Duty to Treat Downstream Rivals Equally: (Merely) a Natural Remedy to Google's Monopoly Leveraging Abuse

Abstract

Google has argued that, in its comparison shopping decision, the European Commission created a novel rule that a dominant company may not favour its own services. Such a rule, it is claimed, would only be justified where the company provided an ‘indispensable service’ as defined in the narrow case law on refusals to deal. This argument, however, confuses the identified abuse with the imposed remedy. The Commission imposed the obligation, to treat rival services like its own services, as a remedy. This remedy does not address a corresponding abusive discrimination or refusal to deal, but effectively brings a monopoly leveraging to an end. Google’s self-promotion is abusive only because it also fulfills long-established criteria for an anti-competitive extension of dominance from a primary market to a distinct, but related, secondary market. An ‘indispensable service’ is not required for this type of abuse.

Keywords: Competition Law, Antitrust, Abuse of Dominance, Google, Monopoly Leveraging, Self-Promotion, Self-Preferencing, Discrimination, Refusal to Deal, Termination of Supply, Essential Facilities, Indispensible Facilities, Auctions, Comparison Shopping, Google Search, Remedies

JEL Classification: A, K