The President of the French Competition Authority, announced, on Monday 8th March, at a conference on data and competition in the digital economy1, that a sector inquiry should be started soon in France regarding the overlaps between "Big Data" and competition law.
French Competition Authority ("FCA") officials would already have proceeded to some hearings and sent information requests to some players in the sector.
A highly topical issue
For the President of the FCA, it is important to gather a maximum volume of information in the perspective of a public consultation which would be included in a sector inquiry. Based on the FCA practice, such probe should lead to an opinion of the FCA under the provisions of article L.462-4 of the French Commercial Code (FCA own-initiative). The President, also added that the investigations led by the FCA’s officials may potentially result in the opening of proceedings against actors of the data sector.
At the end of 2015, the FCA had already started a joint study with the Bundeskartellamt ("BKA", the German Competition Authority) to better understand the new challenges and risks posed by innovative companies of the digital economy. This study should look more precisely into the consequences for an undertaking, with regard to competition law and specifically to market power, of accumulating a vast and complex set of customers’ personal information, commonly referred to as « Big Data ».
One month before the publication of the results of that joint study2, the statement of the President of the FCA echoes the ones of the European Commissioner for Competition whom asserted in January that she was paying attention to the potential abuses of undertakings which collected and used Big Data3. She explained that the fact for a limited number of companies to control the data necessary to answer the users’ needs might procure them the ability to exclude their competitors of the market.
Different approaches between the European Commission, France and Germany
The Commissioner however specified that, so far, no problem had been identified and that it cannot be automatically assumed that an undertaking has a significant market power based on its mere control of a large amount of data. She added, following the example of how UPS uses data in order to improve and optimize its delivery routes, undertakings can use Big Data to reduce their costs to the benefit of consumers.
From the FCA President’s standpoint, under French Competition Law, a market power abuse by a dominant company cannot be automatically inferred from its mere noncompliance with other rules such as environment or fiscal laws. Such an abuse could be established only if the behavior of the undertaking artificially reinforces its market power, either by eliminating or shutting out a competitor from the market. Therefore, as Google economist4 pointed it out, personal data protection issues cannot be the sole basis for suspicions of anti-competitive practices.
The President of the FCA wishes as well to be cautious about the use of the information gathered from the digital economy sector players in the framework of the French-German study or of a potential sector inquiry as far as he considers that it is important for the competition authorities to maintain a relationship of trust and cooperation with the undertakings which should not feel threatened by sanctions that could be imposed to them at the end of the inquiry.
One could argue that this position is sensibly different from the BKA’s one after the decision taken on March, 2nd by the BKA to open an investigation against Facebook about the interplay between antitrust law and privacy rules applied by the company. The BKA considers that the terms of service infringe data protection rules which could mean that Facebook abuses of its market power. The next months should be eventful for Big Data and competition law.