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Edurne Navarro Varona

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Stephen Bottomley

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Andreea Antuca and Robin Noble

There has been a data revolution: the combination of sensors, processing power and mobile communications means that there is more of it, and it is having a greater impact on our lives than ever before. Across the world, there have recently been many new initiatives and legislative proposals for opening up access to some of that data. This is often driven by two different motivations: the desire to create new positive outcomes with existing resources, and the desire to correct negative impacts on competition in markets. To regulate data access properly, it is necessary to understand what makes data different and what its value is. If data access is going to be mandated, how can one value the data that a business holds, and set fair and reasonable charges for access to it? Economic tools that analyse the cost of creating the data, and the benefits derived from it, provide critical insight into this question.

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Nima Lorjé and Ariela Stoffer

Commission inspections pursuant to Article 20(4) of Regulation 1/2003 (i.e. dawn raids) interfere with the privacy rights of companies and individuals. This interference is disproportionate when it is not consistent with the requirements laid down in Article 7 of the Charter of Fundamental Rights of the European Union and Article 8 of the European Convention for Human Rights. In its recent judgments in the French Supermarkets cases, the General Court partially annulled four Commission inspection decisions for constituting an arbitrary and unjustified interference with the privacy rights of the inspected companies. The General Court found that the Commission had initiated inspections without having sufficiently serious evidence in its possession. This article examines this finding of the General Court and its practical implications for the protection of companies’ privacy rights in the context of dawn raids. In addition, this article examines possible remedies for challenging the seizure and copying of documents containing personal information of raided companies’ staff during a dawn raid.

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Joseph M. Carpi

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James Crawford, Andrew Sanger, Rumiana Yotova, So Yeon Kim and Tom Boekestein

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Nick Dadson, Iain Snoddy and Joshua White

‘Big data’ and ‘big tech’ have become central topics in recent antitrust debate and regulation. For example, the Competition and Markets Authority (CMA) recently published a report on online platforms, expressing concerns that the major platforms like Google are now protected from competition by such strong incumbency advantages. Underlying the CMA's theory of harm is the essential facility theory of antitrust, under which Google's ability to control access to its click-and-query data is seen as preventing its rivals from competing effectively. EU jurisprudence has identified three criteria to determine whether data are an essential facility and whether access should be mandated. First, the data must be indispensable to compete in the market. Secondly, absent data sharing, technical improvements by competitors must be hampered or precluded. Thirdly, there must be no objective justification to refuse competitors access to the data. It is difficult to reconcile the authorities’ concerns with Google's click-and-query data with these criteria, however. Actual and potential alternatives exist; Google's competitors have been innovating in the search market for more than a decade; and there are objective reasons to limit data access, including threats to innovation and privacy concerns.

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Ambroise Descamps, Timo Klein and Gareth Shier

In the modern economy, algorithms influence many aspects of our lives, from how much we pay for groceries and what adverts we see, to the decisions taken by health professionals. As is true with all new technologies, algorithms bring new economic opportunities and make our lives easier, but they also bring new challenges. Indeed, many competition authorities have voiced their concerns that under certain circumstances algorithms may harm consumers, lead to exclusion of some competitors and may even enable firms (knowingly or otherwise) to avoid competitive pressure and collude. In this article, we explain how algorithms work and what potential benefits and harms they bring to competition.

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Anne Peters, Heike Krieger and Leonhard Kreuzer

As a standard bridging law and other spheres of normativity, due diligence is pervasive across numerous areas of international law. This paper defines the features and functions of due diligence, illustrating how the concept's development reflects structural changes in the international legal order. Concerning their content, due diligence obligations can be separated into two overlapping types: procedural obligations and obligations relating to States' institutional capacity. Thus, due diligence serves to manage risks, compensate for States' freedoms being circumscribed through legalisation, expand State accountability and possibly stabilise the international order through ‘proceduralisation’. However, it is argued that due diligence cannot be characterised as a general principle of international law due to its diverse content in different fields of international law and its dependence on accompanying primary rules. Finally, it is contended that due diligence introduces certain risks, particularly by diluting States' substantive obligations and contributing to the rise of ‘informal’ international law.