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

1 European Competition and Regulatory Law Review (CoRe) Issue 3/2017, pp. 208-221

19 Pages Posted: 22 Sep 2017

See all articles by Thomas Hoppner

Thomas Hoppner

Technical University Wildau; Hausfeld RA LLP

Date Written: September 21, 2017

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

Suggested Citation

Höppner, Thomas, Duty to Treat Downstream Rivals Equally: (Merely) a Natural Remedy to Google's Monopoly Leveraging Abuse (September 21, 2017). 1 European Competition and Regulatory Law Review (CoRe) Issue 3/2017, pp. 208-221. Available at SSRN: https://ssrn.com/abstract=3040605

Thomas Höppner (Contact Author)

Technical University Wildau ( email )

Hochschulring 1
Wildau, 15745
Germany

Hausfeld RA LLP ( email )

Kurfürstendamm 218
Berlin, 10719
Germany

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