On 10 February 2020, the Italian Competition Authority (“ICA”) published the final report of the Big Data joint fact-finding survey, launched in collaboration with the Italian Communications Regulatory Authority ("AgCom") and the Data Protection Authority on 30 May 2017. As part of the initiatives adopted following the joint inquiry, the Authorities also identified policy guidelines and recommendations addressed to the legislator.
From the perspective of antitrust enforcement, the ICA focused its investigation on the implications of Big Data in terms of both the protection of competition and consumer interests. Its analysis firstly concerned consumers’ propensity to allow the use of their data in exchange for use of online services; then, it addressed several "hot" competitions topics such as: i) the analysis of market power and the effects of concentrations; ii) the qualitative dimension of competition in markets where services are offered for free; iii) the role of portability in reducing switching costs and ensuring market contendibility.
According to the indications provided in the final report, the ICA aims to: a) extend - in the definition of the relevant market - the antitrust analysis beyond the traditional parameters related to prices and quantities, by including quality, innovation and fairness objectives; b) change the Italian merger control regime by introducing an evaluation standard grounded on the SIEC criteria (“Substantial impediment to effective competition”), and review the merger notification thresholds in order to be able to prevent so-called “killer acquisitions” by large players in the digital sector; c) promote the competition for data access and consumer protection by providing additional portability and mobility data obligations; d) reinforce the investigative powers of the ICA and the AgCom outside proceedings and increase the penalties for the violation of consumer protection law.
The proposed measures are not entirely new in their application of antitrust law at both a national and European level. Therefore, it will important mainly to monitor the concrete application of traditional antitrust rules and principles in the near future.
For more information, please find the ICA press release here.