CJEU upholds General Court decision in Google Shopping case
The Court of Justice of the EU has ruled in Case C-48/22 P | Google and Alphabet v Commission (Google Shopping). It upheld the fine of €2.4 billion that the European Commission had imposed on Google for abusing its dominant position by favouring its own comparison shopping service.
In June 2017, the European Commission found that, in 13 EEA countries, Google had given preference, on its general search results pages, to the results of its own comparison shopping service over those of competing comparison shopping services. This meant that Google had presented search results from its own comparison shopping service in a primary position and had promoted them in “boxes” with accompanying attractive image and text information.
By contrast the search results of competing comparison shopping services appeared as simple generic results (displayed in the form of blue links). Therefore, they were liable to be demoted by adjustment algorithms in Google’s general results pages, unlike Google’s own results.
The European Commission concluded that Google had abused its dominant position on the markets for online general searches and for specialised product searches and imposed the fine.
Google and its shareholder Alphabet challenged the Commission’s decision before the General Court of the European Union. In November 2021, the General Court largely dismissed the action and, in particular, upheld the fine. However, it did not consider it proven that Google’s practice had had (even potential) anti-competitive effects on the market for general search services. Consequently, it annulled the Commission’s decision to the extent that the Commission had also found an infringement of the prohibition of abuse of a dominant position for that market.
Google and Alphabet then lodged an appeal with the Court of Justice, seeking that the judgment of the General Court be set aside in so far as it had dismissed their action and that the Commission decision be annulled.
The Court of Justice has dismissed the appeal and upheld the General Court’s judgment. It said that EU law does not prevent the existence per se of a dominant position, but only the abusive exploitation of a dominant position. The conduct of undertakings in a dominant position that has the effect of hindering competition and is likely to cause harm to individual undertakings and consumers is prohibited. That conduct covers any practice which has the effect of hindering the maintenance or growth of competition in a market in which the degree of competition is already weakened, because of the presence of one or more undertakings in a dominant position.
The Court of Justice states that there is no general rule that a dominant undertaking which treats its own products or services more favourably than it treats those of its competitors is engaging in conduct which departs from competition on the merits irrespective of the circumstances of the case. However, in this case it ruled that the General Court correctly established that, in the light of the characteristics of the market and the specific circumstances of the case, Google’s conduct was discriminatory.
