CEU Electronic Theses and Dissertations, 2022
| Author | Shah, Syed Zulkifil Haider |
|---|---|
| Title | Advertisers as Frenemies? Or how Google Shopping (2021) demonstrates the limits of Article 102 TFEU???s theory of harm for search engine market |
| Summary | This thesis is an in-depth study of Google Shopping (2021) and explores how the case tests the limits of EU Competition Law’s ability to respond to novel business practices that arise in the fast-moving, multi-sided digital markets (in this case, the search engine markets). In Google Shopping (2021), Google came under fire for according a more favorable treatment to its own Comparison Shopping Services (CSS) as compared to rival CSS in its online search services. A Comparison Shopping Service is a web-platform that gathers and compares product offers from online sellers, and displays them to users, along with directing such users to the online seller’s website to conduct purchases. In its general search engine results, Google was flagged for displaying results from its own CSS on top ranking and prominent spots as compared to those of its rivals. Such self-preferencing behavior in Google Shopping (2021) was held by the court to amount to an abuse (of Google’s dominant position) under EU Competition law. While Google claims self-preferencing is a normal business practice that allows it to monetize its general search services, such justification, arguably, sits awkwardly against the issues of fair and free competition, and consumer choice—since allegedly users' online shopping behavior is nudged by Google. For the enforcement of EU Competition law, the central questions concern: what parties (consumers or competitors) are being harmed by such conduct, and how are they being harmed. Such questions inform the theory of harm that underlies the classification of business conduct as abusive. The thesis investigates this very dialectic of whether self-preferencing is—and should be declared—abusive. The thesis conducts doctrinal legal research and engages in a close textual reading of the court’s reasoning in Google Shopping (2021) along with an analysis of EU Competition case law to delineate the often-murky boundaries of the ‘abuse’ of dominant position. The thesis combines legal material from EU Competition law with the more recent literature from Platform Economics and Industrial Organization to cast a fresh, multi-disciplinary perspective on the issue of abuse of dominance. The thesis argues that the EU Competition Law has taken a wrong turn in Google Shopping (2021) by declaring self-preferencing conduct to abusive in search-engine market. The court’s failure is twofold: firstly, as a matter of legal reasoning, the court’s decision is unprincipled and internally inconsistent (incoherent) with the EU Competition law jurisprudence. Secondly, such incoherence extends the theory of harm (and hence the regulatory boundaries of EU Competition Law) too wide, and as a result, it renders EU Competition Law counterproductive in digital markets. |
| Supervisor | Schmidt-Kessen, Maria José |
| Department | Legal Studies LLM |
| Full text | https://www.etd.ceu.edu/2022/shah_syed-zulkifil.pdf |
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