A new EU legal framework to reap the benefits of the digital economy linked to data

The Commission’s overall aim is to create a single market for data that will ensure Europe’s global competitiveness and promote Europe’s digital sovereignty. To do so, the Commission aims to create a European model for data sharing and usage. EU legislators hope that this model will act as an alternative to the current situation in which they consider a significant part of the world’s data to be managed by a relatively small number of very large players, originating mainly from the United States and China. They are motivated by concern that conditions for access and use of data could be imposed on smaller players and consumers in Europe. The huge wave of data-related regulation now facing online service providers is aimed at redistributing the economic benefits of the data across the digital ecosystem.

While we focus on the “Big Five” regulatory proposals in the latest edition of our Connected newsletter, it should not be forgotten that data access, use and portability is a long-standing element in competition law cases. Data access was at the core of the landmark Court of Justice of the European Union ruling in Magill in the early 1990s and has been central to subsequent cases which concluded that a refusal of access to data by a dominant undertaking was abusive conduct, as the data in each instance was considered indispensable to the emergence of a new product.

Access to data continues to feature frequently in recent antitrust investigations and has featured prominently in several recent abuse of dominance cases by the European Commission focused on large technology platforms. The European Commission’s Final Report of its “Sector Inquiry into Consumer Internet of Things” (January 2022) also demonstrated a growing interest in the use of, and potential impact of, data generated in new and high-growth tech sectors.

At the same time, access to data has also been a crucial aspect of the exercise of intellectual property rights. IPRs such as trade secrets can relate to, or intrinsically consist of, commercially relevant data such as software, databases or client information. As exclusive rights, IPRs are potentially powerful mechanisms to regulate access to data, or to prevent unauthorised third parties from gaining unwanted access to data.

Bird & Bird’s Regulatory & Public Affairs team is on hand to assist companies and organisations in understanding how the incoming data-related rules will apply to their services and to advise on compliance. Our competition, intellectual property and data protection teams are also available to clarify the relationship between the emerging legislation, the existing legal framework and established case law.

For further information on the articles below, or to be directed to the relevant team member, contact Francine Cunningham and Lluís Girbau Cabanas.

Sign up for our Connected newsletter for a monthly round-up from our Regulatory & Public Affairs team.