A FRAND Regime for Dominant Digital Platforms

17

The concept of “fair, reasonable and non-discriminatory” access is increasingly used by competition authorities as a “good faith” notion, applied as a competition law remedy to ensure the supply of a particular product or the access to specific infrastructure. [15] In particular, FRAND access remedies in competition cases have been used in both abuse of dominance and merger review cases and across a range of sectors.

18

From a theoretical perspective, it could be argued that Article 102 TFEU already embraces a FRAND-based notion; it eschews excessive prices [16] while promoting access and non-discrimination obligations, [17] as required under the “special responsibility” of dominant firms. [18] FRAND-based access remedies have been used in Article 102 TFEU compulsory licensing cases, [19] yet this does not mean that a compulsory licensing remedy should be broadly imposed on dominant digital platforms (unless exceptional circumstances can be established). We will see that European competition law already has some experience in applying FRAND-based access remedies, where the European Commission has sought to ensure market access but did not want to engage in setting precise prices or terms. [20]

19

There have now been a number of merger review cases in Europe where parties have agreed to adopt a FRAND-based behavioural remedy to ensure that existing market players or new entrants are placed in a position where they can effectively compete with the merged company. [21] The FRAND access remedy has been qualified as an “appropriate benchmark” [22] in a merger review and applied by different jurisdictions across diverse sectors, such as medical equipment, television broadcasting, music streaming licensing, payment processing, gas networks, flight search, missile systems, technology platforms and herbicides. [23] Lessons can therefore be drawn from cases where FRAND-based remedies have been accepted to address input foreclosure concerns by ensuring access to critical “must have” inputs (considered essential for third parties to compete effectively with the merged entity), including ensuring that customers are supplied on the same or similar terms to the merged entity’s own business.

20

European competition authorities have specifically addressed the issue of ensuring interoperability between device interfaces or communications protocols, associated software and data management systems. In Newscorp/Telepiù access to platform APIs was ensured on FRAND terms, so far as was necessary to allow downstream pay-TV providers to develop interactive services compatible with the decoders and software used by the combined entity’s platform’s customers. [24] In Siemens/Drägerwerk, royalty free FRAND commitments were given to ensure continued interoperability between medical equipment platforms and hospital data management systems, including making available and maintaining all existing and future interfaces and communications protocols. [25] In Worldline/Equens the merging parties agreed to license on FRAND terms to payment network service providers (NSPs) within Germany key card and payment processing software, as well as the source code for the Poseidon software and the ZVT protocol, on which most German point of sale terminals run. [26]

21

It is worth noting that in Worldline/Equens, additional “flanking” commitments were offered to ensure that the FRAND remedy was effective. These include effectively capping software maintenance fees for 10 years; ensuring additional costs (e.g. maintenance services were also under FRAND terms); that NSPs’ access would be prioritised over Worldline’s PaySquare in case of shortage; including new modules and upgrades at no additional cost; that NSPs would have access to Poseidon source code for internal business use, in return for a one-off price-regulated fee; to place governance of the ZVT protocol with an external, independent not-for-profit, entity that would represent all market participants; that the Licensing Trustee would have access to all of Worldline licenses, contracts, pricing and invoicing conditions enabling it to effectively review the commitments, and that NSPs could seek more favourable terms if the Licensing Trustee considered PaySquare had advantageous terms; and set up a fast-track dispute resolution mechanism. Finally, as a compliance tool, a material breach of the remedies would result in NSPs having access to the source code free of charge. [27]

22

The Newscorp/Telepiù remedy is also worth further comment. During the Commission’s investigation, third parties expressed concerns that the applicable European regulatory framework, which required those operators to offer access of digital television services on a FRAND basis to all broadcasters, [28] might not be sufficient to constrain likely foreclosure by Newscorp in the Italian pay-TV market. [29] The European Commission found that cooperation with and by Newcorp or its subsidiary, NDS, was critical to enter the Italian pay-TV market. Most interestingly, the European Commission found [30] that given the technical difficulties for pay-TV operators both using a different CAS to NDS or implementing Simulcrypt obligations within a short period of time, it created a complete dependence on the combined entity from the technological viewpoint. [31] Newscorp’s control of the technical platform would give it the possibility and the incentive to set the standard for the accepted level of “intra-platform” competition. The European Commission therefore imposed measures to effectively compel Newscorp to comply with the existing FRAND rules found within the legislative framework. In that context, while a monitoring trustee was appointed to ensure compliance with the remedies, disputes related to the licensing terms fall to be adjudicated to the Italian Communications Authority, the national regulatory authority responsible for safeguarding the implementation of the regulatory framework. Newscorp/Telepiù therefore agreed to allow access to the API so far as necessary to develop interactive services compatible with the decoders used by the Combined Platform’s customers. [32]

23

In sum, the FRAND regime has now been applied by competition authorities in Europe (and indeed further afield) to ensure access to products and services across a range of sectors. FRAND access commitments have proved particularly useful and are the least intrusive remedies, where there is no adequate regulatory framework in place that addresses underlying competitive concerns. [33]

24

Competition law can therefore continue to ensure intra- and inter-platform competition by promoting access to critical inputs using a tried-and-tested regime that ensures a balance of interests, guaranteeing equality of arms in negotiations, minimising impact of regulatory intervention, and basing remedies on existing sector practices. Indeed, in setting out some lessons to be drawn from European competition cases involving platforms, Petit observes that while EU technology policy is premised on ex ante regulation, antitrust enforcement appears to effectively act as a “fact finding exercise or as a regulatory kick starter seconded by regulatory propositions, notably as relates to online platform regulation.” [34]

25

Competition law policy is an important complement to broader European policy measures, but competition policy should not be primarily driven through cases: such an approach has significant flaws. First, imposing FRAND access as a merger remedy is opportunistic and dependent upon having a notifiable merger to begin with. If there is no relevant merger review where a FRAND access regime can be considered, alternative instruments should be considered to provide guidance to undertakings. In any event, FRAND access remedies would be merger-specific and could not necessarily be applied as a universal solution to dominant digital platforms across similar markets. The same can be said for other competition enforcement measures. Second, in non-merger cases, substantive competition law investigations are inherently slow. They typically last for several years during which market developments may often render any remedy too late to address pressing competitive concerns. In addition, enforcement cases are also fact-specific and companies under investigation should be confident that their case will not be “hijacked” for policy-making purposes. Finally, if cases end up in commitment decisions, any FRAND access remedy may provide little precedential value for other companies. Consequently, competition law remedies should be complemented by broader policy measures. There is therefore something to be said for a more structured competition approach to FRAND, especially given the jurisprudence already developed by the European Commission.

26

Competition law and national competition authorities may have a role to play in providing more structural guidance to companies. As Tirole notes, “rapidly changing technologies and globalization, traditional regulatory tools have become less effective, causing competition policy to lag”, which requires more agile policies to be developed including “soft law” instruments. [35] From a competition perspective, formal guidance could well be useful where platforms risk creating silos or proprietary ecosystems, locking out alternative players. A good example relates to the connected car, which will generate data of driver and passenger behaviour and experiences, automotive diagnostics, driving and road conditions that will feed into services related to driving and linked services. To what extent should the platforms controlling the accessing of this data seek to avoid walled-gardens or silos? While platforms should assess the risk themselves, guidance from the European Commission would be welcome if only to delineate scope of action. [36] There is sufficient jurisprudence in European law for the European Commission to provide guidelines on FRAND access regimes in relation to dominant digital platforms. This would not only help to ensure that binding access regimes are adopted ex ante, but could provide guidance to companies considering offering commitments to address competition concerns under Article 9 of Regulation 1/2003.

27

Patents essential for practicing a technology standard (Standard Essential Patents or SEPs) have recently been in focus, regarding the applicability of the EU’s competition law to access to these patents. Technical standards can broadly be categorised as collaborative, when they are developed within the framework of Standard-Development Organisations (SDO), or de facto, when they are developed outside of any institutional framework of SDOs and achieve broad market acceptance to effectively become a standard on the market. Competition law in Europe has taken a FRAND-based approach to essential patents related to both collaborative and de facto standards.

28

FRAND licensing commitments, in the context of technical standards, are intended to ensure widespread access to a standard for implementers while, at the same time, providing adequate rewards and incentives to technology developers. Although FRAND commitments are voluntarily given by SEP owners to SDOs, the European Commission views that the existence of a FRAND policy will place the SDOs, and their contributing members, within the safe harbour of Article 101 TFEU. [37] Complying with the FRAND safe harbour means that there is, in principle, no need to undertake the often-complex task of assessing market power or dominance of SEP owners.

29

A FRAND commitment may also have an important impact on the availability of injunctive relief which, if granted by a court, may deny the infringer access to that standard. In the Huawei v ZTE, [38] the Court of Justice of the EU (CJEU) considered whether a SEP owner found to be dominant had abused that dominant position where it sought an injunction for the infringement of its SEP, to which a FRAND commitment had been made. The Court held, amongst other things, that a competition law defence could be raised by an infringer of an SEP against a request for an injunction, where a dominant SEP holder had not followed certain steps, including making a FRAND offer. [39] Following those steps creates a safe harbour for the SEP holder when requesting an injunction. However, the Court also set out certain steps that the infringer has to follow if they were to be able to avail themselves of such a defence. As a result, the Court set out a negotiating process that, where followed, should lead to a FRAND outcome. What Huawei v ZTE shows is that, in the event of a dispute, where both parties follow the steps required of them, access on a FRAND-basis is ensured and third parties are not unduly excluded on the basis of proprietary rights. It also shows, at a high level, that the Court built its decision around the FRAND commitment.

30

In the context of de facto standards, the German Bundesgerichtshof permitted a competition law defence to be raised where a patent infringer was not able to get a FRAND-like licence to a patent in a de facto standard, even where a FRAND commitment had not been made expressly or required by regulation. [40]

31

In conclusion, EU competition law promotes licensing of SEPs on FRAND terms both by providing a safe harbour under Article 101 TFEU to SDOs, which have policies requiring FRAND commitments from their members and by ensuring a balanced path, based on good faith behaviour, to resolving SEP licensing disputes that would result in a FRAND agreement.

33

As mentioned, FRAND is a widely used notion in the context of licensing patents that are essential to practicing a technology standard. The FRAND commitment is voluntarily given by a technology contributor to an SDO. At its highest level, the FRAND commitment exists to ensure access to patented essential technologies on terms that are fair and reasonable for both licensor and licensee in order to, firstly, guarantee the uptake of new technologies and its wide diffusion, and secondly, encouraging valuable technology contributions to be made to standardisation efforts (thus encouraging further incentives to innovate in future standardisation). [41] The FRAND regime therefore seeks to balance competing interests of different players and making standardisation an attractive enterprise for all kinds of business models. Depending on the jurisdiction, a FRAND commitment is usually an enforceable defence under contract law or other principles such as quasi-contract, estoppel and in some instances antitrust law. [42]

34

Standards are a typical example of the creation of an innovation platform, done openly and transparently. As Tsilikas noted: “Collaborative standardization under the auspices of [SDOs] has, thus far, a remarkable record of breakthrough technological achievements, high-quality, cutting-edge standards, vibrant follow-on innovation in the implementation of standards and open, competitive upstream and downstream markets. Standardization in wireless telecommunications is driven by an inexorable dynamic: more innovative standards, services and products increase consumer demand and increased consumer demand calls for more investment in R&D, more innovation and better-performing interoperability standards.” [43]

35

Core to that openness and transparency is the access to essential technology through the FRAND regime. The FRAND regime has empirically led to hugely successful results, ensuring both broad access to and wide dissemination of advanced technologies. [44]

36

What the precise rights and obligations are that the FRAND regime creates depends on the intention of the parties (usually set out in the SDO’s IPR policy) and the specificities or usual practices of the particular industry. [45] The flexibility of the FRAND commitment has led it to be broadly adopted by SDOs across the board, notably the formal EU standardisation bodies, ETSI and CEN/CENELEC, as well as numerous informal standards organisations. [46] As a result, this industry-led solution has been enshrined in the European Standardisation Regulation, [47] and broadly promoted in European standardisation policy, [48] as part of the regulatory framework around standards development and dissemination.

37

Indeed, the European Commission’s recent FinTech Action Plan notes that that “An EU-wide FinTech market will not reach its full potential without the development of open standards that increase competition, enhance interoperability and simplify the exchange of and access to data between market players”. [49] Implementing such interoperability can be done through ad hoc interfaces, which raises efficiency and competition issues, or interoperability standards for the whole market on the basis of the principles within the European Standardisation Regulation which, as noted above, seeks to ensure effective access through FRAND terms.

38

As a final note, the negotiation framework devised by the CJEU in Huawei v ZTE could provide inspiration for other non-SDO situations. In Huawei v ZTE the CJEU required the holder of the essential input to set out clearly what the input consisted of as well as its price, where upon the customer, having all the elements necessary to take a decision, has to accept to negotiate and diligently agree to the offer or make a reasonable counter offer. [50] Such a process is attractive as a policy solution, but it has to be acknowledged that the system was devised in the event of an inability by the parties to reach agreement and on the basis that one party had already committed to allow access to some of its technologies on FRAND terms. It cannot be used as a procedural straight jacket, as parties could well reach agreement outside of such a process. [51]

39

The Regulation for the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) [52] creates a FRAND-like access framework for sharing previously submitted reports and data between companies. In particular, it creates a framework whereby the holder of this critical information (entities that have previously registered particular chemicals) and a potential registrant “make every effort to ensure that the costs of sharing the information are determined in a fair, transparent and non-discriminatory way”. [53] It is notable that REACH echoes a central tenet in Huawei v ZTE, where the European Court imposes obligations on both licensor and potential licensee to seek agreement in good faith. REACH also provides for rules on cost-sharing (notably where there is no agreement found between the parties), as well as a dispute resolution mechanism, while respecting access to courts.

40

In considering data sharing requirements, Drexl notes that REACH contains certain features “that could be used as guidance for similar legislation in other fields”.  [54] These include: (i) the public interest in creating the access regime; (ii) a framework of contractual negotiations favouring “a pro-market solution over direct government intervention”; [55] (iii) a concrete base for calculating compensation, relying on the cost for undertaking the relevant study; (iv) a mechanism for dispute resolution “that enables the public interest to prevail and that provides sufficient legal certainty for the parties when they assess whether it makes sense to depart from that rule”. [56] One particularly interesting aspect in looking to REACH as inspiration for FRAND-based access regimes is that the public interest is broader than ones that traditionally have resulted in compulsory licensing regimes.

41

Further, as Drexl notes, the REACH framework relies on bilateral commercial negotiations to determine the conditions for a pro-competitive solution. [57] While the REACH legislation does not engage in price-setting, which is so difficult for a legislature to get right, REACH does provide cost “metrics” in the event that no agreement can be arrived at; costs are limited to sharing the proportionate costs of information necessary to satisfy registration requirements. [58] Therefore legislation can provide guideposts to the parties in the event of a dispute, but the legislation need not get engaged in creating value homogeneity. These metrics are, however, specific to the scope of REACH related to the sharing of scientific studies and data and so are generally not applicable to other sectors.

42

The recently adopted European Electronic Communications Code (EECC) provides updated EU-wide telecommunication rules. [59] It contains a number of provisions providing for access to and interconnection of electronic communication networks on terms that are fair, reasonable and non-discriminatory, or similarly-phrased terms.

43

For instance, the EECC allows National Regulatory Authorities (NRAs) to require operators to interconnect their networks and make their services interoperable; [60] provide access to wiring and cables facilities; [61] share passive infrastructure and conclude localised roaming access agreements. [62] Under all these scenarios, access and interconnection conditions must be objective, transparent, proportional and non-discriminatory. While such conditions are not further defined in the EECC and are to be further elaborated by NCAs, they substantively resemble a FRAND obligation. [63]

44

Moreover, in certain instances the EECC specifically allows NRAs to impose FRAND-based access obligations. For example, NRAs may require access on FRAND terms to cables and wiring beyond the first distribution point; [64] access to relevant facilities in order to ensure accessibility for end-users to digital radio and television broadcasting services; [65] and access to technical services enabling digitally-transmitted services to be received by viewers or listeners by means of decoders. [66] Additionally, holders of IP rights needed to access products and systems should ensure that licences to manufacturers of consumer equipment are on FRAND terms. [67]

45

Besides the above obligations that are applicable to all operators, a specific regulatory regime applies to operators found to have “significant market power” (SMP). Namely, NRAs may impose a number of obligations on such operators, such as the obligation of transparency, requiring operators to make public their terms and conditions for interconnection and access, including information on pricing; [68] the obligation of non-discrimination treatment of other similarly situated companies; [69] or even the direct price control measures for interconnection and access. [70] The reasons for regulating operators with SMP is to ensure ex ante competition is maintained, when traditional ex post competition law remedies may not be sufficient nor adequate to safeguard effective competition in the telecommunications market.

46

The EECC therefore contains FRAND-based access regimes to networks, infrastructure and content. It is primarily managed by NRAs, who are best placed to assess the situation on the ground, given the nature of the markets. These access regimes are imposed in order to satisfy various public policy objectives, including ensuring full end-user connectivity, resolve infrastructure bottlenecks or safeguard ex ante competition, as an adjunct to ad hoc competition enforcement. The EECC thus shows that European legislation does not shy away from mandating access to critical infrastructure in order to satisfy broader policy objectives.

47

Interestingly, the EECC also includes an obligation to provide interoperability between “interpersonal communication services”, which reach a significant level of coverage and user uptake. [71] This provision may arguably be used by NRAs to impose an obligation on widely used communication applications or social platforms to interoperate. [72] However, such regulatory interventions may be possible only where end-to-end connectivity is endangered and only to the extent necessary to ensure connectivity between end-users. [73] Nevertheless, this provision represents an evolution in providing a regulatory solution to ensuring interoperability between particular types of platforms that have a significant reach, though it may not be dominant in the competition law sense. The FRAND-based remedy is available to satisfy the broad public interest objectives found in the EECC, that include ensuring freedom of expression and information, as well as media pluralism, access to and take up of very high capacity networks and promotion of competition in the provision of electronic communications networks and associated facilities. [74]

48

Directive 2003/98/EC (amended by the Directive 2013/37/EU) on re-use of public sector information, introduces FRAND-based access conditions to enable access to such information. [75] Rather than referring expressly to the expression “fair, reasonable and non-discriminatory”, the Directive fleshes elements to access public sector information including reasonable remuneration, non-discriminatory access and transparency, which are central elements to FRAND-based regimes.

49

In detailing the conditions for access to public sector information, the Directive sets out the following FRAND-based elements:

50

The European Union’s Framework Programme for Research and Innovation (Horizon 2020) is governed by Regulation 1290/2013, [85] that lays down the rules for participation and dissemination in Horizon 2020 over the years 2014-2020. In general, it can be said that the EU’s “Horizon 2020” Framework Programme applies a FRAND-based model to enable access to the results of EU-funded projects, with the overarching principle for access being one of fairness and reasonableness. Article 48 of that Regulation covers access rights for exploitation and notes that, whether linked to access between project participants of the results or background information, or other, such access shall be granted under fair and reasonable conditions (subject to agreement).

51

The Commission’s own Model Grant Agreements for the EU’s “Horizon 2020” Framework Programme applies the model set out in the Regulation and, together with the Regulation provides an understanding of the EU’s interpretation of FRAND access as a condition for accessing the results of European funded research. [86] It covers the rights of participants to the agreement (“beneficiaries” of funding) to have access under fair and reasonable conditions to each other’s results (relevant background input held by participants prior to their accession to the project) that are needed for exploiting their own results. [87] Such access conditions apply where beneficiaries give each other access to the results needed for implementing their own tasks (or to other beneficiaries or affiliated entities). [88] In addition, there are options to require (when foreseen in the work programme) access to third parties for additional access rights for interoperability under fair and reasonable or royalty free conditions. [89]

52

Article 2(1)(10) of the Regulation defines “fair and reasonable conditions” to mean “appropriate conditions, including possible financial terms or royalty- free conditions, taking into account the specific circumstances of the request for access, for example the actual or potential value of the results or background to which access is requested and/or the scope, duration or other characteristics of the exploitation envisaged”. [90] This definition applies to all the access situations described above. [91]

53

It is notable that, no matter whether the access requirements relate to members of the consortium or their affiliates, whether for fulfilling their tasks, for exploiting their own efforts, or as relates to third parties (in relation to interoperability), the access regime remains the same. One can assume that “fair and reasonable” was considered by the legislature as flexible enough to deal with this broad range of interests and situations. For this reason, the definition implies that conditions can change depending on the circumstances of the request for access (i.e. the nature of the parties), as well as depending on the subjective nature of value or “other characteristics”. Again, while not using the expression “FRAND”, it can be assumed that the non-discriminatory aspect is included, as the definition specifically allows for differentiation where such a differentiation can be made.

54

European Regulation (EU) 715/2007, relating to emissions from light passenger and commercial vehicles and access to vehicle repair and maintenance information, contains a FRAND-based information sharing regime. It imposes specific obligations on vehicle manufacturers to enable access to vehicle repair and maintenance information both to authorised and independent dealers and repairers. [92] Such access is on a non-discriminatory basis while permitting manufacturers to charge a "reasonable and proportionate fee". [93] However, the Regulation also notes that such fee is not reasonable or proportionate “if it discourages access by failing to take into account the extent to which the independent operator uses it”, making it clear that the fee also needs to be in proportion to the importance of the information to the user as well as a reasonable value to the manufacturer. [94]

55

Although not using the exact “FRAND” wording, the Vehicle Emissions Regulation very much mirrors the FRAND intention of ensuring that fees are reasonable and non-discriminatory, while at the same time not discouraging access.

56

The revised Directive on Payment Services in the Internal Market [95] of 25 November 2015 sets out that account servicing payment service providers, such as banks, must allow third parties to obtain real-time data relating to customers’ accounts on a non-discriminatory basis (including without any discrimination in terms of charges, timing and priority). [96] Colangelo and Borgogno query whether banks can charge a fee for the access to front-end third-party providers and speculate that such compulsory access can be compensated, “as it happens, mutatis mutandis, with standard essential patents that are licensed under fair, reasonable and non-discriminatory (“FRAND”) terms”. [97] We agree that such access would be on the basis of FRAND principles, in accordance with the recognised commercial practices in the payment services field (rather than SEPs, per se). One can presume that where European regulation requires access to data and interoperability, such access must be on FRAND terms.

57

The European Regulation 462/2013 of 21 May 2013 [98] amending Regulation No 1060/2009 on credit rating agencies included a FRAND-like requirement. As noted in recital 38, fees charged by credit rating agencies to their clients should not be discriminatory, although charging for the same type of service to different clients can be justified by a difference in the actual costs in providing this service. New Article 3(c) goes further in setting costs parameters by requiring credit rating agencies to ensure that fees are based on the actual costs of providing the service and cannot be affected by either the level of the credit rating issued nor on any other result or outcome of the work performed. It would be logical to assume that costs for developing better software etc. would be included in the “actual” cost of assessing a customer's credit rating. Otherwise the incentive to improve credit rating services would be affected. In addition, recital 33 imposes a transparency and oversight requirement, requiring credit rating agencies to disclose to the European Securities and Markets Authority their general policies and fees received from each of their clients, in order to allow for the effective supervision of the rules.

58

The pricing of many financial instruments and contracts rely on the accuracy of benchmarks. However, following the serious manipulation of LIBOR, EURIBOR and other benchmarks by various cartels [99] and the impact that the failure of critical benchmarks can have on market integrity, financial stability, consumers, the real economy, or the financing of households and businesses, the EU adopted the Benchmarks Regulation. [100] Specifically to mitigate the market power of critical benchmark administrators and bring discipline to the market, the Regulation contains a FRAND regime imposing, under Article 22, the obligation on administrators of critical benchmarks, including critical commodity benchmarks, [101] to take “adequate steps to ensure that licences of, and information relating to, the benchmark are provided to all users on a fair, reasonable, transparent and non-discriminatory basis”. [102] This requirement is without prejudice to the application of EU competition law.

59

The Commission is already considering the possibility of sharing the access to data between businesses, with FRAND access being one of the considered models. In 2017 the Commission published a Communication entitled "Building a European Data Economy". In relation to access to data, the Commission explored the idea of applying a FRAND regime, whereby access to machine generated data would be granted against remuneration. [103] The Communication notes that: “A framework potentially based on certain key principles, such as fair, reasonable and non - discriminatory (FRAND) terms, could be developed for data holders, such as manufacturers, service providers or other parties, to provide access to the data they hold against remuneration after anonymisation. Relevant legitimate interests, as well as the need to protect trade secrets, would need to be taken into account. The consideration of different access regimes for different sectors and/or business models could also be envisaged in order to take into account the specificities of each industry. For instance, in some cases, open access to data (full or partial) could be the preferred choice both for firms and for society.” [104]

60

The Communication highlights that a FRAND regime is business model neutral, recognising that data will have a value to the owner, while permitting both remuneration-based, as well as free access, and is flexible enough to take different sectorial interests and regulatory parameters (in this case anonymisation) into account. The Staff Working Document (SWD) accompanying the Communication acknowledges that inspiration can be found across a range of instruments, including some of those explored in the sections above. [105]

61

Following a public consultation, the Commission in 2018 published a Guidance on Sharing Private Sector Data in the European Data Economy. [106] It recommended companies to consider voluntarily granting access to non-personal data to other businesses and, when doing so, to adhere to certain principles related to transparency, respect to each other’s commercial interests, to ensure undistorted competition, and minimise lock-in. [107] The Commission at least appears to recognise that the problems raised by big data and dominant digital platforms could be resolved by some form of data sharing requirement on principles that mirror notions protected by the FRAND regime.