Theories of Self-Preferencing Under Article 102 TFEU: A Reply to Bo Vesterdorf

18 Pages Posted: 10 Apr 2015 Last revised: 14 Jul 2015

Nicolas Petit

University of Liege - School of Law; Hoover Institution; University of South Australia - School of Law

Date Written: April 29, 2015

Abstract

In a 2015 paper, Bo Vesterdorf argues that there is no legal basis for the decisional implementation of theories of abusive self-preferencing under Article 102 TFEU. His paper comes in the context of the headline-grabbing Google search investigation in the EU. In Vesterdorf's view, the sole legal avenue that may be used to order a dominant firm "not to favour" its own services is the essential facilities doctrine. Vesterdorf goes on to make a very restrictive description of the scope and conditions of application of the essential facilities doctrine in EU competition law.

This paper is a reply to Bo Vesterdorf's paper. It shows that the Vesterdorf paper does not withstand a comprehensive positive law analyzis. The case-law provides several legal basis for the promotion of theories of abusive self-preferencing under Article 102 TFEU. Moreover, in positive EU competition law, the essential facilities doctrine is not the narrow theory of liability described in Vesterdorf's paper. Finally, the concept of "competition on the merits" is of limited help to redeem a dominant firm's abusive conduct.

Keywords: antitrust, competition, abuse of dominance, essential facilities, discrimination, search advertising, search engines, competition on the merits

JEL Classification: K00, K20, K21, K40, K42, L40, L41

Suggested Citation

Petit, Nicolas, Theories of Self-Preferencing Under Article 102 TFEU: A Reply to Bo Vesterdorf (April 29, 2015). Available at SSRN: https://ssrn.com/abstract=2592253 or http://dx.doi.org/10.2139/ssrn.2592253

Nicolas Petit (Contact Author)

University of Liege - School of Law ( email )

B-4000 Liege
Belgium

Hoover Institution ( email )

Stanford, CA 94305
United States

University of South Australia - School of Law ( email )

GPO Box 2471
Adelaide SA 5001
Australia

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