Joint position paper on Competition Law and (Big) Data by French Autorité de la Concurrence and the German Bundeskartellamt (see homepage of either authority under: Competition Law and Data).

Key words:

• Meaning of “data” for competition law purposes
• Big Data as a commodity
• Data helping price discrimination
• Big Data and market power
• “multi-homing”, influence on market importance

For the first time, two major European Competition authorities have joined in a common position paper (issued on May 10, 2016) to gather and state the importance of (Big) data in the increasing competitiveness of economic company models based on the collection and ownership of data.

While the use of data is not new to competition cases in past assessments (referring to e.g. EU Commission’s decisions in: “Google/DoubleClick”, 2008, “Tomtom/Teleatlas”, 2008, “Microsoft /Yahoo”, 2010, “Facebook/ WhatsApp”, 2014, “EDF/Dalkia en France”, 2014), those have mainly been done in the context of merger control.

The position paper attempts to go further, i.e. suggesting that a/the theory of harm should be assessed with the help of considering the “data advantage” (that is, compared to competitors) in online markets, on a case by case basis.
Two aspects appear to be of particular importance:

• whether the data under consideration can be easily obtained by competitors
• whether the scale and scope of the data (really) matters

With the beginning of such an initiative, the two authorities set a signal to become “opinion” leaders, if carrying forward, within the EU Network of competition authorities (and which holds regular meetings with EU DG Competition).

A particular aspect of enhancing this leadership may be seen by the initiative of the German Bundeskartellamt to initiate (March 2016) proceedings against Facebook to investigate its specific terms of service (on the use of user data) in view of a possible abuse of dominance in the market of social networks. And the Autorité which has announced to launch soon a full-blown sector investigation into data-related markets and strategies.