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The European Commission is accepted to use Google LLC’s accretion of Fitbit Inc. as a analysis case for its admission to data-driven acquisitions, attorneys told S&P Global Bazaar Intelligence.



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The companies apprehend the $2.1 billion accord to abutting in 2020, accountable to authoritative approval from the European Commission and U.S. authorities. While Google’s bound bazaar allotment in wearables suggests technology overlap will not be an affair in accepting authoritative approval in Europe, the ascendancy will heavily analyze the chase engine’s accretion of data, attorneys said.

Data aegis will “clearly be an issue,” Partner and Co-Chair of Clifford Chance’s Global Antitrust Group, Thomas Vinje, said.



Google may accept to accomplish assertive commitments to defended approval, such as befitting Fitbit’s abstracts abstracted for Google’s own backing of claimed data, Vinje said.



Jurisdiction matters

Imposing such a brake on the accord would crave the EC to accomplish a articulation amid its address – antagonism law – and abstracts aegis law, said Partner and Head of Antagonism (Germany) at law close DWF Daisy Walzel. This would represent a addition of the EC’s jurisdiction, and appropriately the case would be arduous for the body, she said.

Forcing Google to accumulate Fitbit’s abstracts abstracted is additionally an abortive band-aid if the EC wants to bankrupt Google of acute healthcare data, said a Brussels-based antagonism advocate who did not ambition to be named. The chase agent already owns a cogent bulk of such abstracts in its activity sciences assemblage Verily, this advocate said.

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Despite this, the EC will acceptable use the Google-Fitbit transaction to try out alleged “theories of harm” – means in which antagonism could be abnormally impacted – for data-driven deals, the advocate said. These could accommodate the “accumulation of data” and whether abstracts is an “essential facility” and so a absorption of abstracts aural a distinct aggregation can abuse competition, the advocate said.

This could accomplish Google-Fitbit an important precedent, Walzel said. “Generally bloom abstracts is advised the best acute abstracts of all. But the catechism is whether it should be for the EC in this alliance case to appraise whether this accord is adverse to antagonism and accordingly that the bloom abstracts complex should be protected,” Walzel said.

The affair would commonly be advised by abstracts aegis regulators, she said. One barring is the German antagonism ascendancy in February arty restrictions on Facebook Inc.’s accumulating of WhatsApp Inc. data. The EC accustomed the amusing media company’s accretion of the messaging app in 2014.

U.K. Member of Assembly and Deputy Leader of the Labour affair Tom Watson reportedly alleged for Google Fitbit to be advised by the country’s abstracts aegis regulator, the Advice Commissioner’s Office. Watson, who additionally had a arresting role in the political attack to block 21st Century Fox’s accretion of Sky, has back appear he will angle bottomward and not run in the U.K.’s Dec. 12 accepted election. Watson’s abandonment from assembly makes it beneath acceptable that the UK will feel pressured to ask to arbitrate in the Fitbit deal.

Review precedent

This is not the aboriginal time the EC has scrutinized a data-driven transaction. Apple’s accretion of Shazam in 2018 could be the best precedent, attorneys said. The EC accustomed the accord but afterwards administering an all-embracing investigation. The EC has 25 alive canicule to analysis a transaction beneath “Phase I” and a added 90 alive canicule if it opens an in-depth, or “Phase II”, investigation.

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On aperture the probe, the EC said it was “concerned that, afterward the takeover of Shazam, Apple would admission admission to commercially acute abstracts about barter of its competitors for the accouterment of music alive casework in the EEA [European Economic Area].”

“Access to such abstracts could acquiesce Apple to anon ambition its competitors’ barter and animate them to about-face to Apple Music.”

For the Google-Fitbit deal, the EC will appraise whether the chase company’s competitors can calmly admission the array of abstracts Fitbit specializes in, Vinje said. The EC will additionally ask how accordant Fitbit’s bloom abstracts is in the online announcement market, Vinje said. It is acceptable “highly relevant,” he said.

Google is acquainted of this. In a blog column acknowledging the deal, Rick Osterloh, Google’s chief carnality admiral of accessories and services, said the aggregation will not advertise users’ claimed advice to anyone, and Fitbit’s bloom and wellness abstracts will not be acclimated for Google ads. Fitbit users additionally will be able to review, move or annul their abstracts whenever they choose, according to the blog.

Aside from Apple-Shazam and Facebook-Whatsapp, the EC additionally advised Microsoft Corp.’s accretion of LinkedIn in 2016. The abode amusing media company’s accretion by Microsoft underwent the aforementioned akin of EC analysis as Shazam’s accretion by Apple. Microsoft had to action concessions to get the accord through, including acceptance users to uninstall LinkedIn if it came preinstalled on Microsoft devices.

Debate about whether the EC’s address continued to abstracts aegis apropos was occurring about the time of the Microsoft-LinkedIn deal; however, theories of abuse such as accession of abstracts were beneath developed at that time, the Brussels-based antagonism advocate said. The EC is aggravating to change the way these affairs are beheld so that abstracts aegis can be bigger scrutinized afore the parties combine, the advocate said.

Questions about the abode of abstracts aegis apropos in EU antitrust law accomplish the aftereffect of the Google-Fitbit case adamantine to predict.

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“I wouldn’t be afraid if the EC were to block [Google Fitbit], but I am not admiration that,” said Clifford Chance’s Vinje.

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