On 19 February 2020 the European Commission issued a communication on the EU’s strategy for data.[1]  The Commission expects feedback on the communication.

At a political level the Commission has set-out three key objectives over the next five years: technology that works for people; a fair and competitive economy; and an open, democratic and sustainable society.[2]

At the EU policy level as regards business, the Commission aims to set-up a single market for data, the European Data Space.  An important part of this is to unlock unused data, whether held by business or public administrations.  This aim is to be achieved through three broad initiatives:

Regulatory framework – the Commission will propose a framework for

• data governance,
• access and reuse between businesses and between businesses and government, and
• within administrations.

Infrastructure – the Commission will encourage, through funding, the development of technological systems and next generation infrastructures.

Sectoral actions – the Commission will launch specific action in relation to certain sectors, namely,

• Industrial manufacturing
• Green deal
• Mobility
• Health
• Financial
• Energy
• Agricultural
• Public administration
• Skill
• Science such as industrial manufacturing or health.

Key actions that have been identified include

Competition policy and law

The Commission on the surface identifies the relevance of competition law by stating that the outcomes envisaged should be compliant with competition law.  For example, it states that the infrastructures that would be encouraged to be set-up should support the creation of European data pools enabling Big Data analytics and machine learning, in a manner compliant with data protection legislation and competition law, allowing the emergence of data-driven ecosystems.

Taking another angle, the Commission has identified that fragmentation between Member States rules in various sectors, including competition law, is a problem that is holding back the EU from realising its potential in the data economy.

At the same time, existing rules in other domains are limiting the ability of competition to create innovation and business.  For example, Article 20 of the GDPR has the potential to enable novel data flows and foster competition, yet, the Commission expressly recognises that as a result of its design to enable switching of service providers rather than enabling data reuse in digital ecosystems, the right has practical limitations.

The Commission identifies that only where specific circumstances dictate would access to data be made compulsory.  In this context, the Commission identifies it will consider each sector.  Only where market failure (that is, access) is identified/can be foreseen and which competition law cannot solve will market access be mandatory.

As regards voluntary data sharing, the Commission identifies it will provide guidance on data sharing and pooling arrangements by way of an update of the Horizontal Co-operation Guidelines.

As regards mergers, the Commission identifies will look closely at the possible effects on competition of large-scale data accumulation through acquisitions and at the utility of data-access or data-sharing remedies to resolve any concerns.

As regards Member State support (State aid) the Commission identifies it will examine the relationship between public support to undertakings (e.g. for digital transformation) and the minimisation of competition distortions through data-sharing requirements for beneficiaries.

As regards data sharing in relation to the

• industrial sector, the Commission identifies it will gather key players from the manufacturing sector to agree the conditions under which they would be ready to share their data and how to further boost data generation, notably via smart connected products, and
• mobility sector, notably automotive, the Commission identifies that Innovation in this area requires that car data are shared, in a secure and well-framed way, in line with competition rules amongst many different economic players.

While the above offers dialogue and is not prescriptive – the Commission’s communication is after all intended to be an invitation for public consultation – the heart of the message from the Commission is that data should be available to all, whether public or private, big or small, start-up or giant.

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[1] The Commission also issued a White Paper on Artificial Intelligence: a European approach to excellence and trust https://ec.europa.eu/info/files/white-paper-artificial-intelligence-european-approach-excellence-and-trust_en

[2] See press release https://ec.europa.eu/commission/presscorner/detail/en/ip_20_273