The Advocate General has issued an opinion in Case C-48/22 P | Google and Alphabet v Commission (Google Shopping).
The European Commission and the General Court had found that Google was leveraging its dominant position on the market for general search services to support its own comparison shopping service by favouring the display of its results.
In 2017, the Commission found that Google had given preferences to the results of its own comparison shopping service over those of competing comparison shopping services on its general search results page. Google presented search results from its comparison shopping service at the top, and, using attractive image and text information, highlighted them in so-called Shopping Units. In contrast, the search results of competing comparison shopping services appeared lower down on that page as a blue link.
As a result, users clicked on the results of Google’s comparison shopping service more frequently than those of its competitors. The associated diversion of data traffic from Google’s general results page was not based on the better quality of Google’s comparison shopping service. Rather, it was a result of the self-preferencing and leveraging effected through Google’s general results page, that is, from the exploitation of its dominant position on the market for online general search services.
However, competing price comparison services depended on data traffic from Google’s general search results page to be economically successful and to be able to remain on the market for specialised product services.
The Commission concluded that Google had abused its dominant position on the markets for online general searches and for specialised product searches and therefore imposed a fine of €2,424,495,000 on Google, for which Alphabet as Google’s sole shareholder is jointly and severally liable in the amount of >€523,518,000.
Google and Alphabet challenged the Commission’s decision. In 2021, the General Court essentially dismissed the action and confirmed the fine. However, it did not consider it proven that Google’s disputed conduct had anticompetitive effects, even potential effects, on the market for general search services. It therefore annulled the decision in so far as the Commission had also found an infringement of the prohibition of abuse of a dominant market position for that market.
Google and Alphabet then lodged an appeal with the Court of Justice. The Advocate General has now issued her opinion which says that the Court of Justice should dismiss the appeal and confirm the fine imposed on Google.
The self-preferencing of which Google is suspected constitutes an independent form of abuse through the application of unreasonable conditions of access to competing comparison shopping services, provided that it has at least potentially anticompetitive effects (as the Commission found in this case in the form of an exclusionary effect on the market for specialised product searches). The strict criteria for the recognition of abuse through the refusal of access to an ‘essential facility’ (the so-called Bronner criteria 4) do not apply.
The Commission and the General Court rightly noted that the unequal treatment of competitors was the result of self-preferencing by recourse to leveraging, whereby Google exploited its dominant position on the market for online general search services to gain a competitive advantage on the downstream market for specialised product search services, on which it did not (yet) hold such a position.
