EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

continuous and real-time access to data generated through the activity of business users/end-users and third parties authorised by business users. Article 6(i) also mentions that such access should be ‘in line with Regulation EU 2016/679’ (General Data Protection Regulation). However, the practical implementation remains unclear. Does it mean that subjects will be able to ask from the gatekeepers all personal data? Or, is the objective of a fair and competitive digital economy enough for continuous and real-time access to data? The answers to these questions probably vary depending on the specific situation, but the wording of these provisions is too unclear to make any assumptions concerning their application. Data protection and competition regulation share the same objectives; they aim to protect the internal market, consumers and competition onmerits (Wiedemann, K., 2021). In this case, it should not be a question of balancing conflicting rules but rather a question of how these rules may complement each other. However, data processing is not only regulated in the General Data Protection Regulation. Data may be protected by intellectual property rights or represent trade secrets. Moreover, the application programming interfaces may be copyright protected. Even though there is no property right to data, several regulations protect data or protect the application programming interfaces that may prevent data accessibility (Lundqvist, B. 2021). When we consider all these regulations, a gatekeeper will find a reason not to grant access to the data in most cases. The Commission should clarify whether the proposed Digital Markets Act creates an obligation for gatekeepers to grant access to data protected by intellectual property law or trade secrets to prevent this from happening. For example, it could be similar to how it is explained in the Directive (EU) 2019/1024 of the European Parliament and of the Council of 20 June 2019 on open data and the re-use of public sector information in Article 1(6): “The right for the maker of a database […] shall not be exercised by public sector bodies in order to prevent the re-use of documents or to restrict re use beyond the limits set by this Directive.” It would be appropriate if the relationship between General Data Protection Regulation and other regulations concerning data access would be clarified in the wording of the proposed Digital Markets Act. Indeed, the lack of clarity in this area may render the provisions that deal with access to data ineffective. 7. Conclusion The proposed Digital Markets Act intends to ensure a fair and competitive digital economy in the EU by regulating ‘gatekeepers’. There is a need for such a sector-specific regulation. However, since it is a novel type of regulation in the

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