A few weeks ago, the Higher Regional Court (OLG) of Cologne rejected an application for preliminary injunctive relief filed by the Consumer Protection Association of North Rhine-Westphalia (VZ NRW). The full text of the decision has since become publicly available in German. A detailed case note will follow shortly on this blog, but some initial procedural aspects are worth highlighting at this stage.
Relationship Between Private and Public Enforcement of the DMA
The consumer association based its request on the German Act on Injunctive Relief (UKlaG), a statute granting standing to qualified associations. Collective redress mechanisms are in principle compatible with private enforcement under the Digital Markets Act (DMA).
In the proceedings before the OLG Cologne, Meta argued that private enforcement should be considered subordinate to the Commission’s enforcement powers. In other words, it posited a hierarchy where private claims must give way to public action by the European Commission.
The court did not follow this view. It relied on Article 42 DMA in conjunction with the Representative Actions Directive (EU) 2020/1828, noting that the interpretation of the DMA must be guided by its textual wording alone. If private enforcement were limited by public enforcement mechanisms, this would undermine the effective application of the DMA. Such a limitation cannot be inferred from the regulation’s language or structure.
International Jurisdiction in DMA Private Enforcement Cases
The OLG Cologne found that it had international jurisdiction pursuant to Article 7 No. 2 Brussels Ia Regulation (Regulation (EU) No 1215/2012). This provision applies to tort claims and determines jurisdiction at the place where the harmful event occurred or is likely to occur.
While the legal basis is correct, the court’s reasoning appears flawed. The OLG stated that jurisdiction was established because the “data processing in question concerns users located in Germany.” However, the alleged infringement under Article 5(2) DMA is not about the mere processing of user data. Rather, it concerns the combination of personal data across services, which is a distinct issue under the DMA’s competition-focused framework.
As a result, the case should have been classified under the principle of ubiquitous jurisdiction (fliegender Gerichtsstand), as the unlawful combination of data is intended to affect a multitude of users and does so simultaneously in several jurisdictions. In other words even forum shopping of Digital Markets Act is possible.
This distinction reveals a conceptual misunderstanding by the court. By construing Article 5(2) DMA narrowly as a data protection rule, the court overlooked its market regulatory function and the broader competition implications of a gatekeeper’s data aggregation practices. The real concern lies in the uncontestable data advantage created by such practices, not the data processing of individual users.
Preliminary Injunctive Relief Also Available in Representative Actions
Where private enforcement is permitted, interim relief must also be available — this includes actions brought under the DMA. In this case, the application for a preliminary injunction was made on the basis of UKlaG, which in turn refers to Section 12(1) UWG (Act Against Unfair Competition). That provision facilitates the demonstration of urgency and implicitly confirms the admissibility of interim measures.
From a doctrinal perspective, this interpretation aligns with the Courage jurisprudence of the CJEU. It would be incompatible with the objective of EU competition law to deny effective redress through interim relief to those harmed by regulatory violations. The right to apply for provisional measures is thus a logical extension of the DMA’s principle of effective enforcement.
