Exclusionary conduct in data-driven markets: limitations of data sharing remedy

Abstract

Abstract The natural consequence of finding an infringement of Article 102 TFEU is to offset the harm to consumer welfare by restoring competition through effective remedies. As big data constitutes the most vital resource in data-driven markets, a dominant undertaking can exclude its rivals from accessing user data and thus deprive them of scale in markets that are characterized by network effects. Indeed, the European Commission found Google guilty of excluding its rivals in the Android licencing case by adopting this strategy. The Commission, however, did not impose any data sharing remedy. This article analyses the viability of mandatory data sharing as a remedy to restore competition in the affected market. It approaches this research question from both theoretical and practical standpoints. It analyses the viability of a mandatory data sharing remedy from a legal, economic, and technological perspective. A separate section makes an assessment of such a remedy within the framework of the GDPR. Based on this investigation, this article concludes that mandatory data sharing is not the optimal solution to remedy loss to consumer welfare.