Following Google Shopping, competition authorities in Europe – supported by a flurry of reports on digital competition – have wasted little time establishing self-preferencing in competition law’s lexicon. But while self-preferencing looks here to stay, there is little clarity over the legal test which applies and how self-preferencing fits within the established canon of “leveraging” abuses. This article considers where self-preferencing should fit in light of “prior beliefs” as to its likely efficiencies and potential for competitive harm. It further considers how arbitrage of different legal standards by regulators (reverse regulatory arbitrage) can be avoided. These are critical questions as regulators and courts weigh up how to address the alleged harm from self-preferencing without undermining the dynamic efficiency of digital markets.

By Christian Ahlborn, Will Leslie, & Eoin OReilly1

 

I. INTRODUCTION

Since the first Statement of Objections on Google Shopping was announced, competition practitioners, commentators and academics have grappled with the concept of “self-preferencing.”2 What harm is it intended to address? What is the correct legal test? And how does it fit into the established canon of abuses under Article 102 TFEU?

Much ink has been split on whether “self-preferencing” is even an abuse or, as some have suggested, merely an inventive way of circumventing the (high) legal standard for “refusal to supply.”3 Others

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