European Papers (Feb 2022)
Google Shopping and the Quest for a Legal Test for Self-preferencing Under Article 102 TFEU
Abstract
(Series Information) European Papers - A Journal on Law and Integration, 2021 6(3), 1345-1361 | European Forum Insight of 22 February 2022 | (Table of Contents) I. Introduction. - II. Self-preferencing as a free-standing abuse of dominance. - III. A legal test unfound. - III.1. The leveraging theory of harm. - III.2. Unequal treatment and the "no economic sense test". - IV. The route not taken. - IV.1. Applying the MEO test to self-preferencing. - IV.2. The merits of the MEO test. - V. Conclusion. | (Abstract) Does a dominant firm abuse its market power in violation of EU competition law and, more specifically, art. 102 TFEU if it accords more favourable treatment to its own products or services than to those of its rivals? In answering this question in the affirmative and holding that self-preferencing constitutes a novel type of abuse of dominance, the European Commission's Google Shopping decision (case AT.39740) expanded the scope of art. 102 TFEU into unchartered territory. The Commission found that Google had abused its dominant position by guaranteeing its own comparison shopping website a more prominent placement on the result page of its general internet search engine than rival comparison shopping services. In November 2021, this decision was upheld on appeal by the General Court of the European Union (case T-612/17 Google and Alphabet v Commission (Google Shopping) ECLI:EU:T:2021:763). This Insight critically reflects on this watershed ruling. The General Court's Google Shopping judgment poses once more the unsettled question of the exact boundaries of the concept of abuse of dominance under art. 102 TFEU. This Insight analyses different attempts by the General Court to redraw the scope of art. 102 TFEU by pinning down the constitutive elements of abusive self-preferencing. Although the Court considered various pathways to determine the legality of self-preferencing, it failed to articulate a clear legal test that establishes limiting principles as to when self-preferencing by a dominant firm violates EU competition law. In light of this finding, this Insight sketches an alternative pathway that would have enabled the General Court to ground the novel theory of harm of self-preferencing within a legally and economically sound framework.
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