Case C-643/25, Verbraucherzentrale Bundesverband – is 'free' still free if you pay in data?
The question is one sentence long and the answer will decide whether a business model that runs half the internet may describe itself in one word.
Facts
The Bundesverband der Verbraucherzentralen — Germany’s federation of consumer organisations — is pursuing Meta Platforms Ireland Limited before the Bundesgerichtshof on an appeal on a point of law. The dispute concerns Meta’s description of its service as free of charge. Point 20 of Annex I to Directive 2005/29/EC lists, among the commercial practices that are unfair in all circumstances, “describing a product as ‘gratis’, ‘free’, ‘without charge’ or similar if the consumer has to pay anything other than the unavoidable cost of responding to the commercial practice and collecting or paying for delivery of the item”. The federation’s position is that a user of Meta’s services does pay — in personal data and in consent to its commercial use. The Bundesgerichtshof asks whether that is a “cost” within the meaning of point 20.
Questions Referred
Does the term ‘cost’ within the meaning of point 20 of Annex I to Directive 2005/29/EC, in conjunction with Article 5(5) thereof, also cover the disclosure of personal data and consent to their use for commercial purposes?
Sources
OJ notice C/2026/282 (EUR‑Lex) · Case file on CURIA · Directive 2005/29/EC · Directive (EU) 2019/770
Comment
Annex I is the Directive’s blacklist. Article 5(5) says its entries “shall in all circumstances be regarded as unfair”, which means that if data is a cost, the word “free” on a data-funded service is unlawful without any inquiry into whether consumers were actually misled. That is what makes a one-line reference consequential: there is no proportionality stage to soften the answer.
Union law has already said, in two different places, that data is a form of payment. Directive (EU) 2019/770 on digital content applies, by its Article 3(1), “where the trader supplies or undertakes to supply digital content or a digital service to the consumer, and the consumer provides or undertakes to provide personal data to the trader” — the legislature’s own acknowledgement that a contract can be paid for in data. And in Case C‑252/21, Meta Platforms and Others (ECLI:EU:C:2023:537) the Grand Chamber, holding that users must be able to refuse processing that is not necessary for the contract “without being obliged to refrain entirely from using the service”, added that they must be offered, “if necessary for an appropriate fee, an equivalent alternative not accompanied by such data processing operations”. A fee is the alternative to data; the Court itself has treated the two as interchangeable. The federation’s argument is that what the Court described as the alternative to a price is itself a price.
The counter-argument is textual and not weak. Point 20 speaks of the consumer having “to pay”, and its examples — the cost of responding, of collecting, of delivery — are sums of money. A consumer who hands over data has not paid in the ordinary sense, and reading “pay” to include every non-monetary counter-performance would extend a blacklist provision, which is meant to be applied mechanically, into territory that needs judgment. Meta will also say that its users are told, at length, what happens to their data; but that argument belongs to Articles 6 and 7 on misleading practices, not to Annex I, where the only question is whether the word was used and whether the condition was met.
Whichever way the Court goes, the answer travels well beyond one social network. Every ad-funded service that describes itself as free — search engines, email, maps, messaging, most of the mobile app economy — uses the same word on the same basis. An affirmative answer would not outlaw the model; it would outlaw the adjective, and require the trade to say instead what the Court said in 2023: that the price is data, and that a monetary alternative may be offered in its place.