Below the DMA-Threshold: Access Between Data Protection and Unfair Competition

The Digital Markets Act is silent on data access to platforms or de facto owners of data that do not qualify as gatekeepers. This calls for an evaluation of regulatory strategies for data access below the DMA’s gatekeeper threshold. The paper will explore the data access scenarios under the P2B-Regulation, the EU’s new Data Act, the GDPR and German competition law. As fairness has become a crucial element of digital market policy, the potential of unfair trading law for developing access standards will be examined. After surveying current sectoral approaches to data access, a recent legislative proposal for access to data in the US automobile industry will be assessed. As unfair trading laws as such are ill-equipped to bring forth workable access criteria, the paper argues for a fine-tuned sectoral access approach to balance the business interests of dataholders against those who depend on access for competing on aftermarkets.