Self-Preferencing: A German Perspective

Prohibiting self-preferencing should remain the exception. Under current law, the non-discrimination rule in Article 102(c) TFEU is arguably only applicable to self-preferencing in cases where the undertaking is under a regulatory duty not to discriminate. It is possible to find that the prohibition of exclusionary abuses can result a de facto prohibition of self-preferencing. However, finding such an abuse must take into account the reasons why the non-discrimination rule does not generally prohibit self-preferencing. Whether this was sufficiently considered in the Google Search (Shopping) decision is debatable. The article also reports on the Draft Bill in German antitrust law that seeks to introduce a prohibition of self-preferencing that depends on the prior finding of the Bundeskartellamt that the undertaking has a “pre-eminent, market-transcending significance for competition” in a multisided market.

By Florian Wagner-von Papp¹

I. INTRODUCTION

Whether a dominant undertaking’s self-preferencing constitutes an abuse was central to the Google Search (Shopping) case:² is the preferential ranking of Google’s (or Alphabet’s) own comparison shopping service on the Search Engine Result Page (“SERP”) an abuse? The question is, however, by no means confined to the Google Shopping case, and will continue to come up especially in multisided markets, where a positive feedback loop — once started by self-preferencing — may crowd out competitors regardl