The question of whether digital data constitute a barrier to entry or an essential facility does not admit a “one-size-fits-all” answer: only a case-by-case assessment of whether digital data have viable substitutes will allow the antitrust law interpreter understanding whether digital data fall within one of the categories. Therefore, the real question becomes “do digital data have viable substitutes?” In order to answer that question, a thorough assessment of the needs and uses that the undertaking seeking those digital data wants to accomplish through them is required. Establishing the kind of information that the undertaking wants to infer from the digital data, indeed, will be crucial in order to understand whether such “demand” can be met by recurring to potential alternative datasets. However, the Fourth Industrial Revolution has also revealed competitive risks that the categories of traditional antitrust analysis do not seem to tackle effectively.

By Mariateresa Maggiolino1 & Giulia Ferrari2

 

I. INTRODUCTION

“Just the facts ma’am: competition cases are all about facts.”3 That sentence has the merit of highlighting how antitrust law, aiming at ensuring the proper functioning of the market, cannot disregard the knowledge of the many and varied empirical elements that influence economic agents’ decisions and their effects on consumer welfare. This is the reason why, for example, antitrust authoritie

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