Big data - en oumbärlig resurs? Den konkurrensrättsliga principen om nödvändiga nyttigheter och Digital Markets Act i relation till big data i den digitala sektorn

Sammanfattning: The digital sector of the EU's single market is playing an increasingly significant role in the economy, and a new type of resource that is becoming more important within it is known as big data. Companies providing core platform services are often in control of big data, which in turn can be an indispensable input resource for other companies operating in the digital sector. A company's refusal to make big data available may, under certain circumstances, be against the law, either in light of EU competition law, in the form of Article 102 TFEU on abuse of a dominant position and the essential facilities doctrine, or the newly introduced Digital Markets Act. The Digital Markets Act imposes an obligation on companies that meet certain concrete and quantitative thresholds, and are thus designated as gatekeepers, to make big data available to their business users and relevant third parties, which in some cases may be the gatekeeper's competitors. The essential facilities doctrine revolves around four requirements for the assessment of abuse of dominance by refusal: the indispensability of the requested resource, the impact of the refusal on competition in the derivative market, the impact of the refusal on the possibility of introducing a new product, and special circumstances such as the absence of an objectively acceptable reason for the dominant party's refusal. This paper examines the meaning of the essential facilities doctrine in relation to refusals to make big data available and the meaning of the Digital Markets Act in relation to obligations to make big data available.