Is it unlawful to favour oneself?

Abstract

The leveraging of market power by digital ecosystems and self-preferencing have become fashionable topics nowadays at national, European, and international levels. However, they are not novel issues. This paper argues that we can find the underlying concepts in a number of practices previously identified as abusive, such as tying and bundling, margin squeeze, and refusal to deal. This paper points out that these abuses have certain similarities with self-preferencing. This supports the claim that self-preferencing is likely to be conceivable under EU competition law as a new abuse. The investigations launched by the Commission after the adoption of the Google Shopping decision – such as against Amazon and Apple, the Amazon case of the Italian Competition Authority, as well as the various expert reports, and the legislative proposals that have been put forward in this regard also point in this direction. However, many questions remain when it comes to the legal standards that are applicable to the assessment of whether self-preferencing is abusive in a given situation.