Bridging the Gap
Defining Self-Preferencing for India's Digital Competition Bill– Part 2
**Kunaal Hemnani and Khushi Vasu
Why Bronner Failed in Europe: The Open Platform Conundrum
In Google Shopping, the CJEU found Bronner incapable of dealing with digital competition due to several reasons. Firstly, the inherent nature of harm conducted was different as Bronner just targets outright refusal of access for essential facilities in closed infrastructure, whereas Google Shopping involved the distortion of access within Google’s open platform with systematic self-preferencing within the search rankings. Secondly, the Bronner Framework’s demand for a proof of total exclusion is not suited to conduct involving distortion of access. Thirdly, Bronner framework’s ‘no alternative whatsoever’ approach to prove indispensability is highly impractical as in the digital markets, there are alternatives for almost every service (Google – Bing and Amazon – Flipkart). Lastly, Bronner fails to acknowledge how these platforms leverage their dominance in closed systems to distort the balance of the market. All these factors combine to prove that the Bronner framework in its traditional form is incapable of dealing with digital competition issues concerning open platforms.
However, India’s digital competition concerns are different as platforms like Amazon and Flipkart in India don’t operate like open systems but function like closed systems. They control access to important facilities such as Buy Box (prominent section on a product’s detail page where customers can add items to their cart or purchase them directly), ranking algorithm, delivery and logistics services. A reformed Bronner Test, one that is specifically designed for the unique system of distortion of access, could help courts and CCI to distinguish between self-promotion, self-preferencing and conduct which distorts competition.
Why a Reformed Bronner Test fits India
Unlike in the case of Google, Indian e-commerce companies maintain control over specific, critical facilities which are essential for market participation. The e-commerce giants are not just intermediaries but they also control a product’s visibility, discoverability, its sales conversion by tools like BuyBox and in-app search engine rankings. A tailored Bronner–inspired framework specifically designed to assess when conduct in digital markets becomes abusive. The test could have three essentials-
- Conduct eliminates all Competition:
This prong covers such conduct of the platforms that creates insurmountable barriers that prevent competitors from reaching the minimum efficiency scale. For context, in Amazon and Flipkart’s case, the CCI found these e-commerce giants indulging in preferential treatment (giving algorithmic boosts to affiliated sellers such as Cloudtail and WS Retail) which may have resulted in the systematic exclusion of independent sellers. A recalibrated test would mandate clear evidence that competition has been hampered (data which shows that selected sellers have been dominating the BuyBox despite inferior product quality or independent sellers have constantly been kept off the high visibility slots even when they have better prices, ratings and quality.)
- Lacks Objective Justification
This essential evaluates whether self-preferencing conduct is supported by a verifiable, non-discriminatory reason such as business efficiency or consumer welfare and for this essential, reasons such as user experience or algorithmic neutrality are inadequate. Platforms must provide tangible, verifiable evidence to prove that their ranking or Buy Box algorithms are objectively determined by characteristics such as price, delivery time, or customer happiness, without disproportionate influence from vendor association, platform and its vested interests. Moreover, even if some customer advantage is there, the platform must demonstrate that the conduct is a method to get it.
- Indispensability
This essential determines whether access to a certain interface/ feature such as the Buy Box or ranking algorithm, is commercially critical for successful competition in a downstream market, and if no feasible alternative is available. In India, platforms such as Flipkart and Amazon serve as the principal channel for online shopping, customer confidence, and logistics due to their software and data capabilities. Competing with smaller businesses or direct-to-consumer websites which in most cases do not have these advantages. In contrast to the open web indexed by Google, they are proprietary, enclosed environments. For a seller of electronics or apparel, equitable, fair and transparent access to ranking and conversion tools is as essential as shelf space in a leading supermarket.
How a Reformed Bronner Test Could Have Resolved Flipkart/Amazon
If the Bronner Criteria had been implemented in Indian enforcement procedures, the CCI’s examination would have become more decisive and systematic. The emphasis would have shifted from general accusations regarding inequitable behaviour to determining if algorithmic favouritism had explicitly obstructed market access for other unfavoured competitors. Platforms must demonstrate, rather than only claim, that the vendors secured advantageous positions based on objective merit. The indispensability criteria would have been more pragmatic, inquiring not if sellers possessed alternatives, but rather if those options were feasible and effective.
This method also facilitates customized solutions instead of implementing universal prohibitions or structural divisions. Authorities may require algorithmic transparency, equitable access to logistical networks of the e-commerce giants and access to their data-sharing protocols used to rank and preference items to guarantee non-discriminatory practices. This reconciles the safeguarding of competition with the promotion of innovation and operational adaptability.
The authors propose a definition of self-preferencing which is well suited for the Indian Context and takes into consideration cues from the developed EU competition jurisprudence.
Policy recommendation-
The findings of the Reuters report and the Delhi Vyapar case highlight how the evolving nature of digital markets has given rise to relatively new forms of abuse of dominance. This underscores the need for Indian competition law to bridge this gap by incorporating a clear and specific statutory definition. The EU’s DMA particularly Article 6(5) read with Recital 52 adopts a per se prohibition on self-preferencing by gatekeepers which means such conduct is considered inherently anti-competitive, without requiring proof of its actual market effects. The reasoning is that such conduct inherently undermines contestability by exploiting control over platform services to favour one’s own offerings.
In contrast, in India according to the recent Standing Committee on Finance’s report, legislators favour a more conditional, effects-based approach, which aligns well with the previous CCI decisions such as the Schott Glass Case where the Commission assessed the market effects rather than treating it as an automatic infringement.
Accordingly, the authors recommend the following definition:
Self-preferencing-
A Systematically Significant Digital Enterprise shall not, directly or indirectly, favour its own products, services or lines of business over those of third-party business users where such conduct-
i. creates a substantial risk of foreclosing effective competition in the market for the requesting party;
ii. Lacks any objective justification for the refusal to provide such service; and
iii. concerns a Commercially Critical Interface, defined as a platform-controlled input that is functionally indispensable for reaching end users in the relevant market, and for which no reasonably equivalent substitute exists.
Explanation- for the purposes of clause (i), conduct that creates a substantial risk of foreclosure shall include, but not be limited to, practices resulting in declining margins, exclusion from key placement mechanisms such as ranking or discount algorithms, or reduction in user engagement for similarly situated independent sellers.
This formulation borrows from EU jurisprudence while introducing context-specific thresholds that ensure enforcement is evidence-based. A conditional definition thus balances innovation incentives with competitive neutrality, offering flexibility to regulators. Incorporating it within the statutory framework would bridge existing enforcement gaps while reflecting India’s need for a nuanced, effects-oriented digital competition regime.
Way Forward
In light of the preceding discussion, the proposed definition of self-preferencing offers a timely and necessary response to the existing inefficiencies of the competition law landscape in India. This emerges as a novel concept to tackle the anti-competitive practices, particularly those arising from the growing dominance of e-commerce platforms. With the drafting of a new Digital Competition Law Bill underway, this policy proposal is poised to play a critical role in shaping the future of competition law enforcement in India.
**Kunaal Hemnani is a third-year student at Rajiv Gandhi National University of Law, Punjab and
**Khushi Vasu is a fourth-year student at Rajiv Gandhi National University of Law.
**Disclaimer: The views expressed in this blog do not necessarily align with the views of the Vidhi Centre for Legal Policy.