Discrimination and Self-Favoring in the Digital Economy

Abstract

Although there could be a danger of generalizing and simplifying complex economic questions through bold statements, the digital economy is prone to discrimination and self-favoring. Not only do such allegations arguably form the core of EU-antitrust cases as Google Shopping and Amazon, but the new Platform Regulation also mandates a menu of information obligations targeting these economic concerns. Presumably, the thinking is that transparency will curtail such abusive behavior, referring remaining conflicts to policing by other provisions, including Article 102 prohibiting anti-competitive conduct. Unfortunately, case law renders little support for such optimism. The concept of discriminatory abuse is subject to several ambiguities, and the Google Shopping, rich with example of search and ranking biases, was not pursued as such amplifying the ambiguities. The digital economy might be better served with more caution in the ability of competition law to resolve conflicts raised by these economic developments. This is also true because such cases are time consuming and hold potential for non-coordinated regional outcomes when enforced nationally without clear EU precedents and leadership set by EU institutions.

Keywords: article 102, self-favoring, abuse, digital economy, platforms

JEL Classification: K21, L12, L13, L22, L40, L41