Antitrust Chronicle^® – Self-Preferencing

Dear Readers,

What is self-preferencing? The term has entered the antitrust lexicon in the wake of recent investigations into the conduct of large technology companies. In essence, it refers to situations where a company with multiple activities uses its position in one market to favor its activities in another.

But is this something new? Self-preferencing is closely related to other categories of monopolization, notably refusals to supply and discriminatory conduct. The rules governing these categories of conduct have developed over time, with decisionmakers and courts elaborating specific criteria to distinguish abusive conduct from competition “on the merits.”

Self-preferencing represents another category of conduct, which overlaps in substance with that covered by the existing rules. Critics of the doctrine argue that self-preferencing is not new – but seeks to prohibit conduct that was previously found to be lawful under the established rules, without coherently explaining why this should be the case. Its proponents point to the fact that abuse of dominance prohibitions are not a numerus clausus, and that self-preferencing reflects established concerns as regards anticompetitive leveraging and discriminatory conduct, adapted to the reality of business practices in the digital world.

In any event, it seems that self-preferencing (or at least the debate as regards its scope) is here to stay, either under the existing antitrust rules, or in the form of pr