EU-Merger Control & Big Data On Data-specific Theories of Harm and Remedies
Forthcoming, Marco Botta, Josef Drexl (eds.), EU Competition Law Remedies in Data Economy, Springer 2019
74 Pages Posted: 9 Apr 2019 Last revised: 8 Jun 2019
Date Written: May 31, 2019
The focus of the Commission’s last decade decisional practice in big data mergers has been on identifying possible harming effects of the control over exclusive information (absolute foreclosure scenario). Thereby it has centred its analysis on the assessment of the overall availability of data post-merger and thus mostly found no concerns due to the ubiquity and non-rivalrous nature of data. However, these considerations were too short sighted, as additional competition concerns may arise when the accumulation of large piles of data from a huge multitude of sources by digital conglomerates leads to such an advantage that competitors will not be able to match anymore, increasing the likelihood of further anti-competitive strategies (relative foreclosure scenario). Accordingly, the paper firstly addresses the need for an information centric reference point for the analysis of data induced significant impediments of competition (SIEC). It then analyses the approach taken by the Commission so far, identifies the shortcomings and establishes a theory of harm that takes the efficiency offense doctrine and the financial power and portfolio effect theories of harm as a reference point and relate it to a relative foreclosure strategy of the merged group that is specific to data-induced SIEC. The distinction of these two foreclosure scenario levels serves as the basis for further discussion on adequate remedies to tackle the two types of data-induced harming effects. The paper then addresses the intersection of competition law and data protection law and analyses the potential need for a distinction between personal and non-personal data because data protection law might be considered a normative factual remedy that renders personal data specific competition concerns post-merger unnecessary. This is then followed by a parallel analysis related to ex-ante data access regimes being normative factual remedies, e.g. the access to account rule under the Payment Services Directive 2 (PSD2). It then stresses the need for considering formal elements such as conditional remedies that tackle potential issues of a lack of foreseeability due to often-claimed high market dynamics before examining the efficiency and feasibility of a data sharing commitment for both absolute and relative foreclosure scenarios. As essential facility considerations cannot be analogously applied in relative foreclosure cases, we take recourse to criteria established for measuring conglomerate power structures. Accordingly, in relative foreclosure scenario cases we establish two requirements that need to be fulfilled by the undertaking seeking access to data in order to confine a potential erga omnes right and make data sharing legally obtainable.
Keywords: Big data, Tech Giants, Merger Control, SIEC, General Data Protection Regulation (GDPR), Data access regimes, Remedies, Data sharing
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