Challenging Data Monopolies

The essential facilities doctrine as a means to enhance competition in the EU

Martin Erlebach

Zitiervorschlag: Martin Erlebach, Challenging Data Monopolies, in: Jusletter IT 30. April 2025

Data monopolies are a present challenge to the EU digital economy influencing multiple markets such as various online and social platforms and the emerging generative AI market as well. While many different approaches are being considered when dealing with them, the essential facilities doctrine gained recognition as a tool to combat data monopolies as well as finding a reflection in EU and national law. This article explores the limits of applying the doctrine as a solution to data monopolies in its almost pure form, such as is the case in the German Act Against Restraints on Competition, as well as in the form of a “reflection” in the Data Act and Digital Markets Act. Mainly exploring the questions of who should decide what data constitutes the essential facility and how different access regimes to data made available may work against the opening up of the digital market. The main contribution of this article is the critique of the essential facilities doctrine when used in a more concrete and practical setting as a tool to regulate data monopolies and thus helps move the discussion of regulating data monopolies forward while highlighting the specifics of data monopolies.