The Scope of the ‘Special Responsibility’ upon Vertically Integrated Dominant Firms after the Google Shopping Case: Is There a Duty to Treat Rivals Equally and Refrain from Favouring Own Rel

Abstract

The Google Shopping case has brought into discussion the existence of a general duty upon vertically integrated dominant firms not to discriminate competitors in neighbouring markets and to treat them in the same way as own related business. Such general duty is nonsensical from an economic perspective and finds no support in the case law. A case-by-case analysis should therefore be applied. The case law has established that pure discrimination of competitors by a vertically integrated undertaking could amount to a discriminatory abuse of Article 102(c) TFEU instead of an exclusionary abuse of Article 102(b) TFEU. This seems to be the position taken by the Commission in the Google Shopping case. Exclusionary abuse framework, including refusal to deal principles, are not applicable to cases of ‘self-preferencing’. Exclusion of competitors is not the only plausible theory of harm, which does not imply lowering the legal standard to find an anticompetitive infringement. Although there is not a duty of equal treatment as a rule of thumb, there are strong reasons to suspect that the Commission pretends to establish the principle of ‘search neutrality’ in online services.