Big Data and Antitrust: A Comparative Analysis of the EU and US Scenario

Research project

Giuseppe Colangelo & Mariateresa Maggiolino


The relevance of big data to both EU and US economies is remarkable and requires a deep understanding of a wide range of issues. The present project will investigate two main issues: 1) data protection and the interface between privacy/consumer protection and antitrust, and 2) the desirability and the feasibility of imposing on dominant players a duty to share big data through the essential facility doctrine.
Therefore, the aim of this project is twofold.

First, it will analyze whether and how competition law could be enforced as a substitute for data protection law, as the recent Facebook proceeding initiated by the Bundeskartellamt suggests. In this regard, special attention will be devoted to a comparative and critical review of the EU and the US framework. The main purpose will be to assess whether current data protection provisions give individuals a sufficient level of control over their personal data, which may actually enhance competition (for instance, by imposing data portability on online providers).

Second, through comparing and contrasting EU and the US caselaw, this research will explore whether big data might represent an essential facility. Nonetheless, even if the essential facility doctrine requirements were met, compulsory licences regarding data would be difficult to manage for several reasons. Therefore, this research examines the administrability problems of compulsory data licences. In particular, it looks at the question, how could a rival claim the need for a certain database even if he is unable to know, before access, what exactly is contained in a certain dataset? Moreover, should those data be updated in real time? Does this mean that there should be an ongoing, time-unlimited flow of data from the monopolist to those who ask for them? And what are appropriate terms and conditions for the licences?