Institutionalizing Google : When Self-Preferencing Becomes Anticompetitive

Unilateral measures taken by private actors operating in the free market are crucial for the actors conducting their business but also for efficient competition in the market, especially if one wishes to compete successfully, and one such strategic business move is preferencing one’s own goods and services. However, it appears that this particular strategic business move can no longer be tolerated or at least not to all market actors. This is the conclusion that presents itself after reading the European Commission’s Decision and the General Court’s Judgement in the case of Google Shopping. Such a conclusion is to a certain degree understandable and justifiable if the unprecedented dominance Google has on the European market is considered. However, only if the imposition of this equal treatment obligation on non-state actors is sufficiently elaborated as to why and when private market actors become responsible for the undisturbed functioning of the free market and only if it is ensured that adequate safeguards for protecting efficient competition exist, can such an obligation be imposed. This paper argues that these necessary standards for protecting free market competition and safeguarding legal certainty were not met in the mentioned Decision or Judgement and that both documents introduced novel legal concepts which were severely under elaborated and, as such, do not provide satisfactory guidance for their future implementation