DATA-DERIVED MARKET POWER: TOWARD A “DATA ECOSYSTEM APPROACH” IN MERGER CONTROL

ABSTRACT Data-derived market power has historically been underestimated in merger control, contributing to current competition challenges in digital markets. This article introduces the “Data Ecosystem Approach,” a data-centred lens on ecosystem dynamics based on three drivers of data-derived market power: (i) ecosystem reach, (ii) data protection degradation, and (iii) cross-market data advantages. Applying this framework to the Google/Fitbit (2020) merger through document analysis and expert interviews, we find that the acquisition enabled Google to collect previously missing real-time health data, exploit data-related market failures to undermine consent-based remedies, and gain strategic insights relevant for its ecosystem and beyond. We then compare how different jurisdictions address these drivers, highlighting the limited recognition of merger-related privacy harm with competitive implications, and the broader impact of irreplicable data advantages. Ultimately, we advocate for stronger cross-regulatory cooperation among competition, consumer protection, and data protection authorities through joint investigations, formal referrals, and a shared understanding of relevant legal and economic concepts, drawing on the Meta Platforms v Bundeskartellamt judgment.