Caught in the Acts: Framing Mandatory Data Access Transactions under the Data Act, Further EU Digital Regulation Acts, and Competition Law

Abstract

With its ‘Digital Regulation’ package, comprising the Data Act (DA), the Digital Markets Act (DMA), the Digital Services Act (DSA), and the Data Governance Act (DGA; hereinafter together the ‘Digital Regulation Acts’ DRAs), the EU is establishing various obligations to grant access to digital data. EU and Member State competition laws contain additional access obligations. Beyond the question whether these access granting obligations seem appropriate, the transactions implementing them (hereinafter ‘Mandatory Data Access Transactions’) require a sound legal framework. Seeking to contribute to such a framework, this paper provides a brief overview on data access granting obligations, and their pro-transactional role, under the EU Digital Regulation, EU competition law, and German competition law, as an example for Member State law (II.). It then diagnoses that the lack of a data-transaction-specific framework, for which general contract and IP licensing law are essential but not sufficient, clashes with business needs and realities (III.). Competition law must control whether access transactions are shaped in a pro-competitive manner. An assessment of existing Block Exemption Regulations (BERs) and competition-law-related provisions in the DRAs indicates, however, that competition law must evolve to perform this task (V.). Suggesting an inductive methodology for adapting license and competition law rules to data access transactions, the next step of the analysis (VI.) progresses from concrete transactional challenges to certain general transaction framing rules. A final part (VII.) concludes, discussing ways forward.