Bronner revisited

• Department of Law

The EUI Competition Law Working Group hosts a session with Christian Ahlborn and William Leslie.

Abstract

While the General Court’s Google Shopping judgment boldly frames self-preferencing as a new category of discriminatory abuse under Article 102 TFEU, we argue that it also articulates self-preferencing as a narrow category of abuse, relevant most notably for certain digital platforms. This narrow definition enables self-preferencing to avoid many of the conceptual pitfalls that it would have otherwise faced as a broad category of abuse restricting dominant firms from discriminating between their own vertically integrated businesses and those of their rivals.

In our view, an expansive interpretation of self-preferencing insofar as it applies to platforms by contrast would pose challenges for Article 102 TFEU as an effective and proportionate instrument for regulating such markets. We outline that self-preferencing, as articulated by the judgment, creates a powerful regulatory instrument likely to be complemented rather than supplanted by the EU’s proposed digital markets act, enabling the Commission and other regulators to police discriminatory practices by platforms falling outside the scope of the EU’s proposed digital markets act.