Self-Preferencing in Online Search : Under Article 6(5) DMA.

Format:

Book

Author/Creator:

Höppner, Thomas.

Language:

English

Physical Description:

1 online resource (217 pages)

Edition:

1st ed.

Place of Publication:

Baden-Baden : Nomos Verlagsgesellschaft, 2024.

Contents:

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.

Notes:

Description based on publisher supplied metadata and other sources.

ISBN:

9783748944942

3748944942

OCLC:

1446140644