A key emerging issue before the European Commission and national regulators in European Union member states is the question of how “big data” should be treated in merger control and antitrust enforcement.
In May 2016, the French Competition Authority and German Federal Cartel Office published a joint report on big data. The key issues concerned potential data concentration and foreclosure of competitors in related markets (e.g., online advertising) resulting from a transaction and potential contractual foreclosure or marginalization of competitors active in markets where the data is used.
Also in May 2016, the French authority announced a “full-blown sector inquiry into data-related markets and strategies.”
The Competition and Markets Authority in the UK published a June 2015 report that, while also addressing consumer protection laws, outlined potential competition law issues similar to those identified in the German and French authorities’ joint report.
The EU Commission already confirmed in its August 2014 Facebook/WhatsApp decision that privacy-related concerns flowing from the increased concentration of data within the control of one company as a result of a transaction would fall within the scope of EU data protection rules, not EU competition law rules.
In its December 6, 2016, decision on the Microsoft/LinkedIn transaction, the EU Commission clarified that privacy-related concerns can be taken into account in a competition assessment to the extent that consumers see it as a significant factor in the quality of the services offered.
The EU Commission concluded that data privacy was an important parameter of competition among professional social networks on the market and could have been negatively affected by the potential data concentration as a result of the merger, but it ultimately cleared the transaction subject to certain conditions.
An additional concern is that big data could result in the foreclosure or marginalization of competitors active in markets where the data is used.
Concerns include refusing to provide access to the data, requiring contractual exclusivity provisions, conditioning access to a valuable data set on the use of a company’s own data analytics services, or using big data as a vehicle for price discrimination against different customer groups.
It is clear that big data is and will continue to be on the agenda of European competition authorities for years to come.
In March 2016, German Federal Cartel Office opened an investigation against Facebook for allegedly infringing German data protection rules, although details of the investigation are not yet publicly available.