The European Commission had previously imposed a record fine of 2. The so-called self-preferencing by large digital platforms is currently the focus of antitrust authorities, antitrust law scholars and legislation and will continue to be one of the defining topics in the field of competition and antitrust law in the coming years.
It involves a company exploiting its prominent position in a market usually a platform market to gain advantages over his competitors in a related downstream market. At the same time, price comparison services from other providers such as Yelp, Idealo. We know from statistics, that users very often click on the first search results and only a very small number of clicks are made on search results on the second page and thereafter.
However, it has not yet been scientifically clarified whether this is the use of a non-performance-related means or merely the exploitation of an advantageous position gained through competition on the merits. At the same time, developments at regulatory level have come thick and fast.
The German legislator reacted with the introduction of the new Section 19a 2 sentence 1 no. In the meantime, similar legislative measures can also be found in the US Sec. With this decision, the ECJ addresses the intriguing question of whether or not self-preferencing in this or similar cases constitutes behaviour by a dominant company that is based on competition on the merits and is therefore compliant under antitrust law. The decisive factor is the effects of the conduct, i.
In this context, it is open to question whether such cases do involve a refusal to grant access to an essential facility, for which the criteria set out in the Bronner case must be taken into account when examining the compliance with antitrust law. The question of the application of the Bronner criteria in this case was particularly very controversial in literature and practice. Google therefore argues that these boxes, which can be distinguished from the generic search results in terms of graphics and content, are considered as a separate infrastructure to which the price comparison services of other providers have not had access yet, but which were essential for their business model.
