Cloud Portability and Interoperability under the EU Data Act: Dynamism versus Equivalence

(by Sean Ennis and Ben Evans) For the EU legislator, the proposal for a Data Act represents an important step towards the enactment of long-term rules aimed at establishing good governance of the data economy and appropriate incentives to innovate. While the proposed regulation contains many valuable provisions that are worthy of implementation, we find that insufficient thought appears to have been given to the potential implications of the cloud portability and interoperability provisions for competition and innovation. The broad idea with these provisions is to ensure that cloud customers are not locked-in to their current provider. Preventing lock-in is not easy, though, and entails the development of specific rules. One of the key proposals entails the establishment of ‘equivalence’ between cloud computing services. This assumes the existence of sets of ‘equivalent services’ and extends, under certain conditions, to the achievement of ‘functional equivalence’ across those services. Such an equivalence could facilitate the overarching objective of enabling cloud customers to switch relatively easily from one provider to another and to interoperate between different cloud providers. Although laudable in principle, an expansive definition of ‘equivalence’ could have unintended consequences that risks a chilling effect on innovation and competition by smaller cloud providers, and more generally upon those cloud computing services that are competing most assiduously to meet customer needs. In our recent paper, we examine the Data Act through a joint economic and legal lens, and explain why equivalence can have such a surprising unintended consequence.

The CMA as protector of leaseholders of houses?

(by Tola Amodu) The Competition and Markets Authority (CMA) has recently secured formal commitments to tackle the continuing problems experienced by leaseholders of houses. This could be heralded as a turning point in the ongoing debacle regarding the rights of leaseholders – those who while owning a property acquire only a time limited (leasehold) right to it. As the Law Commission explained in its 2020 report on the issue, ‘In England and Wales, properties can either be owned as freehold or as leasehold. Leasehold is a form of ownership where a person owns a property for a set number of years (typically, 99 or 125 years) on a lease from a landlord, who owns the freehold. Flats are almost always owned on a leasehold basis, but in recent years it has also increasingly been used for newly built houses. It is estimated that there are over 4 million leasehold homes in England alone’. The central problem is that in exchange for acquiring the leasehold interest, the leaseholder typically has to pay ground rent and certain service charges to owner of the freehold. Buyers may not fully understand that ground rents and service charges can increase exponentially over time, or that this can make the subsequent sale of the property economically unviable. This blog post explores the consequences of the CMA’s intervention and asks whether the commitments do enough to address this problem.

Do Plans for a European Super League Breach Competition Law?

(by Andreas Stephan) The world of European football was thrown into controversy this week by the announcement that 12 leading clubs have agreed to join a new European Super League (ESL). Unlike the Champions League, the ESL will consist of a permanent membership, with only 5 of its 20 slots open to qualification from other teams. The move has widely been condemned by sports fans and political leaders, and UEFA have said, ‘We will consider all measures available to us, at all levels, both judicial and sporting in order to prevent this happening. Football is based on open competitions and sporting merit it cannot be any other way.’ This blog takes a brief look at the possible competition law implications of the Super League.