Access to In-Vehicle Data by Third-Party Service Providers: Is there a Market Failure and, if so, How Should it be Addressed?

By Damien Geradin (Geradin Partners)

Data generated by modern vehicles – both private and commercial – (in-vehicle data) can be used to develop new services to be offered to automotive vehicle drivers and passengers. This has generated an interest from third parties who wish to access these data to develop such services. While vehicle manufacturers are willing to provide access to in-vehicle data through the Extended Vehicle Model, third-party service providers consider that this form of access is inadequate. Instead, what they want is to access the vehicle “resources”, including the ability to install their own software in the vehicle via an “open-access platform”, as well the ability to directly communicate with the driver through the Human Machine Interface.

Assuming that third-party service providers do not have access to the in-vehicle data or resources they need to provide their services, I examine whether they could rely on EU competition rules and, in particular, on Article 102 TFEU to obtain such access. The application of the refusal to deal case-law to data requests by third-party service providers may prove challenging for several reasons, as they would have to show that (1) access to such data is indispensable to provide their services, and (2) the refusal by a vehicle manufacturer to provide such access would allow it to monopolize a downstream market. Moreover, Article 102 TFEU cannot force vehicle manufacturers to create an open-access platform (where no such platform currently exists) that would allow service providers to install their own software in the vehicle.

If competition law is not the right tool to mandate access to in-vehicle data or resources, I examine whether such access should be ensured through regulatory intervention. The EU should only pursue that path in case of proven market failure and should opt for a cautious approach considering that regulation can create serious compliance costs and produce unintended consequences. In addition, the EU should make sure that granting access to in-vehicle data or resources should not be at the expense of vehicle safety/security. To draw analogy, although millions of apps relying on the data generated by the use of smartphones can be found on the App Store or the Play Store, both Apple and Google impose extremely strict review processes to ensure that these apps are safe for the device and its users. Vehicle manufacturers should thus at the very least have the right to ensure through appropriate measures that access to in-vehicle data/resources does not endanger the safety and security of their vehicles, especially since the risks associated with the use of a vehicle are much greater than those to which smartphone users are exposed. Finally, the EU legislator should promote innovation and avoid locking the industry in a particular technological solution.

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