Unequal Treatment by Online Platforms: A Structured Approach to the Abuse Test in Google

Abstract

This paper discusses the requirement for legal certainty in the enforcement of the abuse of dominance prohibition in the Treaty on the Functioning of the European Union (TFEU) and the approach that should be taken, under the current legal framework, to the assessment of the alleged conduct by Google consisting in displaying links to specialised results from its own comparison shopping services differently to links to competing vertical comparison shopping services. The author challenges the view that concepts such as "competition on the merits" or "special responsibility" can be a sufficiently certain legal basis for imposing liability on dominant undertakings. The idea of "unequal treatment" or "discrimination" is also inapt to the analysis of the alleged anti-competitive strategy. Having examined the tests that, under Article 102, could apply to the alleged conduct, the paper concludes that the refusal to supply test appears to provide the closest analogy for its assessment under Article 102 TFEU.

Keywords: Abuse of dominance, legal certainty, test, refusal to supply, Google investigation, European Union