Effective Regulation, Legal Certainty and the Conundrum of Online Platform Self Preferencing

Abstract

The article deals with the phenomenon of online platform "self-preferencing" - a situation when an online platform provides more favourable conditions for its own activities on the platform related to the offering of goods or services in comparison with its competitors present on the platform. This phenomenon is described from the viewpoint of competition law and the new regulation dealing with online intermediation services and internet search engines. The latter regulation specifically aiming at online platforms does not allow for many substantive conclusions on the topic. The recent competition law case law also does not give many clear hints how to treat self-preferencing activities of online platforms, which can be viewed as problematic at least. In absence of clear sector-specific regulation dealing with substance, it will remain the task of competition authorities to set more complicated remedies ordering concrete action of the undertaking instead of a simple prohibition. The author of this article believes that competition law does not necessarily have to be the best suited tool used to resolve some of the more general questions concerning online platform self-preferencing. Instead, a case for substantive sector-specific regulation is made.

Keywords: Competiton law, digital economy, online platform, self-preferencing, sector-specific regulation