Self-preferencing in the digital markets : a new offence under article 102 TFEU?
This research examines the practice of self-preferencing by vertically-integrated digital platforms acting as gatekeepers, and whether such practice may constitute a standalone abuse under article 102 of the Treaty on the Functioning of the European Union (TFEU). This study is carried out against the backdrop of several prominent and public antitrust cases initiated against large digital platforms, or gatekeepers, such as Apple, Amazon, Facebook, and Google, which have been accused of exploiting their dominant position in one market to allow favourable treatment of their products, giving rise to ‘self-preferencing’ or ‘leveraging’ conduct sanctionable under EU competition law. By analysing decisions delivered by the courts and the European Commission, this dissertation examines how progressively the practice of self-preferencing has been construed as a standalone abuse within the ambit of article 102 TFEU. Chapter 1 identifies the main features of digital markets in the competition landscape and the types of leveraging behaviour developed. Chapter 2 examines how self-preferencing may fall within the scope of ‘traditional’ antitrust theories. Chapter 3 delves into the watershed Google Shopping case explaining the rationale which led to the courts classifying self-preferencing as a separate theory of harm under article 102 TFEU. Chapter 4 critically examines the legal tests developed by the courts in Google Shopping and their application to self-preferencing cases. Chapter 5 discusses the effects of the ex-ante regulations introduced by the Digital Markets Act in respect of gatekeepers. This research argues that notwithstanding the pronouncement by the courts in Google Shopping, self-preferencing as a label continues to overlap with existing legal categories. Additionally, the lack of the development of a legal test complicates its application in other anticompetitive cases.
European Union, Antitrust investigations, Antitrust law -- European Union countries, Competition, Unfair, Electronic commerce -- Law and legislation -- European Union countries
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