The European General Court, part of the Court of Justice, has ruled that the fine imposed in 2017 in the context of the Google Shopping case was correctly imposed. The Commission fined Google for favoring its own price comparator.
The General Court largely dismisses the appeal of Google and parent company Alphabet against the fine. It thus maintains the fine previously imposed by the Commission. This consists of more than 2.4 billion euros for Google, of which more than 523 million euros is for the account of Alphabet. In its judgment, the General Court ruled that Google favors its own price comparison service over that of competitors. The company does this through more favorable placements. Google chooses not to place a better result above that of a lesser result. In short, if a competitor’s result was more relevant, it would never receive the same treatment as Google’s own comparator results. It is then about the way in which the results are displayed or how high they are displayed in the search results. With that, Google has chosen to leave competition on the merits.
The judges further argue that there has been abuse of a dominant position and that competition has actually been harmed. Furthermore, the General Court does not agree with Google’s assertion that there was actually competition with merchant platforms such as those of Amazon and eBay. In doing so, Google argued that competition in the market for comparison services remains strong. However, the judges say that these are two different markets and that there is therefore little competitive pressure on Google from those platforms.
Even if it were the same market, the negative effect on competition would have been enough to classify Google’s behavior as abusive. The General Court therefore agrees with the Commission on the specific market for specialized search services for comparing shops. The judges agree with Google on one point; in the market for general search services, according to the General Court, the Commission failed to demonstrate the existence of any potential harmful effects. As a result, the judges remove the finding that the law has been violated as far as this broader market is concerned.
Furthermore, the General Court ruled that there were no objective justifications for Google’s behaviour. For example, the company stated that it has improved the quality of its search service, which would then repair the exclusionary effect for competitors. In addition, Google considers that there were technical limitations that prevented it from applying equal treatment, as the Commission wanted. The Court does not agree with this. The judges argue that if the algorithm for ranking the overall results would have advantages for the competition, that still does not justify the unequal treatment.
The judges rule that the fine can stand. The point to which the Commission is rightly referred cannot, in their view, affect the amount of the fine. In addition, the General Court underlined the seriousness of the infringement and the fact that the conduct was not the result of carelessness, but was the result of conscious action.
Google could appeal the ruling, although that would be limited to the strictly legal elements. That case would then be heard by the Court of Justice; that is the highest EU court. In that case, Google must appeal within two months and ten days.
Whether the company will do so is still unknown. Politico, among others, quotes an initial response from the company, in which it indicates that it will carefully study the statement and that it concerns a very specific number of facts. In addition, a spokesperson said Google already made adjustments in 2017 to comply with the Commission’s decision. The spokesperson also emphasizes that Google’s approach has been successful for three years, in the sense that billions of clicks have been generated for more than 700 shopping services.