Data as an essential facility in European law: how to define the “target” market and divert the data pipeline?*

Abstract

ABSTRACT A new economic test called the holistic inter-dynamic analysis is proposed to tackle both sides of the multisided market simultaneously. The dominance issue solved, the risk of 102 TFEU abuse regarding data was already highlighted in the 1996 Database Directive. On that matter, this article assesses each legal condition of a “refusal to supply” access. Apropos the indispensability condition, data’s ubiquitous nature may be dispelled by an analysis of the context in which it evolves or its link with AI or the IoT. Concerning its replicability prong, data’s feature, feedback loops, network effects, switching costs or economies of scale/scope are conducive to super-dominance. They altogether can create an insurmountable bottleneck. Regarding innovation, the author carefully analyses the “limitation of technical development” condition either on an economic or a legal standpoint. Finally, regarding privacy law, when granting access, a coherent approach appears feasible through a proportionality test.