Antitrust Unchained: The EU's Case Against Self-Preferencing

In: GRUR international: Journal of European and International IP Law, Band 72, Heft 6, S. 538-556

Abstract

Abstract
Self-preferencing is the symbol of the competition policy Zeitgeist in digital markets. Large online platforms acting as gatekeepers to their ecosystems and engaging in a dual mode intermediation are accused of taking advantage of their hybrid business model by granting preferential treatment to their own products and services. Alongside the recent legislative initiatives undertaken around the world to impose a neutrality regime over digital gatekeepers by targeting different forms of self-preferencing, this practice is also emerging in Europe as a new antitrust theory of harm advanced by courts and competition authorities. In the aftermath of the General Court's decision in Google Shopping and against the risk that the new label may merely provide antitrust enforcers with the opportunity to skip the legal standards and evidentiary burdens required to prove traditional anticompetitive behavior, this paper investigates whether and to what extent self-preferencing could be considered a new standalone offence in EU competition law.