Economic dependence and data access

Traditionally, according to EU competition law, if an undertaking holding a dominant position refuses to grant access to its data to another undertaking, this could potentially lead to an abuse precluded by Art. 102 TFEU. However, the scope of this provision is limited as it only applies to dominant undertakings. Yet, powerful data holders that do not benefit from such a dominant position might start refusing to provide access to their data to undertakings with limited bargaining power. This is notably illustrated by two cases in the USA, namely PeopleBrowsr v. Twitter and hiQ v. LinkedIn. These two cases raise the question of whether the concept of abuse of economic dependence could prove to be a valuable alternative in order to deal with refusals, by non-dominant undertakings, to provide access to data to undertakings with a weaker bargaining power. In this article, the rationale for data access and sharing in light of the data’s characteristics will first be briefly outlined. Then, the conditions of the abuse of economic dependence will be identified by relying on Belgian, German and French law. On these grounds, the article will question whether a refusal to provide access to data could qualify as an abuse of economic dependence.