"Search bias as an abuse of dominance" [2020] ELECD 333; in Maihaniemi, Beata (ed), "Competition Law and Big Data" (Edward Elgar Publishing, 2020) 213

Book Title: Competition Law and Big Data

Editor(s): Mäihäniemi, Beata

Publisher: Edward Elgar Publishing

Section: Chapter 11

Section Title: Search bias as an abuse of dominance

Number of pages: 37

Abstract/Description:

This chapter evaluates the anticompetitive behaviour of search bias and whether it can indeed be qualified as abusive. In particular, the chapter evaluates how the behaviour can be classified as a discrimination on the basis of Article 102(c) TFEU or leveraging market power to adjacent markets. The chapter criticises the Commission’s approach to search bias and problems with the theory of harm as well as offering the criteria that might be offered to pre-define whether a behaviour could be classified as a case of exclusionary discrimination, pointing out the need to take into account potential foreclosure and its appreciable effect on the adjacent market, as well as the harm to innovation that would be connected to consumer harm. The chapter highlights that the essential facilities doctrine did not fit as a theory of harm in this particular case. This is mostly because, although the most plausible version of an indispensable input is a certain quality of search, it is unclear whether this is indeed indispensable. Consequently, one cannot claim that any essential facility can be, in fact, identified.