EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

apps, in particular where these are not essential for running the hardware”. This provision is linked with cases Google Android and Microsoft (Tying) . The Microsoft (Tying) case is rather specific, because the fine was imposed for infringement of commitments made binding by the previous Commission Decision. In the Google Android case, Google was found guilty of four separate infringements. Google’s behaviour was found as helping to “maintain and strengthen its dominant position in each national market for general search services, increas[ing] barriers to entry, deter[ring] innovation and tend[ing] to harm, directly or indirectly, consumers” ( Google Android , 2018, AT.40099, paras. 858, 971, 1139, 1142). Article 6(1)(d) of the DMA contains an obligation to “refrain from treating more favourably in ranking services and products offered by the gatekeeper itself or by any third party belonging to the same undertaking compared to similar services or products of third party and apply fair and non-discriminatory conditions to such ranking.” According to Recital 48 and 49 of the preamble of the DMA, Article 6(1)(d) of the DMA shall inter alia deal with situations where the gatekeepers favours its own service that is considered distinct from its core platform service by the end users by means of “all forms of relative prominence”. This leads to the direct undermining of contestability of the relevant digital market. In the Impact Assessment Report (European Commission, 2020, p. 57), the following example of this practice is given: a search engine preferring its own vertically integrated services in its search engine results (e.g., shopping or travel services are featured on top of search results); a social network ranking its own dating service more prominently in users’ timelines than those of third-party dating services. Ability to misuse its intermediation position to its own competitive advantage. This provision is linked with the Google Search (Shopping) case. The ultimate breach of a protected legal interest by Google in this case was depriving European customers of genuine choice and innovation by restricting competition on the relevant markets for comparison shopping (European Commission, 2017). 3.2.2 Second step: Comparing protected legal interests The objective of ensuring contestable and competitive digital markets for increased innovation and consumer choice is the protected legal interest under both Article 102 TFEU and Articles 6(1)(b) and 6(1)(d) of the DMA. As is apparent from the Commission’s rulings in Google Android and Google Search (Shopping) cases, conducted in the existing competition law regime, the consumer well-being

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