Big Tech strategies across markets: the role of self-preferencing in Digital Antitrust

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The ongoing debate about antitrust law and digital economy has led antitrust authorities, commentators and scholars of all around the world to ask themselves the same questions, namely should the objectives, rules and tools of antitrust law be modified to deal with digital economy? The present work makes no exemption, and that question drove the research activity that led to this thesis. In particular, after reaffirming the centrality of consumer welfare for antitrust law and analysis, the present thesis analyses if, and at what conditions, self-preferencing as a new theory of harm could represent a new tool at the disposal of antitrust enforcers to effectively tackle the specific features of competitive dynamics in digital markets. With this aim, the thesis first provides an overview of some of the main features which characterize digital markets, including zero marginal costs, network and lock-in effects, market concentration and tipping as well as of the entities operating on such markets, i.e. multi-sided platforms, often identified also as ecosystems or conglomerates, and even gatekeepers, whose peculiar business model is that of “network orchestrators”. All such features outline fluid and interdependent markets whose boundaries are subject to drastic changes, and competitive dynamics often taking place across markets, in a constant “race” towards new products and services. They also allow to identify envelopment – i.e. the strategy whereby a dominant platform (the enveloper) operating in a multi-sided market (the origin market) enters a second multi-sided market (the target market) by leveraging shared user relationships, common components and data it disposes – as a key factor of competition in digital markets. Dominant digital firms have incentives to extend their dominant position in other markets, often leveraging on the dominant position they already hold in their core market. It is through such strategy – which can either take the form of bundling or self-preferencing – that dominant firms are able to negatively affect competition on the target market given their unique position to curve the origin platform’s rules to provide a better outcome for its own products or services. Il light of these premises, the work argues that specific attention should be paid to those concepts and categories in the antitrust analysis that by their very nature are designed to “capture” leveraging strategies between (or across) two or more markets. In particular, as self-preferencing (other than being one of the forms in which envelopment can take place) has emerged as a potential new theory of harm and form of abuse of a dominant position on digital markets following the Commission’s decision on the Google Shopping case, the thesis provides an in-depth analysis of the facts of the case, the approach taken by the Commission and of the many scholarly criticisms and comments directed through that decision, as well as self-preferencing as a legal category of abuse. Building on such analysis, an attempt is made to provide a narrow definition of self-preferencing and to better articulate on the legal test that such type of conducts is subject to, while stressing the reasons why the detachment from the case law on refusal to deal (and mainly the indispensability requirement) should not be regarded as problematic. Those theoretical considerations are then tested though the analysis of two ongoing cases before the Italian Competition Authority, respectively, against Amazon and Google. The thesis concludes that self-preferencing represents a new tool which allows to “adjust” traditional rules and concepts of antitrust law and analysis so as to affectively address the new dynamics posed by the digital economy and the anticompetitive effects stemming from envelopment strategies, while strongly relying on established competition rules and principles.