Limits and Enablers of Data Sharing. An Analytical Framework for EU Competition, Data Protection and Consumer Law

Abstract

Data sharing presents many opportunities in terms of stimulating innovation and creating a level playing field between businesses, but also carries risks by potentially decreasing incentives for data collection and analysis, facilitating collusion between firms or exploiting consumers as well as undermining privacy. The paper maps the limits and enablers of data sharing in the fields of EU competition, data protection and consumer law and illustrates how an optimal regulatory framework for data sharing can maximise the benefits while minimising the risks. The paper sets out an analytical framework for data sharing by outlining how the three regimes complement each other in either limiting or enabling data sharing, and by outlining the tensions within and between these three regimes. Considering their different scope, it is of the utmost importance that the three legal instruments are applied consistently. This means, on the one hand, that any conflict should be alleviated or minimised and, on the other hand, that the instruments should be applied more as complements than as substitutes. Such an objective can only be achieved if the authorities in charge of enforcement of the different legal instruments cooperate closely with each other to ensure consistent and complementary interpretation. The paper concludes that the three horizontal instruments, if implemented effectively, already facilitate or even impose the sharing of data in many circumstances. As a result, the existing horizontal rules should be complemented with new sectoral rules only when they have proved to be insufficient given the particular characteristics of the sector.

Keywords: data portability, data access, innovation, competition, data protection, consumer protection, collusion, privacy

JEL Classification: K20, K21, K30, L43, O38