EU Competition Law, Data Protection and Online Platforms: Data as Essential Facility (PhD summary)

Abstract

In line with its significance in the digital economy, data is becoming a necessary input of production for a variety of services competing with or complementary to the services offered by incumbent online platforms such as providers of online search engines, social networks and e-commerce platforms. By refusing to share information with potential competitors or new entrants, incumbents may limit effective competition to the detriment of consumers. In this context, the question rises whether the denial of a dominant firm to grant competitors access to its dataset could constitute a refusal to deal under Article 102 of the Treaty on the Functioning of the European Union (TFEU) and lead to competition liability under the so-called ‘essential facilities doctrine’. This doctrine attacks a particular form of exclusionary anticompetitive conduct by which a dominant undertaking refuses to give access to a type of infrastructure or other form of facility to which rivals need access in order to be able to compete. Against this background, the thesis explores how existing competition tools and concepts can be applied to data-related competition concerns in digital markets.

The main research question of the thesis revolves around the issue of whether and to what extent data may constitute an essential facility. The essential facilities doctrine has in the past been applied to physical infrastructures, including ports and tunnels, as well as to intangible assets protected by intellectual property rights. Because of the particular nature of data collected by providers of online platforms and the new business models that are employed, potential refusals to share data give rise to new competition concerns and may require a different analysis under the essential facilities doctrine. By relying on a variety of approaches, the thesis contributes to academic and policy discussions about how data-related competition concerns should be addressed under competition law.

The focus on the issue of whether and to what extent refusals to give access to data may constitute abusive behaviour under Article 102 TFEU also enables an analysis of how existing competition tools for market definition and assessment of dominance can be applied to online platforms. In addition, the imposition of a duty to share data with competitors raises questions about the interaction of competition law with data protection legislation, considering that the information collected by providers of online platforms may also include personal data of individuals. So even though the thesis mainly deals with the specific question of how the essential facilities doctrine should be applied to data, a broader analysis of other, related issues is required in order to give an adequate answer to the research question. This ensures that the findings have a wider relevance beyond the reach of the essential facilities doctrine and allow for more general conclusions about how competition law can be adequately applied to new developments in digital markets.

Note: Summary of PhD defended at KU Leuven and published by Kluwer Law International in 2016.

Keywords: Competition; intellectual property; data protection; innovation; market definition; data portability; data sharing

JEL Classification: K11; K20; K21; L43; L44; O38