Competition & Data

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29 March, 2016

The beginning of a new era: data should be considered in competition analyses. This concerns both data access as well as the value of data.

In an interview with the NY Times the Competition Commissioner Vestager was asked ‘Do you think access to digital data will become a competition issue?’  Her answer: ‘It’s not black or white’. In other words: it should be judged on a case-by-case basis and therefore it is part of the competition framework. To continue, the commission is looking for an answer to the question how data can be taken into consideration in merger control.

The German competition authority (Bundeskartellamt, BKA) seems to take a specific approach when considering data in competition cases. It uses data protection rules in the analysis of a competition case about alleged abuse of a dominant position (see explanation of BKA). Of course it is right to ask questions whether competition law is right and if competition law is not stretched too much, but prior to those questions I would like to ask whether the BKA is the best placed authority to handle these fundamental questions. The answer at large can be found in the so-called Commission Notice on cooperation within the Network of Competition Authorities. Especially paragraphs 14 and 15 are of particular relevance:

  1. The Commission is particularly well placed if one or several agreement(s) or practice(s), including networks of similar agreements or practices, have effects on competition in more than three Member States (cross- border markets covering more than three Member States or several national markets).
  2. Moreover, the Commission is particularly well placed to deal with a case if it is closely linked to other Community provisions which may be exclusively or more effectively applied by the Commission, if the Community interest requires the adoption of a Commission decision to develop Community competition policy when a new competition issue arises or to ensure effective enforcement.

Furthermore, there is another issue, i.e. the difference of appreciation of competition rules in different EU member states. The BKA is known for its solid legal work, however it is not known as a great supporter of the Chicago School economic analysis that are being used in competition cases. If competition issues are left to the BKA regarding the EU (digital) internal market then the economic approach of the BKA would be exported to other EU member states. Should this type of guiding position be left to a single member state, or is this a typical role for the European Commission (DG COMP)?

In this very period of time it is being considered to what the extent the Digital Single Market has to be regulated. The Commission is gathering information to get a better understanding of the e-commerce market (see also Antitrust: Commission publishes initial findings on geo-blocking from e-commerce sector inquiry – Factsheet). A well functioning market is in everybody’s interest.  Therefore, I am looking forward to the speech of Commissioner Vestager during European Consumer & Competition Day.


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Jonathan Toornstra

Legal Consultant

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