Data Access and Sharing in Germany and in the EU : Towards a Coherent Legal Framework for the Emerging Data Economy

Data is at the heart of the ongoing digital transformation of the economy and society. In many different ways, access to data is becoming a precondition for innovating and for competing effectively. Against this background, both the European and the German legislator are striving to develop a legal framework for the data economy that facilitates voluntary agreements on data access and sharing and mandates data portability and/or data access where it is needed to protect – and sometimes to promote – competition. The German Federal Ministry for Economic Affairs and Climate Action (BMWK) has asked the authors, whether the emerging legal framework is fit for the task of protecting and, where necessary, promoting competition, and to outline options for action in case of deficiencies. In fact, the inventory of the legal rules relating to data access and data sharing currently in place provides evidence of a great degree of legal uncertainty. Legal institutions, i.e. well-defined (intellectual) property rights, contract law principles and competition law principles, are only emerging. On the basis of this stocktaking exercise, the study discusses the need for reform and explores policy options. These relate to the European Commission’s proposal for a Data Act, European and German competition law including merger control, the Digital Markets Act and Section 19a GWB (German Act against Restraints of Competition), as well as the legal framework for data intermediaries