Big Data and EU Antitrust Probes

Six months ago, the European Commission said its antitrust inquiry revealed that Google’s use of its very popular search product violated the EU’s competition standards.  This week the Commission released the text of its report.  The previously announced 2.4 billion Euro fine was affirmed.

As if to divert attention away from the antitrust report, the EU’s Competition Commissioner, Margrethe Vestager announced that henceforth she might consider “big data” as a potential advantage that firms could use to exclude rivals from markets.  She mentioned Google, Facebook and BMW as examples.  If the EU decides that use of big data is evidence of wrongdoing, then logically it should also probe abundant capital, intellectual property and workforce savvy.  Each of those is a strength or advantage that firms purposely collect in order to perform better than their rivals in any marketplace.

It sounds like the EU expects the wisdom behind collection and use of big data must be converted into a public good, something that all rivals can feast on like government cheese.  The use of big data is something a society should rejoice in, not condemn, because it is often the root of innovation and aggressive competition.

Big data is not “evil” and it is unlike the crony capitalism and state ownership of enterprises operating in commercial marketplaces that produce strong disadvantages to any privately owned rival.  Surely, the EU should consider preferential treatment by the state as an advantage that helps exclude rivals.  Preferential treatment by government in an otherwise competitive market, is antitrust wrongdoing.

The EU may be unaware of how deeply major EU companies collect and rely on big data and the EU’s targets for antitrust prosecution must be chosen even handedly.

The mention of BMW is helpful, but there are scores of firms in the EU that use big data. The EU wants “to ensure that business rivals aren’t prevented from competing because they lack access to that information.”  If the EU follows through on its musings, firms operating in the EU will face a ridiculous choice: should they cease using big data or should they avoid prosecution by offering rivals a copy of its data?

Allianz, a German giant in finance and insurance collects big data on ship hulls and their operation as an essential “solution to understanding what has happened with marine losses.”  Big data helps Allianz set marine insurance contract terms and insurance pricing for customers.   If big data becomes an antitrust hot button, Allianz might want to comply with the EU’s sentiments by sharing loss experiences with other insurers (wouldn’t that be collusion?), or they might want to keep secret the reasons for their financial performance (thereby creating evidence for antitrust prosecutors).

Likewise, in property insurance, Allianz’s relies on the evolving “development of new products, complex risk simulations, risk culture, big data, enterprise risk management, resilience, quantitative risk management, emerging markets and corporate governance.”

Big data is often a key ingredient in the development of innovations. Big data can be collected and organized by almost any firm.  A superior analytics and data collection strategy is an investment that should not have to be shared with rivals.

Airbus, one of EU’s showcase successes also depends on big data.  “The current A350 model has a total of close to 6,000 sensors across the entire plane and generates 2.5 Tb of data per day.”  Airlines have discovered that the right analytical systems can be used to eliminate inefficiencies due to redundancy, predict routes their passengers are likely to need, and improve safety.   “Airbus partnered with IBM to target [fuel economy] with Big Data and analytics.”  Airbus should not have to share its big data with Boeing, nor should it be tarred for antitrust behavior if it keeps operating data secret.  Tellingly, “Ms. Vestager said the EU hasn’t found serious data-related concerns so far.”

The EU’s own study of state owned enterprises (SOEs) sought to identify reforms “aimed at improving their efficiency and their effectiveness in achieving their objectives (both commercial and noncommercial).”

Laudable, but there are antitrust overtones in SOEs.  The report noted that SOEs have “a strong tendency to permanence and to a business as usual inclination, often to the point that their existence becomes an a priori for policy makers. This may present the risk of SOEs becoming de facto partners in policy making and therefore less independent in their decisions or even used for political purposes.”

The share of GDP held by SOEs in Germany is 11%, and in France 17%.  Government ownership must exceed 50% for a firm to be considered SOE, but many firms have less than 50% government ownership, yet they lean on the advantages of political influence.

The triple role of the government as a regulator, regulation enforcer and owner of assets opens a possibility of favorable treatment granted to SOEs.  SOE advantages in the marketplace can take the form of, direct subsidies, concessionary financing, state-backed guarantees, preferential regulatory treatment, and exemptions from antitrust enforcement or bankruptcy rules.

Traditional EU antitrust standards apply to profit maximizing firms and are not aimed at preventing subsidies and artificially low prices,” common behaviors shown by SOEs.  Prosecution of crony capitalism such as was done for  EDF’s 1.4 billion Euro tax exemption is rare, yet political advantages granted to SOEs are common.

If the EU is gearing up for broader antitrust enforcements, it should be careful about what it considers an exploitable advantage in the marketplace.  Big data seems like a very poor choice.  A better yield to EU consumers would come from reining in SOE advantages over private sector competitors.

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