Theories of Self-Preferencing Under Article 102 TFEU: A Reply to Bo Vesterdorf

Posted by Social Science Research Network

Theories of Self-Preferencing Under Article 102 TFEU: A Reply to Bo Vesterdorf Nicolas Petit (University of Liege)

Abstract: In a 2015 paper, Bo Vesterdorf argues that there is no legal basis for the decisional implementation of theories of abusive self-preferencing under Article 102 TFEU. His paper comes in the context of the headline-grabbing Google search investigation in the EU. In Vesterdorf’s view, the sole legal avenue that may be used to order a dominant firm “not to favour” its own services is the essential facilities doctrine. Vesterdorf goes on to make a very restrictive description of the scope and conditions of application of the essential facilities doctrine in EU competition law.

This paper is a reply to Bo Vesterdorf’s paper. It shows that the Vesterdorf paper does not withstand a comprehensive positive law analyzis. The case-law provides several legal basis for the promotion of theories of abusive self-preferencing under Article 102 TFEU. Moreover, in positive EU competition law, the essential facilities doctrine is not the narrow theory of liability described in Vesterdorf’s paper. Finally, the concept of “competition on the merits” is of limited help to redeem a dominant firm’s abusive conduct.