Case notes - In the Market for a New Form of Abuse? Google Shopping and the Law on Self-Preferencing in the EU

Pagespp 121 - 139
Published date12 January 2022
Date12 January 2022
121
In the Market for a New Form of Abuse?
Google Shopping and the Law on Self-Preferencing
in the EU
RICHARD BUNWORTH*
I. Context and the European Commission’s decision
On 27 June 2017, the European Commission (the ‘Commission’) issued its
decision against Google, nding that it had abused its dominant position on the
market for online general search services in thirteen countries in the European
Economic Area.1 It imposed a record ne of €2.42 billion and ordered Google to
bring its abusive conduct to an end.
e Commission found that Google has held a dominant position in the market for
general search services within every EEA country since 2011; it holds a very high
and stable market share by volume, has relatively few competitors, and there are
high entry barriers in the market. e abusive conduct found by the Commission
consisted of Google leveraging its dominance in the general search market to
favour its own downstream comparison shopping service, through diverting search
trac away from competing businesses and increasing trac to its own comparison
search service.
A comparison shopping service (‘CSS’) aggregates information from dierent
retailers’ websites and presents the results to internet users when they carry out a
product or service search. Google’s comparison shopping service has been through
numerous iterations since its introduction in Europe in 2004, which have included
Froogle, Product Search, Product One Box, and Product Universal, but it now
appears as Google Shopping. In order to counteract its relative unpopularity among
users, Google began positioning its own CSS higher on the results page when a user
carried out a general search and displayed it in a more eye-catching manner than
those of competing CSSs, which were displayed further down the results page in
the form of blue links (as opposed to appearing with an image). is was brought
* e author obtained an LL.B from Trinity College Dublin and a BCL from the University of
Oxford. In addition, he holds a Master of Arts from King’s College London. He is a qualied solicitor
with experience in corporate law. At present, he is a PhD candidate at University College Dublin,
with his research focusing on EU competition law. He has also worked as a consultant at the Irish
Competition and Consumer Protection Commission. e author would like to wholeheartedly
thank the editorial team for their assistance and the peer reviewers for their very helpful comments.
Any views or opinions expressed in this article are attributable to the author alone.
1 e countries concerned are Belgium, the Czech Republic, Denmark, Germany, Spain, France, Italy,
the Netherlands, Austria, Poland, Sweden, the United Kingdom and Norway.
122  
about by an alteration of Google’s general search algorithms, with Google’s own
CSS not prone to being demoted in the same manner as competitors on the general
search results page.
e Commission found that Google was diverting trac from competitors
and abusing its dominant position on the market for general searches, thereby
increasing Google’s share in the CSS market. e Commission found that general
search trac is essential for a CSS business as the trac increases the data which the
undertaking receives, enabling it to improve the service it oers and attract more
sellers. is trac, in the view of the Commission, could not be eectively replaced
by other means such as increasing spending on Google AdWords or attracting
customers through mobile apps, and was intrinsic to the business model. e
Commission found that Google’s actions were capable of foreclosing competing
CSSs and leading them to cease their services, which would then allow Google to
charge higher fees to merchants and result in higher prices for consumers.2
Google brought an action for the annulment of the Commission’s decision to the
General Court (the ‘Court’), which dismissed the most signicant parts of the
action and upheld the ne that had been imposed.3 e Court’s decision is hugely
signicant generally but for digital platforms in particular. e most pertinent
aspects of the appeal will be addressed in turn below, followed by an analysis of the
potential wider impact of the case.
II. Self-Preferencing and Competition on the Merits
(a) Leveraging, self-preferencing, and ordinary competition on the merits
Article 102 of the Treaty on the Functioning of the European Union (‘TFEU’)
sets out that an undertaking in a dominant position in the internal market (or in
a substantial part of it) is prohibited from abusing such position of dominance.4
It provides four examples of what form an abuse of dominance may take, which
include imposing unfair trading conditions, limiting production, applying
dissimilar conditions to equivalent transactions with other trading parties in order
to place them at a competitive disadvantage, and making the conclusion of contracts
subject to supplementary obligations that are unconnected to such contracts.
e rst part of Google’s appeal was based on the argument that its conduct
consisted of ordinary competition on the merits and should not constitute abuse
of its position of dominance on the market for general search results. A signicant
aspect of this argument was based upon the fact that the Commission’s nding of
2 Google Search (Shopping) (Case AT.39740) Commission Decision of 27 June 2017, para 594.
3 Case T-612/17 Google and Alphabet v Commission [2021] ECLI:EU:T:2021:763.
4 Consolidated Version of the Treaty on the Functioning of the European Union [2012] OJ C326/47,
art 102.

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