General Court confirms 2.42 billion euro fine for Google
On 10 November, the EU General Court confirmed the European Commission's decision (the Decision) to impose a fine of €2.42 billion on Google for the abuse of its dominant market position in breach of Article 102 of the Treaty on the Functioning of the European Union (TFEU).
By Mats Johnsson and Thomas Nordby
The conduct which the Commission had found to be abusive in nature consisted of Google favouring its own comparison shopping services on the results pages of its general search engine, by way of a more favourable display and positioning of its own services over the results relating to other similar services. When a company in a dominant market position conducts itself in a manner which is not considered as competition on the merits, that conduct is deemed to be an abuse. The Commission found, and the General Court agreed, that Google's self-favouring of its own comparison shopping services was not competition on the merits.
The case centered on the various abuses alleged.
Of the many interesting issues raised by the judgment, one may note that the Court had introduced a broad obligation of equal treatment on the dominant player. When requiring the latter to respect this principle, the Court goes on to note that a general search engine is by definition open in nature, its "rationale and value" being to be open to and to display content from all sources. Google's self-favouring of its own comparison services is in this context sees as a "certain form of abnormality" which is inconsistent with the economic model under which the general search engine operates. The Court notes that prior to Google's launch of comparison shopping services, no difference was made among third party comparison shopping services in the general search engine, such services being displayed in the same manner. It was only after Google's entry ionto the comparison shopping market that it began favouring search results involving its own services. On that basis, the Court found that Google's conduct did not constitute competition on the merits.
In addition, in the context of an obligation imposed in the Decision on Google to give third party comparison shopping services access to its improved services, the issue arose whether its general search engine constituted an "essential facility", i.e. a resource to which Google's competitors on neighbouring market require access and to which Google has a duty to supply such access. The Court notes that Google's general search engine is "akin" to an essential facility, given that it represented a large proportion of website traffic to competing comparison shopping services and that such traffic could not be effectively replaced by other sources. On the other hand, the Court considered that the rather strict requirements set out in previous case law for granting access to an essential facility – in particular the requirement that access be indispensable to competitors – are not applicable in a case which does not concern an outright refusal of supply, but rather supply on discriminatory conditions (in the words of the Court, an "active" conduct favouring its own services as opposed to "passive" simple refusal to supply).
The Court dealt with a number of further issues, including arguments from Google to the effect that there had been no discriminatory treatment of third party comparison shopping services. The Court for the most part confirmed the Decision and did not adjust the fine imposed.
The case raises a number of interesting issues in relation to Article 102 TFEU and its application to digital services, and it would be interesting to see how the Court of Justice deals with these if and when an appeal is made.