While Google is once again in the spotlight in the United States, the company Mountain view also continues to make headlines on this side of the Atlantic. In this continuation of the affair Google AdSensethe Court has in fact rendered a – long – decision, symptomatic in certain respects of the highly technocratic nature of this type of litigation, but also synonymous with a – short? – respite for Alphabet.
For the record, at issue in this case was the service developed by Google as part of its advertising intermediation platform, AdSense for Search (AFS), which allows third-party website publishers to serve online search advertisements when users search on a website that has Google’s search engine integrated into it. More specifically, to use AFS, publishers could notably become “direct partners” by entering into an individually negotiated “Google Services Agreement” (ASG), which, until March 2009, contained an “exclusivity clause” prohibiting the use of services identical, substantially similar or in direct competition with those provided by Google for the websites mentioned in the order form, as well as an “English clause” stipulating that, subject to the exclusivity clause, the direct partner and Google should endeavor to negotiate a new purchase order before contacting another provider of online search or advertising services. Then, from March 2009, these clauses were replaced by a “placement clause”, which required direct partners to display a minimum number of advertisements linked to Google online searches on websites using AFS and prohibited the display of competing advertisements above or directly adjacent to those from Google, and by a “prior authorization clause”, which required that direct partners obtain Google’s agreement before modifying the display of search advertisements online, including competitive advertisements.
In a decision of March 20, 2019, the Commission found that three abuses of a dominant position had been committed, via these clauses which, taking into account their complementarity, but also their common objective – namely, in essence, to oust other intermediaries competing with Google from the online advertising markets linked to searches in order to ensure in fine its hegemony over the research market in general –, together represented a single and contained infringement of Article 102 of the Treaty on the Functioning of the European Union, which lasted from 1is January 2006 to September 6, 2016. As a result, the Commission imposed a fine of 1.49…
