Table of Contents: Self-Preferencing in Online Search :

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

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Bibliographic Details
:	Höppner, Thomas.
Place / Publishing House:	Baden-Baden : : Nomos Verlagsgesellschaft,, 2024. ©2024.
Year of Publication:	2024
Edition:	1st ed.
Language:	English
Physical Description:	1 online resource (217 pages)
Tags:	Add Tag No Tags, Be the first to tag this record!

Table of 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.

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

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