Examining data-related theories of harm in EU merger assessments: a systematic review of the decisional practice

The rise of data-related mergers, often approved unconditionally, and ensuing abuse of dominance have raised questions about the extent to which all aspects of data-induced market power are sufficiently considered in merger assessments. Six aspects, in particular, may affect such an assessment: data availability, data substitutability, the competitive parameter of data protection, data advantages, the data exploitation asymmetry, and interconnected product markets due to data-sharing. Through a systematic review of the EU decisional practice between 2008 and 2024, we find that although data availability and substitutability assessments have been performed more rigorously in recent merger assessments, the impact of the transaction on data protection as a competitive parameter, the replicability of data advantages and the interconnection of different product markets due to data-sharing, should be more exhaustively considered. Ultimately, no radical overhaul of EU merger control is required to address data-related competition concerns, as the main aspects of data-induced market power can and should be examined during the different phases of the traditional merger assessment.