Data Sharing for Collaborative Research under Art. 101 TFEU: Lessons from The Proposed Regulations for Data Markets
European Competition Journal, 2021
27 Pages Posted: 21 Apr 2021
Date Written: April 9, 2021
Economic operators active in the emerging data space are currently struggling with two major hurdles: i) the lack of legal certainty regarding the boundaries between lawfulness and unlawfulness of data sharing practices under European competition law; ii) the lack of coherence of the European competition framework with other regulatory branches of European Union law. This contribution addresses identified concerns, questioning under which conditions data sharing for research purposes is legitimate and thus promoted under the present competition framework. It enquires the relevance of data sharing agreements as research and development collaborations under art. 101 TFEU. In addition to the Commission’s Guidelines on horizontal cooperation, the study considers the regulatory framework emerging under the Data Governance Act and the Digital Service Package. It identifies some criteria relevant for assessing the lawfulness of data sharing agreements under art. 101(1) TFEU. These criteria are drawn from a combined reading of the mentioned framework and the principles grounding the recent Data Governance Act and Digital Service Package. They encompass subjective (type of undertakings involves); objective (type of data shared); structural (degree of openness) and teleological features (public interest or commercial-oriented research) of data sharing arrangements.
Keywords: Data Sharing; Data Pooling; Collaboration; Innovation; R&D Agreement; Art. 101 TFEU
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