Data in European Competition Law. Innovation, consumer welfare, and politics in European merger control.

Abstract

This thesis deals with the role of data in European competition law. By examining the role of data in mergers and acquisitions where the suspected rationale of the buying company is to decrease the competition it is facing, this thesis takes a speculative idea and turns it into a testable hypothesis: “is competition law equipped to handle the role of data in today’s economy?” The research focuses on defining a product market for data, what constitutes market power in that market, and how a competitive assessment in a merger review may be influenced by considering to role of data in the deal at hand.

This thesis has shown that a market for data cannot be defined, unless one is satisfied to use a hypothetical market for data as an input. Data is nevertheless a highly relevant aspect to consider in merger reviews, as the access to, control, or ownership of sources of data are increasingly important for companies to compete, and thus a determinant of the market dynamics. This in turn has strong impact on the assessment of barriers to entry. However, given the difficulties of ascertaining any significant impediments on competition arising from concentrations of data market shares, the exercise of establishing a hypothetical market for data as an input appears largely superfluous.

In light of how particular data is in regards of type and content, and how dependent its value is on the capabilities of the entity controlling it, there is a paradoxical element in the Commission’s approach to it in competition assessments: the more narrow and specific the Commission tries to define the data, the more elusive and enigmatic it will become as the data appears increasingly worthless the closer one looks at it. This thesis emphasises the need for a specialised and highly detailed analysis of the role of data in competition law, on case-to-case basis.