Competition Law and Big Data. Imposing Access to Information in Digital Markets, Beata MÄIHÄNIEMI

Beata Mäihäniemi

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In this book, Beata Mäihäniemi, a postdoctoral fellow at the Legal Tech Lab at the University of Helsinki, provides a detailed analysis of the impact of digital market information and its impact on competition law enforcement. Information, broadly understood in this study, refers not only to the personal data of users of digital services but also to the content offered by these services. The aim of the book is, on the one hand, to demonstrate how the possession and use of information by players operating on digital markets can lead to abuses of dominant positions and, on the other hand, to analyse the means available to competition authorities to grasp the issues raised by the development of these specific markets.

The first part provides a theoretical analysis of the characteristics of digital markets and the players operating in these markets. Through this analysis, the author explains how the application of the traditional rules of Article 102 TFEU is sometimes made complex in this somewhat particular environment. The author first highlights the central role of information in these markets, either as a raw material for the supply of products and services or as content offered to the consumer (Chapter 3). The author then defines the specific characteristics of digital markets - network effects, learning effects, etc. - which are characteristic of these markets. - The author then defines the specific characteristics of digital markets - network effects, learning effects, etc. - which lead to situations of concentration around a few major platform operators, which position themselves as information intermediaries but also as standards. The author insists on the importance of the notion of potential competition on these markets (chapter 4). Chapter 5 is devoted to the notion of dominance of online platform operators. It highlights the difficulties of characterizing this dominance due to the two-sided, even multi-faceted nature of these operators and the sometimes blurred borders between the markets on which they operate. Finally, the author explains how these situations of dominance can lead to abuses based on the possession or use of information and how competition law deals with these new types of abuse. The analysis focuses mainly on exclusionary abuses. Chapter 6 explains, in particular, how a refusal to grant access to information could be qualified as an abuse on the basis of Article 102 TFEU.

The second part proposes a practical application of the theoretical observations outlined above. The choice has been made to focus the analysis on two emblematic cases involving the operator Google which, like the IBM or Microsoft cases, are a relevant illustration of the challenges faced by competition authorities in the development of intermediation platforms in a situation of super-dominance. The analyses focus mainly on the investigations conducted by the European Commission but also, to a lesser extent, on those conducted by the FTC, which highlights the differences in approach of the two competition authorities. The author also presents the different procedural tools available to these authorities - sanction decisions, commitments, interim measures - and discusses the advantages and disadvantages of each of these tools, using the Google Shopping case as an example.

The third and last part is more conclusive. It takes up the entire analysis and makes various recommendations. In particular, it discusses the application of critical infrastructure theory as a remedy to the problems of access to information in digital markets. However, the question of the link between the organization of access to personal data and the right to the protection of such data is not at the heart of the discussion.

Various issues are raised throughout the book, two of which are recurring. One is the question of how to incorporate new competition law objectives that would go beyond current economic considerations, such as privacy and fairness. While the author demonstrates that the integration of these objectives would allow competition authorities to take into account emerging concerns in digital markets, she does not avoid a discussion of the desirability and feasibility of such a task. On the other hand, the question of the appropriateness of a specific responsibility for super-dominant operators through asymmetrical regulation, which is also being discussed, is also at issue.

Finally, the author proposes an original tool that would make it possible to refine the analysis of a practice based on the possession or use of information. It is a classification of the latter according to whether it is used for its instrumental value - information as "commodity" - or for its intrinsic value - information as "common". The author insists on the need to distinguish between the different uses of information. This proposal gives some perspective to this particularly topical study of the role of information in digital markets.

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  • University of Paris I Panthéon-Sorbonne (Paris)


Elsa Haïm, Competition Law and Big Data. Imposing Access to Information in Digital Markets, Beata MÄIHÄNIEMI, September 2020, Concurrences N° 3-2020, Art. N° 96023, pp. 235-236

Publisher Edward Elgar Publishing, New Horizons in Competition Law and Economics series

Date 1 January 2020

Number of pages 336

Visites 308

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