TMT Newsletter | May 2025

Outlook

On 03.06.25, the EGC will hear Meta's action against the EUKOM's decision to designate in particular "Facebook Messenger" and "Facebook Marketplace" as core platform services under the DMA (T-1078/23). On 05.06.25, the CJEU will hear a case on, inter alia, the requirements for, and consequences of, abusive information claims under the GDPR (C-526/24). On the same day, GA Szpunar will publish his opinion on, inter alia, whether a collecting society violates Art. 102 TFEU by not taking into account the actual room occupancy for a hotel tariff (C-161/24). On 10.06.25, the CJEU will hear a case on the extent to which freedom of expression justifies the parodic use of a trademark (C-298/23). On 12.06.25, the CJEU will hear Amazon's action against the EUKOM's decision on the VLOP designation under the DSA (T-367/23). On the same day, GA Kokott will publish her opinion on Google's appeal against the EGC decision, which had largely confirmed the EUKOM decision on certain contractual terms in the Android operating system (C-738/22 P). Also on the same day, GA Szpunar will publish his opinion on the Italian implementation of the press publisher law (C-797/23). On 17.06.25, GA Emiliou will publish his opinion on the pastiche exception under copyright law (C-590/23), following a referral from the BGH (Metall auf Metall V). On 19.06.25, the CJEU will hear the question of whether a tethered download, in which the stored file is linked to a valid subscription, is subject to remuneration as a private copy (C-496/24).

CJEU - Court not responsible for disclosure of judicial officer's assets

A supervisory authority had requested a court to order the disclosure of the assets of a judicial officer. That court is not the controller, as it neither determines the purpose nor the subject of the asset disclosure, but only acts upon request. It is also not a supervisory authority within the meaning of Art. 51 GDPR, as it has no powers under Art. 58 GDPR (judgment C-313/23 and others).

CJEU - Online comparison portals may assign grades

Such an evaluation and grading system would only be permissible as comparative advertising under the strict conditions of Art. 4 of Directive 2006/114/EC. However, comparative advertising only exists if the advertising originates from a competitor. Since comparison portals do not substitute the actual contracts, but only compare and possibly mediate, they are not competitors to the contract providers and are therefore allowed to rate the contract tariffs (judgment C-697/23).

CJEU - Payment method can constitute an "offer to promote sales"

As such, an indication such as "convenient purchase via invoice" is also subject to the information requirements of Art. 6 lit. c) E-Commerce Directive. The provider must therefore state the exact conditions of the payment method in an easily accessible and unambiguous manner. However, the information obligations only apply if the payment method provides the addressee with an objective and certain advantage, the extent of which is irrelevant as long as it can influence the purchasing behavior of the addressee (judgment C-100/24).

CJEU GA - No rule-exception-relationship between copyright and design protection

Also in response to a referral from the BGH (I ZR 96/22), GA Szpunar stated that no higher requirements for originality apply to works of applied art than to other types of work. In general, there must be a creative decision that is reflected in the work. The intention of the creator as well as the reception of the art world are at most supplementary indications for such creative decision (applications C-580/23, C-795/23).

EUCOM - TikTok advertising archive not DSA-compliant

In a preliminary assessment, EUCOM considers the advertising archive provided by TikTok to be in breach of Art. 39 DSA. According to EUCOM, there is a lack of information on the content and the client of the advertisements. The functionality is also inadequate, as there is no adequate search tool. (EUKOM PM of 15.05.25).

EUCOM - Relief planned for SMEs from certain GDPR regulations

As part of a strategy for a simplified internal market, EUCOM is proposing to raise the threshold for maintaining records of processing activities under Art. 30 para. 5 GDPR from 250 to 750 employees. In addition, the exemption for companies whose data processing poses a risk to the rights and freedoms of data subjects should only apply in the event of a high risk (EUKOM PM, proposal of 21.05.25).

EUCOM - Possible commitments of Microsoft published

EUCOM had accused Microsoft of inadmissibly bundling the communication and collaboration platform Teams with its other products (including Office 365) (EUKOM PM of 27.07.23). To end this investigation, Microsoft has now offered EUCOM, inter alia, to offer competitors better interoperability with Microsoft products. Customers should be able to transfer their teams data to other communication platforms (EUKOM PM of 16.05.25).

BAG - Exceeding the scope of a company agreement can result in data protection breach

For the trial operation of a personnel management software, a company agreement provided for the processing of only certain personal data. The processing of further data during the test was not covered by this: In accordance with the CJEU's decision in the preliminary ruling proceedings (C-65/23), only such data processing is "necessary" and therefore lawful which remains within the scope of the company agreements (BAG PM of 08.05.25).

Higher Regional Court of Cologne - AI training with personal data from public profiles permissible

The court thus rejects – after a summary review, but final – the Consumer Center of Northline-Westphalia's application for a preliminary injunction against Meta. Meta has a legitimate interest within the meaning of Art. 6 para. 1 lit. f) GDPR and has taken effective accompanying measures (early announcement and information on the possibility of objection). In the absence of a "merging" of data, a violation of Art. 5 para. 2 DMA is also ruled out (OLG Köln PM v. 23.05.2025).

Regional Court of Cologne - High requirements for price changes for online subscriptions

An online streaming service had displayed the button "Agree to price increase" to its users. Despite the user clicking this button, no contract for a price increase was concluded: In view of the provider's description that the monthly price would increase, the user was not acting voluntarily, meaning that the button was not an offer to amend the contract. A unilateral right to increase the price provided for in the general terms and conditions is ineffective as it is inappropriate (judgment of 15.05.25; final).

Administrative Court of Berlin - Blocking order against access provider confirmed in summary proceedings

The Berlin-Brandenburg Media Authority had ordered an internet access provider to block access to two German-language websites with pornographic content. The court ruled that the applications for injunctive relief filed against this by the websites' operator were inadmissible: It lacked an interest in legal protection as it disregarded previous prohibition orders directed at itself regarding the dissemination of pornographic content without adequate protection of minors (VG Berlin PM of 29.04.25; not final).