AUTOMATED DECISION-MAKING AND ACCESS TO DATA

Abstract

This paper explores the mechanisms by which companies can gain access to data necessary for automated decision-making in scenarios without direct contractual agreements, focusing on market-driven approaches. It introduces the concept of the essential facilities doctrine under EU competition law and examines its applicability to sets of data, alongside an examination of current ex-ante regulatory instruments which grant data access rights, such as the Type Approval Regulation, the Open Data Directive, the Electricity Directive, the Digital Markets Act, and the Data Act. These legal instruments are analysed in terms of their ability to facilitate access to data necessary for the automation of decision-making processes. In addition, the study looks at the challenges and opportunities presented by these legal instruments, including the nuances of applying the essential facilities doctrine to data. The article concludes that the most efficient way for a company to gain access to sets of data required for automated decision-making (in the absence of a contractual agreement) is to base its data access claim on an act of ex-ante regulation. If, however, such legal basis does not exist, a company could still base its data access claim on the essential facilities doctrine. The practical applicability of the doctrine to sets of data, however, remains unclear.