The EU Court of Justice preliminarily determines that discriminatory access to data may constitute an abuse of a dominant position (Enel)

On 12 May 2022, the European Court of Justice ("the Court") delivered a preliminary ruling on abuse of dominance through the exploitation of data. As the historic monopolist, ENEL had access to customer data which it used to strengthen its position. Key takeaways ENEL prevented its competitors' access to valuable customer data that it collected as monopolist on the regulated market. Even though third parties offered similar customer data, by providing discriminatory data access ENEL did not compete on the merits. An abuse of dominance does not require proof of direct harm to consumers, nor proof of concrete effects on the market. The "as efficient