Self-preferencing between all and nothing: in search for a definition under Brazilian competition law

Abstract

The term self-preferencing has gained great prominence in the competition and regulation debate involving digital platform markets. However, it has increasingly been used to designate practices with distinct structure, economic rationale, and effects, including in contexts that fall outside of digital markets (even though those conducts already existed in preceding times and were widely scrutinized by competition authorities under the existing legal grounds). In Brazil, the situation is no different. This is due to the lack of a well-established legal test, including definitions about presumptions of illegality and burden of proof, and the attempt to concentrate, under the same “umbrella” diverse and distinct conducts. Following up on debates in international scholarship and, most relevantly, discussions within the European scenario, this article provides initial suggestions for the development of an adequate legal test for the practice of self-preferencing in Brazil. We make a preliminary attempt to differentiate between diverse categories of self-preferencing and suggest, among other aspects, that tests and theories of harm existing in CADE case law should be improved and adapted to drive antitrust analysis for those practices. This is the case, for example, for the classic (or “pure”) pattern of what the scholarship has equated to self-preferencing, being possible to turn to an adaptation of the CADE’s position on the essential facilities doctrine (EFD). We argue the essentiality test should not be completely abandoned, as it stands as a relevant divisor between distinct types of self-preferencing, with relevant enforcement implications, and provide an initial outline of an adapted legal test to assess essentiality.

Keywords

• self-preferencing
• digital markets
• platforms
• essential facilities
• refusal to deal