Theories of Self-Preferencing and Duty to Deal - Two Sides of the Same Coin?

In the on-going EU Commission investigation into Google with respect to online search, a new non-discrimination theory is being proposed: complainants allege that under Article 102 TFEU, a dominant firm must provide its customers access to competitors’ products or content, and must design its own products or manage its own distribution channel so as to not preference their own operations over those of competitors. If this theory is upheld, it will have unexpected adverse effects on firms in a variety of markets, online and offline. This article shows, however, that such a claim has no support in EU jurisprudence or policy. In EU law, only firms controlling truly indispensable or essential facilities can be required to deal with rivals on any terms, and if dominant firms have no duty to deal with rivals, any ‘favouring’ of their own businesses and differential treatment of their competitors cannot be considered abusive