On June 27, The European Commission fined Google €2.42 billion for abusing dominance as a search engine by giving advantage to its own comparison shopping service.
Google’s “flagship” product is its search engine, with a global market share of over 78% and over 90% in the EU. 90% of Google’s revenues come from selling advertising on its search engine. The present case concerns another product, its comparison shopping service, currently named Google Shopping. When entering a product name, Google Shopping compares products and prices online and presents the results to end-users. In doing so, Google accesses other platforms such as Amazon or eBay. Google Shopping is embedded in Google’s search engine so that it is not necessary to visit Google Shopping separately. A regular search for a product on its main engine prominently displays Google Shopping results at the top. This, in Commission’s view, is Google’s main transgression.
The Commission is currently running three separate cases against Google. The present case should not be confused with a similar but conceptually different one the Commission is running against Google’s practices concerning its Android operating system. That investigation into Google’s Android has been running from 2015 and has not concluded yet. It should equally not be confused with the Commission’s 2016 investigation of agreements between Google and partners of its online search advertising intermediation programme AdSense. While Google’s dominance in the search market is what connects these cases, the underlying legal basis on which the Commission relies is not the same in them and they should be analysed separately.
The investigation dates back to 2010. After a lengthy investigation, the then-commissioner Joaquín Almunia sought to reach a deal with Google in 2012, avoiding formally charging it, a strategy for which he was heavily criticised. After Margrethe Vestager assumed office in November 2014, the case started moving at a somewhat faster pace. The Commission sent the original statement of objections in September 2015. Google outlined its responses to the Commission in a blog post in November 2016. The supplementary statement of objections has been sent in July 2016 to which further responses followed.
In reaching its present decision, the Commission’s starting point is that there should be competition between comparison shopping services. Google has used its dominant position on the search market to allegedly illegally promote its own comparison shopping service. The Commission’s argument is that Google has:
- “systematically given prominent placement to its own comparison shopping service”
- “demoted rival comparison shopping services in its search results”
Put in simple terms, the Commission claims that Google is not only relying on its dominance in the search market to push its own comparison shopping service but is taking active steps to ensure that rivals’ services are not readily accessible. The Commission concludes that Google is dominant in the search engine market and that it has abused its dominance by giving its own shopping service an illegal advantage.
In comments to the original and supplemental statement of objections, Google indicated that it believed the Commission’s definition of the relevant market to be narrow. In choosing to focus on comparison shopping websites only, the Commission was ignoring the broader dynamics of consumer shopping. Google’s June 27, 2017 response to the decision repeats in an abbreviated form the arguments heard before. In Google’s view, the Commission does not provide convincing reasons for only targeting the more recent version of its shopping product which has been available for many years without objection. Furthermore, the Commission does not adequately address the overall decline of comparative shopping products which Google believes to be a direct result of the increasingly popular Amazon and eBay. Google’s November 2016 response claims
that online shopping is robustly competitive, with lots of evidence supporting the common-sense conclusion that Google and many other websites are chasing Amazon, by far the largest player on the field.
If one is to look for market power, one has to see what market that power is supposedly exercised on. There is no doubt that market definition in online markets is a rather complicated exercise. At present, horizontal search engines (Google, Bing, etc), vertical search engines (e.g. Pricerunner) and vendor platforms (Amazon, eBay) all compete for the same custom. Furthermore, the SSNIP test (small but significant and non-transitory increase in price) does not seem to be effective in narrowing down the market for online shopping. It can be said with some confidence that Google’s competitors are not only the other comparison shopping websites (nor even other search engines) but other intermediaries in general. This is especially true of younger generations who increasingly use platforms like Facebook, Instagram or Snapchat for their search needs. Firms with different business models can and do compete within the same market.
Research suggests that product comparison shopping is affected mainly by the frequency of internet usage, perceived usefulness, and ease of use. The Commission has not provided a forward-looking market definition nor did it prove that Google might be dominant on such a market (as opposed to more narrowly defined one). The Commission’s argument concerning dominance on the search engine and the related advantage would only work if the consumers would access a more significant share of competitors’ services either in the total absence of Google Shopping or in it being “downgraded” in ranking or placed alongside others. But, evidence suggests that consumers access comparison shopping sites largely directly and not trough Google simply because it is easier and more useful to do so. Google’s withdrawal from this market would have no effect on traffic that these other sites get.
In summary, it seems that the Commission’s approach is based on a specific and narrow market definition. Users do not seem to engage in comparative shopping of the kind Commission believes them to. An average shopper accessing Google is well aware of alternatives and uses them anyway. To say that there is no single market for online search today borders on banality and yet the Commission seems to read too much into the fact that 90% of users in the EU use Google. Further to that, the Commission believes that Google should treat own products and those of competitors equally, by no means a foregone conclusion.
The Commission’s decision is important for several reasons. While Vestager DG COMP may very well have learned the lessons from the political fallout from Almunia’s attempt to strike a deal, the importance of threading carefully cannot be overestimated. Almunia’s attempt to compromise reflects the realities of modern platforms – they tend to be dominant for a short while, they are ubiquitous and they perform a public service. Heavy handed approach may backfire. The present decision may be rendered meaningless much faster than with the 2007 Microsoft case in a rapidly changing search market.
More importantly perhaps, the somewhat hasty approach may be a signal of a messy situation to follow both in further Google cases and a plethora of other high-tech issues currently pending or coming in the future. The case is likely to continue for a considerable period as it gets appealed to Court.