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2016-12-20 - Facebook provided misleading information about WhatsApp takeover : breach of procedural rules, no impact on commission’s decision to clear the merger

Breaking news :

Facebook/ WhatsApp : Misleading information during the investigation under the EU merger regulation

The European Commission has sent a Statement of Objections to Facebook alleging the company provided incorrect or misleading information during the Commission\'s 2014 investigation under the EU Merger Regulation of Facebook\'s planned acquisition of WhatsApp. When reviewing Facebook\'s planned acquisition of WhatsApp, the Commission looked, among other elements, at the possibility of Facebook matching its users\' accounts with WhatsApp users\' accounts. In its notification of the transaction in August 2014 and in a reply to a request of information, Facebook indicated to the Commission that it would be unable to establish reliable automated matching between the two companies\' user accounts. While the Commission took this information into account in its review of the transaction, it did not only rely on that information when clearing the transaction

Subsequently, in August 2016, WhatsApp announced, among other updates to its terms of service and privacy policy, the possibility of linking WhatsApp user phone numbers with Facebook user identities. WhatsApp explained that this was done with a view to improving the service by, for example, allowing Facebook to offer better friend suggestions or displaying more relevant ads on WhatsApp users\' Facebook accounts.

In today\'s Statement of Objections, the Commission takes the preliminary view that, contrary to Facebook\'s reply during the merger review, the technical possibility of automatically matching Facebook users\' IDs with WhatsApp users\' IDs already existed in 2014. At this stage, the Commission therefore has concerns that Facebook intentionally, or negligently, submitted incorrect or misleading information to the Commission, in breach of its obligations under the EU Merger Regulation.

The current investigation is limited to the assessment of breaches of procedural rules. There is not impact on the Commission\'s October 2014 decision to clear Facebook/WhatsApp. If the Commission\'s preliminary concerns in this case were confirmed, the Commission could, impose a fine of up to 1% of Facebook\'s turnover (under Article 14(1) of the EU Merger Regulation).

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