Self-Preferencing in Online Search Under Article 6(5) DMA
| Autor principal: | |
|---|---|
| Formato: | Libro electrónico |
| Idioma: | Inglés |
| Publicado: |
Baden-Baden :
Nomos Verlagsgesellschaft
2024.
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| Edición: | 1st ed |
| Ver en Biblioteca Universitat Ramon Llull: | https://discovery.url.edu/permalink/34CSUC_URL/1im36ta/alma991009836130406719 |
Tabla de Contenidos:
- Cover
- A. Executive summary
- I. Principles for identifying a distinct First-Party Service that shall not be favoured
- II. Principles for identifying a Third-Party Service that shall not be disadvantaged
- III. Principles for excluding a more favourable treatment of the First-Party Service
- B. Legal, technical, and economic background
- I. Article 6(5) DMA in a nutshell
- 1. Equal treatment: The DMA's central obligation
- 2. Objectives: contestability and fairness
- a. Addressing gatekeeper's conflicts of interest
- b. Addressing platform envelopment strategies
- c. Covering any form of self-preferencing in online search
- 3. Gatekeeper's choice: (i) disintegrate own service, or (ii) integrate third parties equally without conferring an advantage upon the gatekeeper
- 4. The relevant criteria for compliance
- II. Identifying a distinct First-Party Service
- 1. Legal framework for the delineation of digital services
- a. Annex D(2): integrated services with different purposes or falling within different categories of CPS are always distinct
- b. Application to Article 6(5) DMA
- aa) Consequences for designated CPS
- bb) Application to other gatekeeper services
- 2. Definition of an OSE
- a. Irrelevance of the current design of search engines
- b. Definition in the DMA
- c. Qualification in the case law of the Court of Justice
- 3. Identifying a distinct service
- a. Objective: the DMA's aim to effectively curb platform envelopment strategies
- aa) The economic concept of platform envelopment
- bb) Platform envelopment pursuant to the DMA
- cc) Legal consequence: 'Distinct services' despite common components
- b. Services found to be distinct from an OSE
- 4. Delineation of OSEs from particular other services
- a. OSE vs non-search related services
- b. OSE vs search-related content.
- c. OSE vs (generative AI) answering services
- d. OSE vs OISs
- aa) OSE and OIS cannot form a single service
- bb) Differences between an OSE and an OIS
- (1) Definition of an OIS
- (2) Navigating the web vs facilitating transactions
- i. End users' perspective
- ii. Business users' perspective
- iii. Relevant factors
- (3) Crawling of websites vs direct contracts with business users
- cc) The example of Alphabet: on Google's shift to integrating specialised search and intermediation services
- (1) Google Search became market leader by limiting itself to an OSE
- (2) Limits of Google's OSE in facilitating transactions
- (3) Google's specialised search technology to facilitate transactions
- dd) Google's OISs as distinct services - findings in Google Search (Shopping)
- e. OSE vs non-OIS specialised search services
- f. Borderline between OSE and OIS/verticals in case of overlapping elements
- 5. In particular: standalone, partly, and entirely embedded OIS/Vertical
- a. The concept of embedding as developed in Google Search (Shopping)
- b. Concept of embedding in Article 6(5) DMA
- c. Economic background: use of different access points for the same service
- aa) Relevance of access points to use a service
- bb) Different access points to use Google Search
- cc) Different access points to use Alphabet's OIS/Verticals
- dd) Conclusion: specialised results in OSE serve as access point to OIS/Vertical
- d. Clarification in the Commission's designation decision
- III. Identifying a similar Third-Party Service
- 1. Similar service
- 2. Service of a third party
- 3. Protection of each third party providing a similar service
- IV. Identifying a more favourable treatment
- 1. Background
- a. 15 years of Google Search (Shopping) proceeding clarified the abuse
- b. Competition law remedies failed.
- c. Growing calls for structural remedies
- d. DMA's ban on self-preferencing as political compromise
- 2. Relevant treatment of services
- a. Differentiated treatment as relevant conduct
- b. Ranking
- aa) Definition: relative prominence
- bb) In 'search results'
- (1) Any information returned, including a service directly offered
- (2) In response to, and related to a search query
- (3) Including real-time interface adjustments
- cc) Results in any interface of any access point of the OSE
- c. Crawling and indexing
- d. Other treatments having an equivalent effect
- 3. More favourable treatment of First-Party Service
- a. Equal treatment vs no self-preferencing
- b. Conferral of advantage upon First-Party Service
- aa) Examples mentioned in recital (51) DMA
- (1) Better ranking of results leading to a service
- (2) Partial embedding of a service
- (3) Entire embedding of a service
- bb) Difference partial / entire embedding
- cc) Consequence: favouring does not require a service with a separate access point
- (1) Groups of results specialised in a certain topic
- (2) Considered or used by certain end users as a distinct service
- dd) Further examples of relevant advantages
- c. No equivalent for similar Third-Party Service
- aa) General framework
- bb) Equivalence of opportunity
- (1) Relevant opportunities relating to search prominence
- (2) Equivalence of prominence
- cc) No circumvention of ban on self-preferencing
- (1) Article 13(6) DMA
- (2) Dark patterns
- (3) Degradation of conditions or quality of the OSE
- dd) No remaining imbalance of rights and obligations
- (1) Article 6(5) sentence 2 DMA: "fairness" of "such ranking"
- (2) Inability to fully capture benefits of own innovation and efforts
- (3) Inability to compete for the full service
- (4) Inability of all similar third parties to compete.
- (5) Improper conditions for third parties
- (6) Improper pricing
- ee) No conferral of a disproportionate advantage upon the gatekeeper
- (1) Conferral of advantage upon OSE or other CPS
- (2) Relevant advantages
- (3) Disproportionality of the advantage conferred
- d. No discrimination of dissimilar services with similar websites, including of direct suppliers
- aa) Ranking concerns of dissimilar third parties
- bb) Technical framework: OSE's function to rank diverse websites, not business models
- (1) OSEs' side-by-side display of complementary services
- (2) Neutrality as competitive factor for OSEs
- cc) Economic framework: advantages for direct suppliers of a ban on self-preferencing
- (1) Harms of self-preferencing for direct suppliers
- (2) (No) disadvantages for direct suppliers from competition amongst indirect suppliers
- (3) Gatekeeper's incentives to turn direct suppliers against rival indirect suppliers
- dd) Legal framework
- (1) Article 6(5) sentence 1 and sentence 2 DMA: relation for "non-discrimination"
- (2) Article 6(12) DMA and its relationship to Article 6(5) DMA
- (3) Subjective rights of dissimilar third parties
- ee) Consequences for compliance
- 4. Technical constraints, efficiency justifications and burden of compliance
- a. Framework: DMA compliance by design
- b. Gatekeeper needs to bear the costs of compliance with Article 6(5) DMA
- c. Constraints to achieve equal opportunities justify no self-preferencing
- d. Objective justification arguments raised in Google Search (Shopping)
- aa) Google's arguments regarding technical constraints
- bb) Rejection of objective justification by Commission and General Court
- d) No objective justification criterion in Article 6(5) DMA
- V. Consequences where no fair equivalent can be found
- C. Resulting principles for compliance with Article 6(5) DMA.
- I. Safe harbour
- II. Individual assessment
- 1. Identifying a distinct service of a gatekeeper that shall not be favoured
- 2. Identifying a similar Third-Party Service that shall not be disadvantaged
- 3. Principles for excluding a more favourable treatment of the First-Party Service
- List of references
- Index.
