The General Court’s Google Shopping Judgment : Finetuning the Legal Qualifications and Tests for Platform Abuse

Legal qualifications and corresponding legal tests are determinative for the outcome of antitrust cases; they should thus be chosen and designed carefully. In its Google Shopping decision, the Commission was at best ambiguous as to the legal qualification of Google’s conduct, oscillating between leveraging and favouring. The General Court resolved this ambiguity by choosing favouring over leveraging; it then went a step further by reframing the abuse as discrimination. The Court also put forward several ‘plus factors’, i.e. natural monopoly, quasi–essential facility, closure of open infrastructure, legislative choice for non-discrimination. This article decision–theoretically evaluates the choice for discrimination over leveraging and favouring, finding it sensible. It also examines the legal test, and in particular the 'plus factors' advanced by the General Court. While some of those factors can play a useful role in the assessment of discriminatory platform conduct, at least after some specification, others need to be rejected