Condemnation of Google for favoring its product comparator over competing instruments

EU Court, November 10, 2021, case. T-612/17.

Search engines allow Internet users to access the various product offers that are likely to be made to them and thus meet their expectations. For the fair functioning of the market, and in the interest of consumers, it is important that the rules of free competition are respected.

Article 102 of the Treaty on the Functioning of the European Union (TFEU) states that“is incompatible with the internal market and prohibits […] the fact, for one or more undertakings, of abusively exploiting a dominant particular by limiting outlets, “to the detriment of consumers”and applying, to “business partners, unequal conditions for equivalent services, thereby placing them at a competitive disadvantage”.

By a judgment of November 10, 2021, aff. T-612/17, the General Court of the European Union dismissed Google’s action against the financial penalty of 2,424,495,000 euros imposed on June 27, 2017 by the European Commission against it. Pursuant to the provisions referred to, it was accused of having, on the general Internet search market, abused its dominant position by favoring its own product comparator, compared to comparators of competing products.

Commission decision

The European Commission had received complaints from various companies and consumer associations. They accused Google of anti-competitive practices in the more favorable placement and display it granted, in its general search pages, to its own price comparison service than to competing services.

In its decision, the Commission held that Google occupied a dominant position on all the general search markets for information relating to product offers and prices. It considered that Google was committing an abuse of the search services market by reserving, on its results pages, a placement and display more favorable to its own price comparison service than to competing services. Google was accused of diverting traffic from competing comparison shopping services to Google’s comparison shopping service, under conditions that could have anti-competitive effects in comparison shopping services markets. For the Commission, Google’s more favorable placement and display of its own comparison shopping service diverted traffic from competing services. It establishes that Google’s behavior had anti-competitive effects capable, in particular, of eliminating competing services and reducing the ability of consumers to access the most relevant price comparison services.

Considering that Google should put an end to the alleged abuse and refrain from any act or behavior having the same or equivalent object or effect, the Commission, by decision C (2017) 4444, of 27 June 2017 , imposed on him a pecuniary condemnation in the amount of 2,424,495,000 euros (see The rem n°44, p.14). Google is bringing an action for annulment of this decision before the General Court.

Court Decision

In a very long decision (of 706 paragraphs), the Court described the operation of search engines and the practices denounced, before, by the judgment of November 10, 2021, aff. T-612/17, to dismiss Google’s action against the Commission’s decision.

A reminder is first made that search engines allow Internet users to find and reach, by means of hypertext links, the websites that meet their requests, and that search engines other than Google offer the same product and price comparison services.

The various points on which the Commission’s decision was based and which led it to consider that Google was positioning and highlighting its product comparator, on its results pages, in a more favorable manner than comparators of competing products are then examined. , thus increasing traffic to its product comparator and decreasing traffic to competing product comparators.

The General Court was called upon to rule on the six grounds for annulment raised by Google against the Commission’s decision. The latter was reproached in particular: for having concluded that Google favored its product comparison service and thus having diverted search traffic; to have seen anti-competitive effects therein; to have wrongly qualified as abusive practices qualitative improvements which represent a competition based on the merits; of having handed down a conviction without grounds.

Developing its arguments, the company Google tried to assert: that the Commission’s decision does not identify, in its behavior which consisted in implementing qualitative improvements to its internet search service, elements which away from competition on the merits; that the practices complained of constitute qualitative improvements relating to competition on the merits and which cannot be qualified as abusive; that the Commission could not require Google to grant comparators of competing products access to the services resulting from its improvements in product comparison; that the facts alleged against it were presented in an erroneous manner, whereas it introduced the groups of results for products in order to improve the quality of its service and not to direct traffic to its own product comparison service; that it already includes comparators of competing products, so that there could be no favoritism or anti-competitive effects; and that the fine imposed on it by the Commission was calculated incorrectly.

In order to rule, the Court held in particular: that the undertaking which holds a dominant position bears a particular responsibility not to undermine, by its conduct, effective and undistorted competition, and that the abuse may take the form of unjustified difference in treatment; that the Commission considered that the abusive behavior alleged against Google was constituted by objective elements, namely the more favorable positioning and presentation, in Google’s general search results, of the Google product comparator, than of competing comparators, and that this helped to favor it; that the objective of undistorted competition of Articles 101 and 102 of the TFEU implies that competition takes place on a fair basis which is not altered by unilateral behavior by dominant undertakings abusing their power on the market to restrict or eliminate competition; that an abuse of a dominant position may in particular correspond to conduct having the effect of obstructing, by recourse to means different from those which govern normal competition on the basis of the services of economic operators, the maintenance of the existing degree of competition or the development of it.

Considering that the Commission was right to consider that Google had abused its dominant position on the national product search markets, the General Court concludes that the action must be dismissed and that there is no need to alter the quantum of the financial penalty imposed on Google.

The principles of European law lead the authorities (Commission and Court) of the European Union to monitor compliance with the requirements relating in particular to free competition, by online platforms with a global dimension, with regard at least to the services that ‘they offer persons and companies which carry out, both as producers and consumers, their activities on the territory of one of the Member States, and to penalize acts of violation. In the present case, the amount of the pecuniary condemnation pronounced should be such as to henceforth ensure this respect, subject however to the confirmation, by the Court of Justice of the European Union, of this judgment which Google has appealed.

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Condemnation of Google for favoring its product comparator over competing instruments

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