Economic Dependence and Data Access

Abstract

The EU Commission has opted to let the data market self-regulate itself and to rely on contractual freedom. This might lead to potential market failures deriving from discrepancies in bargaining power, having as a consequence that powerful data holders might start refusing to provide access to their data to undertakings with limited (or practically inexistent) bargaining power. Traditionally, under EU competition law, this could potentially lead to an abuse precluded by Article 102 TFEU. However, the scope of this provision is limited as it only applies to dominant undertakings. Therefore, this article will study whether the concept of abuse of economic dependence could prove to be a valuable alternative in order to deal with refusals, by non-dominant undertakings, to provide access to data to undertakings having a weaker bargaining power. The question is whether such a refusal, by a non-dominant undertaking benefiting from a “relative or superior market power”, to provide access to data to another undertaking, whose commercial activity “depends” on this access, could amount to an abuse of economic dependence. To do so, the rationale for data access and sharing in light of data’s characteristics will first be briefly outlined. Then, the conditions of the abuse of economic dependence will be identified, by relying on Belgian, German and French law. On these grounds, this article will question whether a refusal to provide access to data could qualify as an abuse of economic dependence.