The Google Case in the EU

• Author: Ioannis Kokkoris
• DOI: 10.1177/0003603X17708362
• Date: 01 June 2017
• Published date: 01 June 2017

Article

The Google Case in the EU:

Is There a Case?

Ioannis Kokkoris*

Abstract

This article discusses the European Commission’s investigation of Google in relation to the alleged

abuse in the online search market concerning Google’s comparison shopping service. Drawing a

comparison with the investigation conducted by the Federal Trade Commission in the U.S., the analysis

focuses on whether the conditions of Article 102 of the Treaty on the Functioning of the European

Union (TFEU) are satisfied and whether there is scope to conclude that the Google’s conduct has

caused harm to consumers or restricted competition. In particular, insights relating to the treatment of

innovation in competition law will be provided. Finally, the article aims at shedding light on the

investigation and at predicting the possible theory of harm to which the European Commission will

make reference.

Keywords

Google, abuse of dominance, innovation, market power, essential facilities doctrine

A lot of our search innovation has come from our own frustration with Google’s results.

1

I. Introduction

The aim of this article is to discuss the online search market and the investigation of the European

Commission into Google’s comparison shopping service.

2

The European Commission has argued that

Google has abused its dominant position.

Google was investigated by the Federal Trade Commission (FTC) in the U.S. with regard to

whether its conduct could qualify and be sanctioned as abusive and infringing U.S. antitrust law. The

*Centre for Commercial Law Studies, Queen Mary University of London, UK

Corresponding Author:

Ioannis Kokkoris, Chair in Law and Economics, Centre for Commercial Law Studies, Queen Mary University of London, 67–69

Lincoln’s Inn Fields, WC2A 3JB, London, UK.

Email: i.kokkoris@qmul.ac.uk

1. Eric Schmidt, The New Gru¨ndergeist (Oct. 13, 2014), http://googlepolicyeurope.blogspot.co.uk/2014/10/the-new-

grundergeist.html (last visited Jan. 16, 2016).

2. EUROPEAN COMMISSION,“GOOGLE PRODUCT SEARCH” AND “GOOGLE SHOPPING” (Apr. 25, 2013), http://europa.eu/rapid/press-

release_MEMO-13-383_en.htm (last visited Jan. 27, 2017) and in detail below.

The Antitrust Bulletin

2017, Vol. 62(2) 313-333

ªThe Author(s) 2017

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DOI: 10.1177/0003603X17708362

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investigation lasted nearly two years, and it involved an extensive review of evidence. The U.S. FTC

did not find sufficient proof that Google had abused its dominance. We should note that the European

Commission is not bound by the U.S. FTC, and for an allegation of abuse to be proved, the European

Commission has the burden to adduce evidence that there has been harm to consumers or that Google’s

conduct has inhibited the competitive process.

The article will address in detail Google’s allegedly anticompetitive conduct in the online search

market in relation to the comparison shopping service and assess whether such conduct constitutes an

abuse of dominance pursuant to Article 102 of the Treaty on the Functioning of the European Union

(TFEU). The analysis will take into consideration th e relevant discussion in the U.S., seeking to

highlight appropriate insights relating to the treatment of innovation in that jurisdiction, mindful of

the differences characterizing the U.S. and the EU antitrust law. Finally, the article aims to present

some observations from this discussion that will hopefully shed some light on the investigation that has

sparked wide debate in academic and practitioner circles on both sides of the Atlantic and beyond.

II. A Brief Account of the Google Investigation in the U.S.

In the United States, the FTC investigation focused on whether Google’s practices, specifically the fact

that its search engine often seemed to favor other Google products/services (i.e. Google’s own content)

in the presentation and order of the results it returned, infringed the pertinent U.S. antitrust provisions.

3

In other words, the investigation sought to clarify whether the aforementioned practices, which may at

times exercise a detrimental effect on Google’s competitors, were the result of a quality improvement

in online search designed by Google that would be beneficial for consumers and consumer welfare or

rather a deliberate attempt by Google to harm and exclude its rivals.

4

The investigation lasted nearly two years, and, as is mentioned in the FTC’s statement,

5

it involved

an extensive review of evidence and of relevant submissions by both Google and its competitors as

well as further stakeholders, such as consumer organizations.

6

Google’s unilateral practices could theoretically, if the necessary conditions were deemed to be

met, give rise to antitrust liability in the U.S. on the legal basis of Section 2 of the Sherman Act—the

counterpart to Article 102 TFEU—which sanctions conduct that amounts to “monopolization” or

“attempted monopolization.”

7

This would be the case if it were proven that the conduct in question

of a firm possessing monopoly power would create, maintain, or enhance monopoly power and would

thus reduce competition and consumer welfare.

8

Consumer welfare alongside efficiency are consid-

ered to constitute the aims of U.S. antitrust law and provide a relatively clear criterion when concerns

of exclusionary conduct arise.

9

3. See FTC, STATEMENT OF THE FEDERAL TRADE COMMISSION REGARDING GOOGLE’SSEARCH PRACTICES,IN THE MATTER OF GOOGLE

INC. (2013), http://https//www.ftc.gov/sites/default/files/documents/public_statements/statement-commission-regarding-

googles-search-practices/130103brillgooglesearchstmt.pdf, at 2 et seq.

4. Id. at 2 et seq.; see also Marina Lao, Search, Essential Facilities and the Antitrust Duty to Deal,11N

W.J.TECH.&INTELL.

PROP. 276 (2013); Marvin Ammori & Luke Pelican, Proposed Remedies for Search Bias “Search Neutrality” and Other

Proposals in the Google Inquiry (May 2012), http//ssrn.com/abstract¼2058159 at 4.

5. STATEMENT OF THE FEDERAL TRADE COMMISSION REGARDING GOOGLE’SSEARCH PRACTICES,IN THE MATTER OF GOOGLE INC., supra

note 3.

6. Id. at 1.

7. See e.g. Ammori & Pelican, supra note 4. The FTC seems to have further considered Section 5 Sherman Act as a potential

legal basis in this case.

8. See Joshua D. Wright, Defining and Measuring Search Bias: Some Preliminary Evidence (2011), http//ssrn.Com/

abstract¼2004649.

9. Cf. on consumer welfare as the goal of U.S. antitrust, ROBERT H. BORK,THEANTITRUST PARADOX:APOLICY AT WAR WITH ITSELF

(1978).

314 The Antitrust Bulletin 62(2)