In Google Shopping, the General Court took a giant leap forward. Remarkably, it held that the general principle of equal treatment, as a general principle of EU law, applies in the context of Article 102 TFEU for dominant undertakings. Based on this finding, it reframed the European Commission decision as an abusive discrimination case, with self-preferencing amounting to an independent form of abuse under Article 102 TFEU. According to the General Court, the legal test requires exclusionary effects, which must be considered in light of the individual circumstances of each case. Contrary to views in the literature, the Bronner criteria, particularly indispensability, are not part of this legal test. This paper, first, introduces the past practice of abusive discrimination law and its roadmap towards Google Shopping. It concludes that the prior EU abusive discrimination law practice lacked a clear and consistent approach. In the past, the Commission and the European Courts have predominantly relied on Article 102c TFEU to address all kinds of abusive discriminations beyond the wording and purpose of the provision in an unsystematic manner. The general principle of equal treatment was at best hinted at in case law. Furthermore, a distinct theory of harm for independent discriminatory abuses did not exist. On the contrary, the development concerning the effects-based approach and the refusal to apply the Bronner criteria had already begun to emerge in comparable scenarios.Second, this paper critically analyses the soundness of the Court’s argumentation in Google Shopping concerning equal treatment and non-discrimination and maps out a consistent framework for the concept of abusive discrimination. It shows that when it comes to the explicit mentioning of equal treatment, the judgment in Google Shopping is unprecedented. In addition, the fact that discrimination can constitute an independent form of abuse has been hinted at in TeliaSonera but not been stated in case law in such clarity before. Furthermore, the paper concludes that the big leap also consists in the fact that the Court develops a theory of harm for independent discrimination cases. This is in line with past developments in MEO or Post Danmark I, according to which simple discrimination is not sufficient to find an abuse. The legal test for such self-preferencing – exclusionary effects, no indispensability – does not come as a surprise and puts different pieces of past case law together. The European Courts have developed the overall abuse of dominance test to an effects-based approach throughout the years. MEO has already shown this explicitly for exploitative discriminations under Article 102c TFEU. Taking into account the developments from TeliaSonera and Slovak Telekom, which both included discriminatory elements themselves and led to comparable exclusionary effects, hardly any other outcome for Google Shopping could have been expected. Yet, the clarifications regarding the principles are much welcomed, even though, as we will see, the Court’s reasoning concerning the Bronner criteria, is not always spot on.Third, it assesses future applications of the Court’s test and the role of the principle of equal treatment in light of the historical purpose, changing goals and developing reality of Article 102 TFEU. It concludes that relying on the general principle of equal treatment in the context of Article 102 TFEU opens the door for a proper non-discrimination theory of harm. A historical perspective shows that abusive discrimination was always supposed to play a much more significant role in the EU competition law framework. In today’s context, for dominant digital platforms, who often unequally face their counterparties, a non-discrimination theory of harm can at least maintain a gap-filling function alongside possible specific rules of the proposed Digital Markets Act (DMA)
