Data sharing for collaborative research under art. 101 TFEU: lessons from the proposed regulations for data markets

Abstract

ABSTRACT Economic operators active in the emerging European data space are currently struggling with two major hurdles: (i) the lack of legal certainty regarding the boundaries of lawfulness of data sharing practices under European competition law; (ii) the lack of coherence of the European competition framework with other European Union regulatory branches. This contribution addresses identified concerns, enquiring the relevance of data sharing agreements as research and development collaborations under art. 101 TFEU. The study considers the Commission’s Guidelines on horizontal cooperation in the light of the proposed Data Governance Act and the Digital Service Package. It identifies some criteria relevant for assessing the lawfulness of data sharing agreements under art. 101(1). These criteria encompass subjective (type of undertakings involves); objective (type of data shared); structural (degree of openness) and teleological features (public interest or commercial-oriented research) of data sharing arrangements.