the disputed information is not disclosed, infringing fundamental right to privacy of the managers and employees of Facebook, until the GC first rules on the application of Facebook for interim measures — which would be rendered pointless if this information were disclosed — and then on the merits of the appeals, taking into account the confidentiality protection measures offered by the Commission.

The President of the GC (or the GC itself if the President so decides) can only adopt the final decision on the requested interim measure once it has received and analyzed the observations of the Commission. Furthermore, the provisional decision of the President can be modified or revoked at any time at the request of the parties or ex officio.

Once the Commission has had the opportunity to submit its observations, the GC will decide on the application for interim measures of Facebook and then on the merits of the case. Both decisions may be appealed before the Court of Justice of the European Union.

Conclusion

The preliminary investigation into the data collection practices of Facebook and Google had already generated doubts among experts in Europe with regard to a possible encroachment on the competences of the European Data Protection Supervisor when it was announced in December. In response, Commissioner Vestager assured that neither the investigation nor the information requests overstepped the competences of the Commission.

The interim measure provisionally granted by the GC on this occasion highlights, on two levels, the judicial protection of the rights of the parties vis-à-vis the procedural actions of the Commission. First, it highlights the agility that is allowed to EU courts with regard to the adoption of measures required to safeguard the fundamental rights -and, in particular, the rights of defense- of the parties. Second, it evinces the high level of scrutiny that these courts exercise on the investigation powers of the Commission, as already evidenced in the judicial review of the Commission inspections of the Ceské dráhy headquarters (analyzed on this blog here) or the reiteration by EU courts of the imperative of protection against arbitrary or disproportionate interventions by public authorities as a general principle of EU law (see Prysmian and Prysmian Cavi e Sistemi Energia/Commission, T-140/09), as well as the need to sufficiently justify investigation orders and information requests (see HeidelbergCement/Commission, C-247/14 P).

Authors: María López Ridruejo and Marie Trapet Llamas.