Used Services and Cookies

Our website uses cookies to enhance your user experience. Some cookies are essential for the operation and management of the site, while others are used for anonymous statistics or personalized content. Please note that limiting cookie use may impair certain functions of the website.

More information: Imprint, Data protection

Essential cookies help make a website usable by enabling basic functions like page navigation and access to secure areas of the website or, for example, saving your cookie settings. The website cannot function properly without these cookies. This category cannot be deactivated.
  • Name:
    ukie_a_cookie_consent_manager
  • Domain:
    blomstein.com
  • Purpose:
    Stores the cookie preferences of website visitors.
  • Name:
    blomstein_session
  • Domain:
    blomstein.com
  • Purpose:
    The session cookie is essential for the basic functioning of the website. It allows users to navigate through the site and use its basic features.
  • Name:
    XSRF-TOKEN
  • Domain:
    blomstein.com
  • Purpose:
    This cookie serves security purposes and aids in preventing Cross-Site Request Forgery (CSRF) attacks. It is a technical necessity.
These cookies collect information about how you use a website, e.g. which pages you have visited and which links you have clicked on.
  • Name:
    _ga
  • Domain:
    blomstein.com
  • Purpose:
    The Google Analytics cookie _ga is used to distinguish users by assigning a unique identification number to each visitor. This number is sent to Google Analytics each time a page is accessed in order to collect user, session and campaign data and to statistically evaluate the use of the website. The cookie helps website operators to understand how visitors interact with the website by collecting information anonymously and generating reports.
  • Name:
    _ga_*
  • Domain:
    blomstein.com
  • Purpose:
    The _ga_[container_id] cookie, specific to Google Analytics 4 (GA4), is used to distinguish website visitors by assigning a unique ID for each session and each user. It enables the collection and analysis of data on user behavior on the website in anonymized form. This includes tracking page views, interactions and the path users take on the website to give website operators deeper insights into the use of their site and improve the user experience.
  • Name:
    _gid
  • Domain:
    blomstein.com
  • Purpose:
    The _gid cookie is a cookie set by Google Analytics that is used to distinguish users. It assigns a unique identification number to each visitor to the website, which is sent to Google Analytics each time the page is accessed. This makes it possible to track and analyze user behavior on the website over a period of 24 hours.
  • Name:
    _gat_gtag_UA_77241503_1
  • Domain:
    blomstein.com
  • Purpose:
    The _gat_gtag_UA_77241503_1 cookie is part of Google Analytics and Google Tag Manager and is used to throttle the request rate, i.e. it limits data collection on high traffic websites. This cookie is linked to a specific Google Analytics property ID (in this case UA-77241503-1), which means that it is used for performance monitoring and control of data collection for that specific website property.

Self-preferencing under the DMA

07.01.2023

After the Digital Markets Act (DMA) entered into force in November 2022, the European Commission is now hosting a series of workshops to consult stakeholders on specific questions regarding the DMA’s implementation. The first workshop dealt with the prohibition on self-preferencing in Article 6(5) DMA and focused on the interpretation of the provision as well as possible solutions to ensure compliance with it in practice.

What is self-preferencing?

The prohibition of self-preferencing in the DMA addresses practices whereby gatekeepers favour their own products and services in rankings, crawling and indexing. Gatekeepers are (often vertically integrated) companies that offer goods or services through their own core platform services (CPS) in competition with other service providers on the platform. Due to the captive use of their own platform, there is an inherent risk that gatekeepers rank their own services better than those offered by competitors. According to Article 6(5) DMA, “the gatekeeper shall not treat more favourably, in ranking and related indexing and crawling, services and products offered by the gatekeeper itself than similar services or products of a third party. The gatekeeper shall apply transparent, fair and non-discriminatory conditions to such ranking.”

Ranking describes the relevance given to search results (see Article 2(22) DMA). Crawling is a process through which new and updated content is found, and indexing means the storing and organising of the content found through the crawling process (Recital 51 DMA).

What’s in the scope of the self-preferencing prohibition?

Rankings are inherently discriminatory as they, by their very nature, favour the goods and services ranked highest. Hence, the prohibition on self-preferencing cannot be understood to govern the ranking outcome, but rather the process, which must be transparent, fair and non-discriminatory.

To assess whether certain conduct qualifies as self-preferencing within the sense of Article 6(5) DMA, a three-step-test has been suggested:

  • What is the relevant ranking on the core platform?

  • Is there a separate service provided by the gatekeeper on the platform?

  • Is there unfair preferencing of the separate service in comparison to similar products or services of third parties?

Self-preferencing can be blunt and easy to assess. However, it may also come in disguise and may not be so easy to detect. According to Recital 52 of the DMA, to ensure effectiveness and avoid circumvention of the prohibition, measures of equivalent effect also fall within its scope. While effects-based analyses are common in competition law, it will require case practice and guidance to establish what actions potentially constitute “measures with equivalent effect” and how broad this notion is to be interpreted.

In the Commission’s workshop, the question was raised whether Article 6(5) DMA applies if not the gatekeeper’s own services, but services of third parties are treated preferentially. Recital 52 of the DMA provides a reference point in this respect, stating that the gatekeeper should not engage in differentiated or preferential treatment in favour of products or services it offers itself or through a business user which it controls. Therefore, it appears not to be critical if the gatekeeper gives preferential treatment to any third party; instead, only if it controls that third party, such conduct is in scope of the prohibition.

What can a compliant ranking, crawling or indexing process look like?

The workshop also focused on proposals on how companies can comply with the self-preferencing prohibition. A number of different ideas were discussed, which all focused mainly on Google’s search engine and Google’s treatment of its own verticals as opposed to third party services. A number of designs and criteria for compliant ranking processes were brought forward, most of them proposing industry-specific solutions. It became very clear that there is no one-size-fits-all solution. Instead, it will need a case-by-case analysis of how a compliant solution can look like taking into account the specific circumstances at hand.

Outlook

The DMA will apply as of May 2023. Companies providing CPS are obliged to notify the Commission that they meet the criteria for gatekeepers provided for in the DMA and provide all relevant information. Within two months from notification, the Commission will adopt a decision designating a specific company a gatekeeper. After such designation decision, gatekeepers will have a maximum of six months to ensure compliance with the obligations set out in the DMA.

The Commission has published a draft implementing regulation regarding procedural aspects of the notification and gatekeeper designation process. However, guidance on how to comply with the substantive rules of the DMA can only draw on the general principles set out in the DMA as well as Commission practice and case law underlying and inspiring the substantive DMA provisions. Significant experience in dealing with behavioural and dominance cases, both from the perspective of a dominant firm and that of a complainant as well as being familiar with the rules on digital competition law is key.

BLOMSTEIN will continue to monitor and assess the developments and practical application of the DMA provisions. If you have any questions on the topic, Max Klasse, Anna Huttenlauch, Philipp Trube, Marie-Luise Heuer and BLOMSTEIN’s entire competition law team will be happy to assist you.

back to overview