Self-Preferencing as a New Theory of Harm: the CJEU's Confirmation in Google Shopping

On 10 September 2024, the Court of Justice of the European Union (CJEU) dismissed Alpha- bet/Google's appeal against the General Court's judgment, largely upholding the European Commission's 2017 Decision finding that Google had abused its dominant position in the market for online general search services.1 This landmark ruling affirms the Commission's theory of harm based on self-preferencing by a dominant digital platform. The case raises important substantive issues about the application of Article 102 of the Treaty on the Func- tioning of the European Union (TFEU) to non-price conduct by dominant firms in digital mar- kets. The key issues are: what constitutes an abuse under Article 102 TFEU regarding the ef- fects that must be demonstrated, how to properly apply the as-efficient competitor test in these cases, and which characteristics qualify as legitimate competition on the merits.