Big Data, Big Target for EU Antitrust Enforcement?

In her new five-year mandate as Competition Commissioner, Commission Executive Vice-President Vestager will be considering changes to EU antitrust enforcement in relation to big data in several respects: the role of data in defining markets and assessing market power; imposing data-access remedies in abuse-of-dominance cases; and clarifying rules on sharing and pooling data. In merger review, pressure for reform is coming from many directions, but (perhaps surprisingly) not particularly in relation to the assessment of big data combinations. Based on the May 2019 special advisor report, the most significant legal changes may come in the form of a new and less stringent approach to data access remedies, but such cases are few and far between and often take years to resolve. In parallel, Vestager will be working on new regulatory frameworks for artificial intelligence and digital services. Vestager’s views on the potential for big data to confer market power and the pros and cons of mandating access to data may ultimately have a greater role in shaping EU regulation than EU antitrust enforcement.

By Jay Modrall¹

I. INTRODUCTION

The antitrust implications of big data have been a key concern for international antitrust authorities since at least 2016, when the French and German authorities released a study on competition and big data² and the OECD organized a roundtable.³ Since then, antitrust authorities’ focus on big data has only