Self-preferencing shouldn't be an antitrust offense

Antitrust Unchained: The EU’s Case Against Self-Preferencing. Giuseppe Colangelo. International Center for Law and Economics Working Paper No. 2022-09-22, Sep 22 2022. https://laweconcenter.org/resource/antitrust-unchained-the-eus-case-against-self-preferencing

Abstract: Whether self-preferencing is inherently anticompetitive has emerged as perhaps the core question in competition policy for digital markets. Large online platforms who act as gatekeepers of their ecosystems and engage in dual-mode intermediation have been accused of taking advantage of these hybrid business model to grant preferential treatment to their own products and services. In Europe, courts and competition authorities have advanced new antitrust theories of harm that target such practices, as have various legislative initiatives around the world. In the aftermath of the European General Court’s decision in Google Shopping, however, it is important to weigh the risk that labeling self-preferencing as per se anticompetitive may merely allow antitrust enforcers to bypass the legal standards and evidentiary burdens typically required to prove anticompetitive behavior. This paper investigates whether and to what extent self-preferencing should be considered a new standalone offense under European competition law.