The Bottom Line
- Increased Compliance Risk: The Advocate General’s opinion suggests that dominant digital platforms using their own services within their ecosystem could face heightened antitrust scrutiny, even without explicit anticompetitive intent.
- Potential for Service Redesign: Companies may need to re-evaluate how they integrate and present their own products (e.g., payment systems, mapping services, app stores) to ensure they provide equal treatment to third-party competitors on their platforms.
- Precursor to a Binding Ruling: This opinion, while not binding, is a strong indicator of the direction the Court of Justice may take, signaling a more rigid interpretation of abuse of a dominant position under EU competition law.
The Details
The Advocate General’s opinion stems from joined cases referred by national courts that questioned whether a dominant company’s practice of favouring its own ancillary services constitutes an abuse of its market position. The core of the issue was whether such self-preferencing is inherently anticompetitive. The Advocate General argues that for a company with a ‘super-dominant’ position, the special responsibility to maintain undistorted competition is so high that favouring its own services, thereby weakening competitors, is in itself an abuse. This approach moves away from the traditional effects-based analysis, which requires proof of a tangible, negative impact on the market.
In the legal reasoning, the Advocate General drew a clear line between standard business practices and the obligations required of a market-dominating gatekeeper. The opinion states that once a platform becomes an essential gateway to the market, its ability to influence outcomes is so profound that its commercial conduct must be held to a higher standard. The Advocate General argued that allowing a dominant player to leverage its power from one market to another distorts the competitive process from the outset, regardless of any immediate measurable harm. This approach aligns with the preventative principles underpinning recent EU legislation like the Digital Markets Act (DMA).
While this opinion is not the final judgment, it provides a robust legal framework that the judges of the Court of Justice will consider very seriously. Historically, the Court follows the Advocate General’s reasoning in a significant majority of cases. For CEOs and legal counsel, this is a clear signal to proactively review internal policies and platform architectures. The era of passively benefiting from integrated ecosystems is likely coming to an end, with a new focus on demonstrating proactive, fair, and non-discriminatory treatment of all players operating on a dominant platform.
Source
Court of Justice of the European Union
