No new 'competition rulebook' necessary for big data age, says EU commissioner

In a speech in Munich, Margrethe Vestager said that the European Commission is, though, prepared to intervene in cases where "genuine competition issues" are raised by companies' use or control of data.

"We don't need a whole new competition rulebook for the big data world," Vestager said. "Just as we didn't need one for a world of fax machines, or credit cards, or personal computers. What we do need is to pay close attention to these markets and to take action when it’s necessary."

Vestager highlighted the potential for companies' use of data to breach competition laws, but confirmed that the Commission had yet to find an example of a business using or controlling access to data in a way that ran contrary to EU competition rules. She also confirmed that companies can hold a lot of data without breaching those rules.

"If just a few companies control the data you need to satisfy customers and cut costs, that could give them the power to drive their rivals out of the market," Vestager said. "And with less competition, there's a risk that there won't be enough incentive for companies to keep using big data to serve customers better. If a company’s use of data is so bad for competition that it outweighs the benefits, we may have to step in to restore a level playing field. But we shouldn’t take action just because a company holds a lot of data. After all, data doesn't automatically equal power."

"It might not be easy to build a strong market position using data that quickly goes out of date. So we need to look at the type of data, to see if it stays valuable," she said. "We also need to ask why competitors couldn't get hold of equally good information. What’s to stop them from collecting the same data from their customers, or buying it from a data analytics company? We continue to look carefully at this issue, but we haven't found a competition problem yet. This certainly doesn't mean we never will."

Competition law expert Guy Lougher of Pinsent Masons, the law firm behind Out-Law.com, welcomed the commissioner's "explicit confirmation" that a company's mere ownership and use of large quantities of consumer data is not in itself anti-competitive.

"This is entirely consistent with long-established EU case law which states that merely holding a dominant position is not anti-competitive; it only becomes problematic if and when the dominant company abuses its position of dominance," Lougher said.

Last year the UK's Competition and Markets Authority (CMA) conducted a study into the commercial use of consumer data. The regulator said that the study uncovered no evidence that companies dominant in their markets are breaching competition rules by using consumer data in a way which abuses the dominance they enjoy.

However, Germany's advisory body on competition law has called for "merger control" rules to be updated to better reflect the potential impact on competition where amalgamating businesses have access to vast sets of "commercially valuable data".