The Data Act came into force in early 2024 and will become largely applicable by September 2025. With one year until its full implementation, it is worth revisiting the Data Act and its possible impact on antitrust law – and the other way around.
Data has increasingly become an economic good and it is widely acknowledged that data can facilitate the creation or the consolidation of market power. Antitrust law and related regulations, such as the European DMA, have long recognized data as an economic and competitive factor. Regulators have repeatedly addressed the abuse of data-driven market power, and this issue is increasingly regulated. The Data Act shares a similar goal. It is assumed that in certain constellations, data access is a prerequisite for being able to participate in competition and in the business life more generally. Therefore, access is granted even against the will of the actual data owner.
Data Act with impact on antitrust law interpretation
But not only the aim of the Data Act is similar to some principles of antitrust law. One can even go a step further and assume that the Data Act will have an impact on the interpretation and application of certain antitrust provisions. This has happened in the past. For example, in the German Federal Cartel Office’s Meta case, the regulator largely referred to the GDPR to substantiate abusive behaviour.
One should not be surprised if the Data Act is used for similar purposes. For example, the Data Act foresees rights of access to data and in doing so goes into comparatively precise detail about the scope of such rights. Even if the Data Act is not binding for antitrust regulators, it will be difficult to argue why the scope of similar rights under antitrust law should fall short of the principles outlined in the Data Act. Germany introduced certain obligations to grant access to data in its antitrust regime at the beginning of 2021, and it will have to be seen how these will interplay with the Data Act in practice.
Data Act relying on antitrust principles
The interplay between the Data Act and antitrust could also work in the opposite direction, with certain aspects of the Data Act being shaped by antitrust principles. Various provisions of the Data Act provide for a so-called “prohibition of use” (Art. 4 para. 10 and Art. 6 para. 2 lit. e Data Act), which read as follow “The user shall not use the data obtained pursuant to a request referred to in paragraph 1 to develop a connected product that competes with the connected product from which the data originate, nor share the data with a third party with that intent and shall not use such data to derive insights about the economic situation, assets and production methods of the manufacturer or, where applicable the data holder.”
Interestingly, the Data Act foresees that whether a product is in competition with another product should be assessed on the basis of competition law practice for defining the relevant product market. While the general approach to defining relevant markets is well-established, with established case law for traditional markets, it should be noted that determining the relevant market for new products may not always be straightforward.
Data Act in conflict with antitrust law?
One of the most important principles of (EU) antitrust law is that the exchange of competitively sensitive information with competitors is not allowed (as recently confirmed once again ). The cartel prohibition of Article 101 TFEU is primary law and thus takes precedence over secondary laws like the Data Act. In other words, the Data Act must adhere to established rules and cannot create an antitrust free zone. This is also confirmed in recital 116 of the Data Act (“This Regulation should not affect the application of the rules of competition, in particular Articles 101 and 102 TFEU. The measures provided for in this Regulation should not be used to restrict competition in a manner contrary to the TFEU.”) The European Commission has expressed similar concerns, commenting on the draft of the Data Act that “companies sharing data” may constitute a violation of antitrust law.
Outlook
As we already predicted in an earlier blog about the Data Act, antitrust practitioners cannot afford to ignore the Data Act. It should be expected that the Data Act and antitrust law will become somewhat intertwined with various potential touching points.
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