The Creation of Data Pools as Information Exchanges: Antitrust Concerns
The Creation of Data Pools as Information Exchanges: Antitrust Concerns

Summary/Abstract: In the digital market, data is a critical resource, but its handling reveals a two-sided situation. First, dominant platforms, known as gatekeepers, control majordata sources. They may extract data unfairly from dependent partners, or abusetheir market position by demanding excessive data for free services, and may alsoacquire companies solely for their data. The Digital Markets Act counters thisby imposing data handling restrictions and portability duties. Conversely, non-gatekeeper companies need data access to compete and innovate. The EuropeanData Act addresses this, by granting data portability rights and promoting datasharing spaces, yet a more extensive data marketplace is needed.Data pools are essential for companies to access and use data, leading to enhancedderivative data utility. However, they pose risks of collusion, market foreclosure,and abuse of dominance. Exchanges in data pools can infringe competition rules,as seen in the CJEU Asnef-Equifax case. Data types vary from raw to processed,and meaningful information, including non-digital data. Commercially sensitiveinformation shared in pools is scrutinized under Article 101(1) TFEU. Specificattention is needed for exchanges involving pricing, production capacities, andcommercial strategies, as these directly restrict competition. Public information isexempt from this scrutiny.To mitigate collusion risks, companies can use blind sharing or limit sensitiveinformation exchanges. Technical data pools, essential for industry and productdevelopment, are regulated similarly to patent pools, with access on FRAND termsto prevent market foreclosure. Identifying essential data or market entry as well asensuring fair access is crucial to address these competition risks.This paper begins with a brief analysis of the central role that data collection andaccumulation play in market functioning and company behaviour. In this realm,a concentrative force arises, leading more powerful companies to accumulate moredata, thereby raising significant entry barriers for their competitors. Exploredsubsequently are the measures adopted from a regulatory standpoint to addressthese problems through the DMA, DSA, and the Data Act. In this context, thepaper explains how data pooling represents a viable approach to address this issue.However, highlighted are also the significant competition risks that may arise fromthe use of this mechanism, such as facilitating collusive practices, market closure, orother exploitative abuses. Discuss next are potential remedies that can be employedto overcome these risks, and promote the use of data pools as a means to enhanceaccessibility and access to data. From the author’s perspective, it would be necessaryto establish a safe harbour (in the form of specific guidelines on data sharing) that provides certainty about the assumptions and conditions under which data poolingcan proceed, without posing a substantial risk to the competitive functioning ofmarkets.

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