The “objective test” and the downstream market presence requirement in Big Data access cases under the essential facilities doctrine - a critical assessment

Abstract

One possible way to gain access to competitively relevant sets of Big Data is toapply the essential facilities doctrine. However, the European Commission and theEuropean Court of Justice have established several different criteria for applying thedoctrine. Since neither institution has yet applied the doctrine in Big Data accesscases, it is not clear which of the criteria applies in such positions. This paper attemptsto analyze the impact of the “objective test” and the requirement that the controllingcompany be active in the downstream market (which are included in all assessmentcriteria) in Big Data access cases, with the goal of answering the research question,“Do the application of the “objective test” and the requirement that the controllingcompany be active in the downstream market impede the effectiveness of the doctrinein Big Data access cases under EU competition law, and if so, how should they bechanged?” The conclusion is that in Big Data access cases, the “objective test” shouldbe mitigated and replaced by the “subjective test” or the “average company test” andthe requirement that the controlling company be active in the downstream marketshould be discarded altogether in order for the doctrine to be an effective tool foraccessing competitively relevant sets of Big Data.