Self-preferencing in the EU: a legal and policy analysis of the Google Shopping case and the Digital Markets Act

Abstract

This article discusses the EU General Court’s Google Shopping judgment (Case T-612/17), which deals with online self-preferencing. Self-preferencing is a novel abuse of dominant position (Article 102 TFEU), which consists of the prominent display and positioning of the dominant undertaking’s own service (comparison shopping service in this case), and demotion of the competitors’ services, on webpages generated by the dominant undertaking’s general search services. The key-principles in the legal reasoning of the General Court’s ruling were the prohibition of discrimination and coterminous concepts such as ‘equal opportunities to compete’ and ‘competition on the merits’. The differential treatment between Google’s own service and those of its competitors derived from Google’s subjection of its adjustment algorithms only to its competitors and not to its own service. While an approach based on non-discrimination is contentious, on the other hand Google’s conduct was neither efficient nor did it benefit consumers. The article also examines the EU Digital Markets Act’s prohibition of self-preferencing and its relationship with the Google Shopping ruling.