Self-Preferencing Debate Intensifies as EU Prepares Record DMA Fine Against Google

The European Commission is finalizing a penalty against Alphabet Inc.'s Google that will run into the high triple-digit millions of euros, CNBC reported on May 26, citing the German newspaper Handelsblatt. The fine, the largest ever levied under the Digital Markets Act, targets Google's practice of favoring its own services in search results over those of rival comparison-shopping engines, travel aggregators, and local-discovery platforms. The Commission's preliminary findings, which Reuters has characterized as the agency's most consequential enforcement action under the DMA to date, order Google to dismantle the technical mechanisms that steer users toward Google-owned verticals. The case marks the point at which the continent's self-preferencing doctrine collides head-on with the question that has divided antitrust scholars for a decade: when a platform is found to have illegally preferred itself, what remedy actually restores competition?

Self-preferencing as a standalone theory of harm first crystallized in the European Commission's 2017 Google Shopping decision, a EUR 2.42 billion penalty that the EU General Court upheld in 2021 and that the European Court of Justice largely affirmed in 2024. That precedent held that a dominant search engine violates Article 102 TFEU when it systematically demotes rival services while elevating its own. The DMA, which entered into force on a staggered compliance schedule through 2023 and 2024, codified the prohibition in statutory text. Article 6(5) of the DMA requires designated gatekeepers to "refrain from treating more favorably, in ranking and related indexing and crawling, services and products offered by the gatekeeper itself" compared with those of third parties. What the statute did not specify was what a compliant remedy looks like, and that omission is now producing radically different answers in different jurisdictions.

The remedy most associated with self-preferencing enforcement is the choice screen. The concept has a long lineage. In 2010, the Commission accepted commitments from Microsoft requiring the company to present European Windows users with a browser choice screen that listed competing products in randomized order. The remedy was widely criticized as administratively fragile; Microsoft's own compliance slipped in a 2013 lapse that earned the company a EUR 561 million penalty. In 2018, the Commission imposed a search-engine choice screen on Google's Android operating system, requiring Google to present European users with a selection of search providers during device setup. That remedy has produced mixed results. Smaller search engines have complained that the auction mechanism Google used to allocate slots on the screen effectively recreated the pay-to-play dynamic the remedy was supposed to eliminate.

The current DMA investigation into Google's search practices, however, is pursuing a different remedy architecture. Rather than a front-end choice screen, the Commission has proposed requiring Google to grant third-party search engines and AI-powered search tools access to its underlying search data, including click-and-query data, ranking signals, and the index of web pages Google crawls. Reuters reported on April 16 that the Commission's preliminary order frames data access as the structural precondition for competing search services to improve their relevance. The logic is that a choice screen without competitive parity in result quality merely shuffles users among unequal options, and that true contestability requires Google to share the data moat that makes its search engine difficult to replicate.

That same tension is playing out on a parallel track in the United States. On May 7, Judge Amit Mehta of the U.S. District Court for the District of Columbia rejected Google's motion to stay the remedy phase of the Department of Justice's search monopolization case while the company appeals his August 2024 liability ruling, Bloomberg reported. The DOJ's proposed remedy, filed during the remedies phase that began in earnest this year, includes a provision requiring Google to share its search data and index with competitors, a measure modeled in part on the EU's approach. The DOJ has also floated a choice-screen remedy for Android devices and for the Apple Safari default-search contract, though the data-access provision has received more sustained attention from the court.

Judge Mehta's May 7 order did not address the merits of the data-access remedy directly. It addressed only the procedural question of whether the remedy proceedings should be paused pending appeal. The judge's reasoning, however, signaled a view that the remedial phase raises distinct factual questions from the liability phase and that delaying it would prejudice the government's interest in timely relief. That posture matters because it means the remedy trial will proceed even as the D.C. Circuit reviews the underlying monopolization finding. Google's liability appeal, which MacRumors covered on May 22, argues that Apple's decision to set Google as the default search engine on Safari was the result of independent commercial judgment, not coercion, and that the trial court's market-definition analysis was flawed.

The U.S. legal framework for self-preferencing differs from the EU's in a legally significant way. Section 2 of the Sherman Act, under which Google was found liable, does not contain a standalone self-preferencing prohibition. The DOJ's case turned on the theory that Google's default-search agreements with Apple, Samsung, and Mozilla constituted exclusionary contracts that foreclosed rivals from achieving the query scale necessary to compete. Self-preferencing, in the American formulation, is evidence of the anticompetitive effects of those contracts, not an independent cause of action. This distinction has implications for remedy design. A choice screen addresses the default-placement problem directly by giving users an explicit selection. A data-access remedy addresses a different mechanism of foreclosure: the data feedback loop that makes Google's search results better as it accumulates more queries.

The conceptual disagreement over which remedy best restores competition was dramatized in California's state legislature this spring. Senate Bill 1074, the Banning Anticompetitive Self-Preferencing and Exclusionary Defaults Act, or BASED Act, would have prohibited large digital platforms from favoring their own products, services, or lines of business in ranking, indexing, or display. On April 20, the Senate Judiciary Committee deadlocked 3-3, effectively killing the bill. 9to5Mac reported that Apple mounted an aggressive lobbying campaign against the legislation, arguing that a self-preferencing ban would degrade user experience by preventing the company from seamlessly integrating its own services into iOS and macOS.

The BASED Act's defeat illustrates a recurring structural challenge for self-preferencing legislation at the state level. The companies most affected by such a ban, Apple, Google, Amazon, and Meta, are all headquartered in California. Their lobbying presence in Sacramento is dense, and the coalition of rivals that might support a self-preferencing bill, which includes Yelp, Spotify, DuckDuckGo, and Epic Games, has not achieved the legislative critical mass in any U.S. state that it has managed in Brussels. A similar bill introduced in New York's state senate in 2025, the Digital Fairness Act, stalled in committee without reaching a floor vote.

Meanwhile, the European Commission has been expanding its self-preferencing enforcement beyond search. On April 30, Quartz reported, citing a Commission communication, that the EU ordered Google to grant third-party AI services access to Android's operating-system interfaces on the same terms that Google's own Gemini AI assistant enjoys. The order applies Article 6(5) DMA to AI integration, treating the preinstallation and default activation of Gemini on Android devices as a form of self-preferencing. Apple filed a submission to the Commission warning that the order posed risks to user privacy and security, MacRumors reported on May 13. Apple's intervention is notable because the company is itself subject to DMA obligations and is under a separate Commission investigation over whether its App Store ranking algorithms favor Apple's own apps.

The App Store investigation connects self-preferencing to the choice-screen debate in a concrete way. TechCrunch reported in February that alternative app stores, including Setapp Mobile, AltStore PAL, and the Epic Games Store, are now operational in the EU under the DMA's sideloading and alternative-distribution mandates. But those stores must still compete for user attention against Apple's own App Store, which remains preinstalled and prominently surfaced on every iPhone. Critics argue that allowing alternative stores without a choice screen during device setup creates a hollow contestability right and that Apple can comply with the DMA's letter while defeating its purpose.

Apple's defense, laid out in a compliance report published in March, is that the DMA does not require a choice screen for app stores and that users can discover alternative stores through Safari, the web, or other channels. The Commission's review of the DMA, published on April 28 and analyzed by JD Supra, flagged this exact argument as a compliance gap. The review noted that while the DMA has enabled alternative app distribution, "the persistence of default effects and low consumer switching rates suggests that the current interoperability and choice architecture obligations may need to be strengthened." That sentence is as close as a Commission staff document gets to endorsing mandatory choice screens.

Google, for its part, has been attempting to narrow the scope of its exposure. On May 6, The Next Web reported that Google submitted a package of concessions to the Commission aimed at settling a separate DMA investigation into whether the company demotes news publishers' pages that carry third-party advertising. The proposed commitments include a revised ranking module that would give publishers more granular visibility into how their pages are surfaced in Google News and Search. The Commission has not yet indicated whether it will accept the offer, market-test it, or proceed to a non-compliance finding.

The analytical heart of the choice-screen debate has moved from the question of whether self-preferencing is harmful, a proposition that the Commission, the DOJ, the General Court, and Judge Mehta have all accepted in their respective domains, to the question of what a choice screen actually measures. Proponents argue that choice screens restore competitive conditions by returning the initial selection to the user. Skeptics point to the EU's Android search-engine choice screen as evidence that a poorly designed screen entrenches incumbents by presenting users with unfamiliar brand names alongside the dominant offering, leading most users to select the option they recognize. A 2025 study by the Centre on Regulation in Europe, a Brussels-based think tank, found that Google's search share on Android devices in the EU declined by approximately 2 percentage points after the choice screen was introduced, a result the authors characterized as statistically significant but commercially trivial.

The data-access remedy now being pursued in both Brussels and Washington is an attempt to solve the choice-screen design problem by making rival services better rather than simply more visible. The theory is that if competitors can build a search product with comparable result quality, a choice screen becomes unnecessary because users will migrate organically. The counter-theory, pressed by DuckDuckGo and other privacy-focused search engines in their submissions to both the DOJ and the Commission, is that data access alone is insufficient without a mechanism, like a choice screen, that forces users to confront the existence of alternatives.

This subsidiary debate over the interaction between data access and choice architecture has begun to surface in the DOJ's remedy proceedings as well. On May 1, Courthouse News Service reported that the DOJ filed a motion to limit Google's ability to use data obtained from competitors during the remedy-discovery process. The government argued that Google's access to rival search data, even under a protective order, risked giving the company a further informational advantage. The motion, though procedural, revealed the DOJ's deeper concern: that any remedy granting Google reciprocal access to competitors' data would replicate the asymmetry the remedy is meant to cure.

The appellate map and what to watch

The near-term calendar for self-preferencing enforcement runs through three venues. In Brussels, the Commission is expected to issue its final DMA decision against Google before the August recess, with the fine amount and specific behavioral remedies disclosed in full. That decision will almost certainly be appealed to the General Court in Luxembourg, where a suspension ruling could pause the remedies during the multi-year appeal unless the court finds that urgency or irreparable harm favors the Commission. In Washington, the DOJ's remedy trial before Judge Mehta is expected to run through the second half of 2026, with a final remedial order likely in early 2027. The D.C. Circuit will hear Google's liability appeal on a parallel track, with oral argument likely in late 2026. In Sacramento, the BASED Act's sponsors have signaled they will reintroduce the bill in the 2027 session, though the 3-3 committee deadlock suggests that absent a change in the committee's composition, the path remains narrow.

The structural question that unites these proceedings is whether the choice screen, an idea now fifteen years old, remains the right tool for a platform market that looks nothing like the browser wars of the early 2010s. In a market where default placement is increasingly reinforced by AI-generated answers, voice-interface replies, and operating-system-level integrations, a pop-up menu during device setup may address a fraction of the competitive harm. The Commission and the DOJ appear to recognize this. Their remedy proposals reach deeper into the platform's data infrastructure, and the legal fights over those proposals will define whether self-preferencing enforcement evolves beyond the choice screen, or merely refines it.