Germany has amended its domestic competition law to increase the legal tools available to prevent market dominance and abuses in relation to data. The Commission’s approach contrasts with that of some commentators (and indeed some of the Commission’s own non-merger enforcement activities) which have highlighted the potential for platforms to gain an unassailable advantage over competitors in relation to data.Ĭoncerns of data ‘tipping points’ were among the reasons why French and German competition authorities have published a joint paper on data and competition law. These concerns were dismissed by the Commission on a number of grounds, the most interesting being that the combination of their respective datasets is unlikely to result in raising the barriers to entry / expansion for other players as there will continue to be large amounts of internet user data available for advertising purposes which are not within Microsoft’s exclusive control. Even if the datasets are not combined, the companies may have been competing pre-merger on the basis of the data they control and that this competition could be eliminated by the merger. The combination of data may increase the merged entity’s market power in the data market or increase barriers to entry / expansion for competitors who need this data in order to compete – forcing them to collect a larger dataset in order to compete with the merged entity, andĢ. The Commission identified two potential concerns:ġ. Similarly, in the LinkedIn / Microsoft decision, the Commission’s assessment was that the post-merger combination of data (such as the individual career information, contact details and professional contacts of users) did not raise competition concerns. Cases such as this are challenging the Commission’s relaxed attitude to the potential effects on competition of deals involving significant volumes of data (for example, the Commission’s 2014 clearance decision of Facebook’s acquisition of WhatsApp – now the subject of an investigation into whether Facebook provided misleading information in the context of that merger review). The merger is one of a number of high profile technology cases in which data is the key asset. The full text of the decision has recently been published, affording some useful insight into the Commission’s reasoning. On 6 December 2016, the European Commission approved the acquisition of LinkedIn by Microsoft, conditional on compliance with a series of commitments. EU Commission’s Microsoft/ LinkedIn Decision – watershed for competition and data?

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