1. Introduction

Brand ranking discrimination refers to the practice whereby a business, digital platform, marketplace, search engine, retail intermediary, or online distribution service gives preferential ranking, visibility, recommendation, or placement to certain brands while disadvantaging competing brands.

It becomes a competition-law concern when ranking decisions are used to distort competition, particularly where a dominant platform:

Places its own brands above competing third-party brands.

Gives affiliated businesses preferential search visibility.

Suppresses competing brands through algorithmic ranking.

Manipulates product recommendations to favour selected suppliers.

Charges brands for visibility without adequate transparency.

Uses commercially sensitive information from competing brands to improve its own ranking or private-label products.

Brand ranking discrimination is particularly significant in e-commerce, online marketplaces, digital advertising, travel platforms, app stores, retail distribution, and search-engine markets.

The central legal question is whether ranking differences represent legitimate competition based on price, quality, relevance, consumer preferences, or advertising—or constitute exclusionary discrimination that harms competition.

2. Legal framework

A. Abuse of dominant position

A company is not prohibited from ranking its own products more favourably merely because it operates a platform. However, where it enjoys a dominant position, discriminatory ranking may constitute an abuse if it unfairly disadvantages competing businesses or restricts market access.

Relevant conduct includes:

Self-preferencing of affiliated brands.

Discriminatory ranking algorithms.

Selective demotion of rival brands.

Preferential access to promotional positions.

Manipulation of product-recommendation systems.

Discriminatory application of ranking criteria.

The assessment should consider whether the conduct is capable of restricting competition, rather than simply whether individual competitors have suffered commercial losses.

B. Discriminatory conditions of access

A platform may establish objective ranking criteria, such as:

Product quality.

Consumer ratings.

Delivery performance.

Price competitiveness.

Product availability.

Customer satisfaction.

However, applying different conditions to similarly situated businesses without an objective justification may raise competition concerns.

C. Predatory and exclusionary ranking

Ranking discrimination may become exclusionary where a platform deliberately reduces the visibility of competing brands to divert customers towards its own products.

For example, a marketplace might place its private-label electronics in the first three search results while consistently relegating equally relevant competing products to later pages.

D. Transparency and algorithmic accountability

Competition authorities may examine:

Ranking methodology.

Algorithmic parameters.

Sponsored-placement arrangements.

Changes in ranking outcomes.

Conflicts of interest.

Internal communications concerning competitor visibility.

Whether ranking criteria are consistently applied.

Transparency is important, but disclosure alone does not necessarily eliminate an underlying abuse of dominance.

3. Brand ranking discrimination under Moroccan competition law

For a Morocco-focused analysis, the principal legislation is Law No. 104-12 on the Freedom of Prices and Competition, as amended by Law No. 40-21.

A. Article 7 – Abuse of dominant position

Article 7 prohibits the abusive exploitation of:

A dominant position in the Moroccan domestic market or a substantial part of it.

A position of economic dependence where a customer or supplier lacks an equivalent alternative.

The provision expressly identifies discriminatory sales conditions among possible forms of abuse.

Accordingly, discriminatory brand-ranking practices may fall within Article 7 where they amount to unjustified discriminatory commercial treatment and have the object or potential effect of preventing, restricting, or distorting competition.

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B. Article 20 – Corrective intervention

The Competition Council may order an undertaking responsible for abuse to modify, supplement, or terminate agreements and arrangements through which the abuse was implemented.

Possible applications include:

Removing discriminatory ranking conditions.

Modifying preferential distribution agreements.

Ending unjustified exclusivity arrangements.

Correcting discriminatory commercial practices.

C. Economic dependence

A brand may depend heavily on a marketplace for access to customers. If that marketplace controls an essential distribution channel and there is no equivalent alternative, discriminatory ranking may also raise economic-dependence concerns.

D. Relevant institutional authority

The Conseil de la concurrence du Maroc is the principal competition authority responsible for examining potential abuses of dominance and economic dependence under the Moroccan framework.

4. Important case laws

The following cases provide comparative judicial principles relevant to brand-ranking discrimination. They are not all Moroccan judgments or direct brand-ranking disputes. Their relevance lies in the treatment of discrimination, exclusionary conduct, preferential access, and dominant-platform behaviour.

Case 1. Google Shopping v European Commission (2024)

Case: C-48/22 P, Google LLC and Alphabet Inc. v European Commission.

Facts:

Google gave its own comparison-shopping service prominent placement in general search results while competing comparison-shopping services were displayed less favourably and were vulnerable to demotion by Google's algorithms.

Legal issue:

Whether a dominant undertaking could abuse its market position by favouring its own specialised service over competing services.

Decision:

On 10 September 2024, the Court of Justice dismissed Google's appeal and upheld the finding of abuse of dominant position.

Legal principle:

A dominant platform's preferential treatment of its own service may constitute exclusionary abuse when it departs from competition on the merits and is capable of producing anticompetitive effects.

Application:

This is the most directly relevant precedent for brand-ranking discrimination. A marketplace that systematically favours its own brands over equally relevant competing brands may face similar scrutiny.

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Case 2. MEO – Serviços de Comunicações e Multimédia v Autoridade da Concorrência (2018)

Case: C-525/16, Court of Justice of the European Union.

Facts:

A dominant undertaking applied different remuneration conditions to competing commercial operators.

Legal issue:

Whether discriminatory pricing between trading partners automatically amounted to an abuse of dominance.

Decision:

The Court explained that different treatment is not sufficient by itself. It is necessary to assess whether the discrimination places a trading partner at a competitive disadvantage.

Legal principle:

The assessment of discrimination requires consideration of the actual or potential impact on competition, including the circumstances of the market and the parties' competitive positions.

Application:

A ranking platform should not be condemned simply because brands receive different positions. The authority should examine whether the ranking differences disadvantage competing brands and distort competition.

Case 3. British Airways plc v Commission (2007)

Case: C-95/04 P, British Airways plc v Commission.

Facts:

British Airways operated incentive arrangements for travel agents that gave different financial rewards depending on their sales performance.

Legal issue:

Whether discriminatory incentive arrangements imposed by a dominant undertaking could distort competition.

Decision:

The Court upheld the finding of abuse of dominant position.

Legal principle:

A dominant undertaking must not use discriminatory commercial arrangements that place trading partners at a competitive disadvantage and distort competition.

Application:

A marketplace offering privileged ranking opportunities to selected brands through discriminatory commercial incentives may raise comparable concerns.

Case 4. United Brands Company v Commission (1978)

Case: 27/76, United Brands Company v Commission.

Facts:

United Brands was accused of imposing different prices and commercial conditions on different customers without objective justification.

Legal issue:

Whether a dominant undertaking could impose dissimilar conditions for equivalent transactions.

Decision:

The Court recognised discriminatory pricing and commercial conditions as possible forms of abuse under competition law.

Legal principle:

A dominant undertaking cannot arbitrarily impose unequal commercial conditions on equivalent trading relationships where the conduct satisfies the requirements of abuse.

Application:

If two brands offer comparable products under equivalent conditions but receive substantially different ranking treatment without objective justification, this principle may become relevant.

Case 5. Clearstream Banking AG v Commission (2012)

Case: T-301/04, Clearstream Banking AG and Clearstream International SA v Commission.

Facts:

Clearstream was found to have discriminated against a competing service provider in the provision of clearing and settlement services.

Legal issue:

Whether discriminatory access conditions imposed by an undertaking holding a powerful market position constituted an abuse.

Decision:

The General Court upheld the Commission's finding of abuse concerning discriminatory treatment and access conditions.

Legal principle:

A dominant undertaking controlling an important commercial infrastructure must not impose unjustified discriminatory conditions on competing businesses.

Application:

A major online marketplace may function as an important distribution infrastructure. Discriminatory access to visibility and ranking opportunities may therefore raise similar competition concerns.

Case 6. Commercial Solvents Corporation v Commission (1974)

Cases: Joined Cases 6/73 and 7/73, Istituto Chemioterapico Italiano and Commercial Solvents v Commission.

Facts:

Commercial Solvents controlled an important supply of raw materials and refused to continue supplying a customer competing in a downstream market.

Legal issue:

Whether a dominant supplier could use its control over an essential input to eliminate downstream competition.

Decision:

The Court upheld the finding that the refusal to supply constituted an abuse.

Legal principle:

A dominant undertaking must not exploit control over an important input to eliminate competition in a related market.

Application:

A marketplace controlling access to important consumer traffic may use ranking visibility as a commercially significant input. Selectively denying that visibility to competing brands may raise analogous leveraging concerns.

Case 7. Microsoft v Commission (2007)

Case: T-201/04, Microsoft Corp. v Commission.

Facts:

The case concerned Microsoft's dominant position and its refusal to provide interoperability information, together with separate tying practices.

Legal issue:

Whether a dominant undertaking could use control over a key technological platform to disadvantage competing products and services.

Decision:

The General Court largely upheld the Commission's findings of abuse.

Legal principle:

Control over an important technological platform can create opportunities for exclusionary conduct against competitors in neighbouring markets.

Application:

A digital marketplace controlling product discovery, customer data, search visibility, and recommendation systems may similarly possess the ability to disadvantage competing brands.

5. Economic tests for identifying discriminatory ranking

Competition authorities should apply several economic and legal tests.

A. Market definition

Relevant markets may include:

Online marketplace intermediation.

Brand-specific product distribution.

Digital advertising and sponsored placements.

Product-search and recommendation services.

Retail distribution of particular product categories.

B. Foreclosure analysis

The authority should examine:

Whether competing brands lose meaningful visibility.

Whether lower rankings reduce customer traffic.

Whether the platform's own brands receive preferential treatment.

Whether competing businesses can access alternative distribution channels.

Whether the practice is capable of weakening competitors over time.

C. Objective justification

Ranking differences may be legitimate when based on genuine differences in product quality, customer satisfaction, delivery reliability, price, or relevance.

A platform should be able to demonstrate that its ranking criteria are objectively defensible and consistently applied.

6. Practical examples of brand ranking discrimination

Example 1: Private-label preference

An online marketplace ranks its own household cleaning products above equivalent independent brands despite comparable prices, quality and customer ratings.

Potential issue: Self-preferencing and exclusionary discrimination.

Example 2: Selective brand demotion

A dominant marketplace reduces the ranking of competing smartphone brands after they refuse to purchase additional advertising services.

Potential issue: Discriminatory commercial treatment and potential leveraging abuse.

Example 3: Sponsored ranking manipulation

A platform advertises that its ranking system is based on relevance but secretly provides preferential placement to selected brands.

Potential issue: Discriminatory access to visibility and potentially misleading commercial practices.

Example 4: Exclusive brand visibility

A marketplace grants a particular manufacturer privileged access to its homepage and recommendation engine through an exclusivity arrangement.

Potential issue: Foreclosure of competing manufacturers.

Example 5: Algorithmic discrimination

An algorithm systematically disadvantages independent brands while favouring affiliated brands, even when products satisfy comparable ranking criteria.

Potential issue: Algorithmic self-preferencing and abuse of dominance.

7. Enforcement challenges

Brand ranking discrimination presents several practical enforcement difficulties.

A. Algorithmic opacity

Competition authorities may struggle to understand how algorithms determine product rankings.

B. Evidentiary difficulties

A competitor may observe a decline in visibility but find it difficult to establish that the platform deliberately or systematically discriminated against it.

C. Dynamic market conditions

Ranking systems change frequently. A practice that appears neutral at one point may become discriminatory following algorithmic modifications.

D. Distinguishing advertising from organic ranking

Paid advertising and organic search results must be examined separately. Commercially sponsored placements are not automatically unlawful, provided applicable legal requirements are respected.

E. Establishing competitive harm

A reduction in one brand's visibility does not automatically establish an infringement. Authorities must examine market power, competitive effects and legitimate justifications.

8. Remedies and compliance measures

Potential remedies under an applicable competition-law framework include:

For Morocco, Article 20 of Law 104-12 provides an important corrective mechanism through which the Competition Council may require modification or termination of arrangements responsible for abuse.

9. Application to Morocco: hypothetical case study

Facts

Assume a dominant Moroccan online marketplace operates in the household-appliance sector.

It distributes independent manufacturers' products while also selling its own private-label appliances.

The marketplace introduces a ranking algorithm that:

Places its private-label products in the first three positions.

Demotes competing manufacturers.

Gives affiliated brands preferential recommendation opportunities.

Uses competing brands' sales information to develop its own products.

Provides no objective explanation for the differential treatment.

Legal issues

Whether the marketplace possesses a dominant position.

Whether competing brands are commercially dependent on the marketplace.

Whether the ranking algorithm constitutes discriminatory commercial treatment.

Whether preferential treatment has exclusionary effects.

Whether the marketplace possesses objective justifications.

Whether the conduct restricts competition in the Moroccan market.

Applicable legal framework

Article 7 of Law 104-12 is particularly relevant where the conduct amounts to abuse of dominance or economic dependence through unjustified discriminatory commercial conditions.

Article 20 may become relevant to corrective intervention.

Possible outcome

If the Competition Council establishes dominance or economic dependence, unjustified discrimination, and an actual or potential restriction of competition, it may find an infringement and impose appropriate remedies under the applicable legislation.

However, the mere fact that the marketplace ranks its own products first would not automatically establish an infringement. The economic evidence and competitive effects would be essential.

10. Key legal principles emerging from the case laws

The seven comparative cases establish several important principles:

Google Shopping: Preferential ranking by a dominant platform can constitute exclusionary abuse.

MEO: Differential treatment must be assessed in terms of its competitive disadvantage and effects.

British Airways: Discriminatory incentive structures may distort competition.

United Brands: Unjustified discriminatory commercial conditions may constitute abuse.

Clearstream: Control over important commercial infrastructure creates responsibilities concerning discriminatory access.

Commercial Solvents: Control over an important input must not be used to eliminate downstream competition.

Microsoft: Technological platform control may facilitate exclusionary conduct in neighbouring markets.

These cases provide persuasive comparative guidance for evaluating brand-ranking discrimination, although their legal rules must be applied through the relevant Moroccan statutory framework.

11. Conclusion

Brand ranking discrimination is an increasingly important competition-law issue because digital platforms exercise substantial influence over how consumers discover, compare and purchase products.

The central concern is not whether a platform has the freedom to organise its search results. It is whether a business with significant market power exploits its ranking control to give affiliated brands unjustified advantages or systematically disadvantage competing businesses.

For Morocco, Article 7 of Law 104-12 provides the principal statutory foundation where discriminatory ranking constitutes an abuse of dominance or economic dependence.

The Google Shopping judgment is particularly important because it demonstrates how preferential algorithmic visibility can become an instrument of exclusionary conduct.