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Aude Guyon, associate lawyer at Fiducial Legal by Lamy, and Joséphine Briand, lawyer at the same firm, return to the abuse of Google’s dominant position.
TRIBUNE. Almost 15 years after the start of the case, the Court of Justice of the European Union (the CJEU) has finally put an end to the Google Shopping affair.
By a judgment of 10 September 2024, the CJEU, sitting as Grand Chamber, confirmed the fine of 2.4 billion euros issued by the European Commission against Google for having abused a dominant position on several national internet search markets by favouring its own product comparison service, Google Shopping, to the detriment of competing product comparators (CJEU 10 Sept. 2024, case C‑48/22 P).
The beginnings of the affair
By a decision of 27 June 2017, the Commission had imposed a record fine of 2.4 billion on Google at the time for having favoured, via its search engine, its “Google Shopping” service. Since then, this amount has been exceeded by the new fine of €4.125 billion, still imposed on Google but this time for having imposed its search engine on Android devices (TEU, case T-604/18, 14 September 2022, appeal pending before the CJEU).
Returning to the Google Shopping case, the Commission considered that Google had abused its dominant position on the market for general search services by implementing self-preference practices. Google highlighted on its results pages, “in a prominent and attractive manner in dedicated “boxes””, its own product comparison service and, thanks to adjustment algorithms, downgraded competing product comparison services beyond the first page of results.
Thus, this presentation of results on the general search pages of the American company made it possible to increase traffic on the pages of the Google product comparison site to the detriment of traffic on competing comparison services.
Google’s reaction
After unsuccessfully appealing to the General Court of the European Union (GCU) to have the Commission’s decision annulled, Google has now lodged an appeal with the CJEU.
In this case, the CJEU was asked to determine the criteria for classifying a practice of self-preferential treatment on digital markets as an abuse of a dominant position.
First, Google criticised the TEU for not having applied the criteria established by the CJEU in the Bronner judgment in the event of refusal of access to an essential facility.
On this point, the CJEU considers that when a company provides access to its infrastructure but subjects this access to unfair conditions, the criteria of the Bronner judgment do not apply (the conditions from the Bronner case relating to a refusal to provide access to an infrastructure). It thus considers that in this case Google is not refusing its competitors access to its general search service and general results pages, but is subjecting this access to unfair conditions.
Google then criticised the TEU for having taken into consideration three factors, namely the importance of the traffic generated by Google’s general search engine for product comparison sites, the behaviour of users when they carry out searches on the Internet, and the impact of the diverted traffic from the general results pages, in determining that the company Google has departed from competition on the merits. According to the accused, these elements should not have been taken into account because they do not relate to the nature of its conduct, but concern the alleged probable effects of the conduct with which it is accused.
A sanction without surprise
The CJEU rejects Google’s argument, considering that the circumstances that can be taken into account to determine whether conduct should be classified as an abuse of a dominant position are those that concern the conduct itself but also those relating to the markets in question or to the functioning of competition on them. However, the three circumstances taken into consideration by the TEU make it possible to place Google’s practices in the context of the markets concerned, and to determine that the success of Google Shopping and the exclusionary effects on the market for specialized search for product comparison were not due to the merits of Google Shopping.
Furthermore, the CJEU confirmed that the Commission was not required to carry out a counterfactual analysis to examine the causal link between the alleged abuse and its likely effects. While Google could put forward such an analysis, the Commission is free to use different evidence, without being required to systematically resort to a counterfactual analysis.
Similarly, the CJEU considered that it was not necessary to examine whether the practices were likely to oust “equally effective competitors”, since this test was not mandatory and would not have been able to obtain objective and reliable results in this case given the significant impact of Google’s conduct on competition.
As a result, the CJEU confirms the €2.4 billion fine imposed by the Commission on Google. This conviction is not really a surprise, on the one hand, given the conclusions of the Advocate General who had invited the CJEU to confirm the fine last January, and on the other hand, given the Digital Market Act which provides for a ban on self-preferential practices for gatekeepers (such as the Google Shopping service).
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