Article 102 TFEU, Equal Treatment and Discrimination after Google Shopping

Extract

I. Introduction

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.¹ 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.² Contrary to views in the literature,³ the Bronner⁴ criteria, particularly indispensability, are not part of this legal test.⁵

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 Courts⁶ have predominantly relied on Article 102(c) TFEU to address all kinds of abusive discriminations beyond the provisions wording and purpose 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.