Exclusionary Conduct in Data-Driven Markets: Limitations of Data Sharing Remedy

Abstract

The natural consequence of finding an infringement of Article 102 TFEU is to offset the harm to consumer welfare by restoring competition through effective remedies. As big data constitutes the most vital resource in data-driven markets, a dominant undertaking can exclude its rivals from accessing user data and thus deprive them of scale in markets that are characterised by network effects. Indeed, the European Commission found Google guilty of excluding its rivals in the Android licensing case by adopting this strategy. It is, however, unclear as to which remedy can most efficiently restore competition in such cases. This paper analyses the viability of mandatory data sharing as a remedy to restore competition in the affected market. The paper approaches this research question from both theoretical and practical standpoints. First, it analyses the viability of mandatory data sharing remedy from legal, economic and, technological perspective, followed by an assessment of such a remedy within the framework of the GDPR. Based on this comprehensive investigation, it concludes that mandatory data sharing is not the optimal solution to remedy loss to consumer welfare. In view of this, reliance can be placed on other behavioural and structural remedies.

Keywords: Exclusionary conduct, big data, remedies, Google, General Data Protection Regulation (GDPR)

JEL Classification: K21, L12, K42