A competition policy for the digital age : An analysis of the challenges posed by data-driven business models to EU competition law

Abstract: The increasing volume and value of data in online markets along with tendencies of market concentration makes it an interesting research topic in the field of competition law. The purpose of this thesis is to evaluate how EU competition law could adapt to the challenges brought on by big data, particularly in relation to Art. 102 TFEU and the EUMR. Furthermore, this thesis analyses the intersection between privacy regulations and competition law. The characteristics pertaining to online markets and data are presented in this thesis in order to accurately describe the specific challenges which arise in online markets. By analysing previous case law of the ECJ as well as the Bundeskartellamt’s Facebook investigation, this thesis concludes that privacy concerns could potentially be addressed within a EU competition law procedure. Such an approach might be particularly warranted in markets where privacy is a key parameter of competition. However, a departure from the traditionally price-centric enforcement of competition law is required in order to adequately address privacy concerns. The research presented in this thesis demonstrates the decreasing importance of market shares in the assessment of a dominant position in online markets, due to the dynamic character of such markets. An increased focus on entry barriers appears to be necessary, of which data can constitute an important barrier. Additionally, consumer behaviour constitutes a source of market power in online markets, which warrants a shift towards behavioural economic analysis. The turnover thresholds of the EUMR do not appear to adequately address data-driven mergers, which is illustrated by the Facebook/WhatsApp merger. Therefore, thresholds based on other parameters are necessary. The value of data also increases the potential anticompetitive effects of vertical and conglomerate mergers, warranting an increased focus on such mergers.