Self-Preferencing – Some Observations on the Push for Legislation at the National Level in Germany

While the debate on self-preferencing as a possible abuse of dominance under EU law is ongoing, various expert reports on antitrust enforcement in the digital economy identified self-preferencing as a competition issue to be tackled and provided several suggestions, including legislation. Germany has proposed draft national legislation, including a special provision prohibiting self-preferencing for companies with a paramount cross-market significance for competition. The proposal follows a hybrid approach, introducing aspects of ex ante regulation into competition law. The design raises some issues, notably that it is not limited to digital platforms and does not require any dominance. Due to its two-step approach, it may only render enforcement more effective in the mid-term. It does not resolve the issues of lack of resources at the competition authority or the difficulties to impose effective remedies to terminate infringements. From an EU perspective, a patchwork of different national rules on enforcement against abusive conduct in the digital economy.

By Silke Heinz¹

I. INTRODUCTION

Self-preferencing is a prominent topic in the area of abuse of dominance in the digital economy. It typically means a (vertically integrated) dominant platform giving its own products and services preferential treatment over those of its rivals on the platform. The European Commission first applied this theory of harm in Google Search, finding that Google positioned and display