The beginning of a new era: data – both data access and the value of data – should be considered in competition analyses.
In an interview with the NY Times, the EU’s competition commissioner, Margrethe 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. Further to this issue, the Commission is looking for an answer to the question of how data can be taken into consideration in merger control.
The German Competition Authority (Bundeskartellamt, BKA) seems to have its own specific approach to considering data access in competition cases. It uses data protection rules in the analysis of cases about alleged abuse of a dominant position (see this explanation by BKA). Of course, it is a good idea to ask questions about whether competition law applies in a particular case and to check that the law is not being stretched too far, but I would first of all like to ask whether the BKA is the best placed authority to handle these fundamental questions. An indication as to the answer can be found in the so-called Commission Notice on cooperation within the Network of Competition Authorities. Paragraphs 14 and 15 are of particular relevance:
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).
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.
And there is another issue: that of the different approaches to competition regulations in the various EU Member States. The BKA is known for its solid legal work; however, it is not known as a great proponent of the Chicago School economic analysis that tends to be used in competition cases. If competition issues related to the EU’s digital internal market are left to the BKA, its approach will end up being exported to other EU Member States. Should a single Member State be allowed to play this kind of guiding role, or should this fall within the remit of the European Commission (i.e. the Directorate-General for Competition, DG COMP)?
It is currently being considered to what extent the Digital Single Market should be regulated. The Commission is gathering information in order 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. In view of this, I’m very much looking forward to Commissioner Vestager’s speech at the EU Consumer & Competition Day.