Digital Data-Driven Mergers: Is a Data-Sharing Remedy a Panacea?

Abstract

The article contributes to the current debate on the interplay between the data economy and competition law. First, on the basis of theories of harm related to datadriven merger, it is stated that such transactions require a particular assessment in merger control proceedings, rather than having them cleared unconditionally during phase 1. Such examination should take into consideration data-induced market power, not necessarily related to traditionally defined relevant markets. Therefore, it is postulated to take an ecosystem perspective on harm stemming from digital data-driven mergers. Second, the practice of the European Commission is outlined with regard to data-access remedies. It is also indicated that sharing data – a core of the economic power of Big Tech – has the potential to be an efficient merger remedy in data-driven mergers. Third, the article analyses how such datasharing obligations could be formulated, that is, which undertakings should have access to data of a digital conglomerate, taking into account various factors, such as the asymmetry of collected data and entry barriers. Overall, it is recommended to make greater use of existing EU merger control tools in implementing the EU data-sharing policy, by considering an imposition of data-sharing remedies in digital data-driven mergers. An intervention of a competition authority that facilitates data-access, may contribute to the creation of competitive and innovative digital markets.