EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

market was defined as the general search market (European Commission [online], 2017b). However, while indexing the results on Google Search, on the top of the indexation is the so called “OneBox” that lists the results of the indexations from the vertical search service – Google Shopping. At the same time, other vertical search service providers were placed below the results from OneBox and moreover their indexation on further search results seemed purposeful in order to disadvantage them on the comparison search market (Ellia, 2017, p. 472). By doing this Google was supposed to be using its dominant position in general search market in an anticompetitive way by leveraging the comparison-shopping market (Reyna, 2017, p. 250). After seven long years of investigations, two European Commission’s Statement of Objections (2015, 2016) and several unsuccessful attempts to come to an agreement between EC and Google, on 27 June 2017 EC adopted its final decision on this matter (European Commission [online], 2017a). Google was not successful with its defense based on the claim that the aforementioned behavior is competition on the merits (According to the report of Organization for Economic Co-Operation and Development, the competition on the merits means that “dominant enterprise” can lawfully engage in conduct that falls within the are circumscribed by that phrase, even if the consequence of that conduct is that rivals are forced to exit the market, or their entry or expansion is discouraged (OECD, 2006). More on the competition on the merits and when its implications also CJEU Decision from 27 March 2012, C-209/10 Post Danmark A/S v. Konkurrenceradet, with intervener Forbuger-Kontakt a-s , para. 25 and further.), neither with the attempt to point out that Amazon and eBay should be considered as competitors operating within the comparison-shopping market (Ellia, 2017, p. 472). The most significant difference is, according to Commission that the so-called merchant platforms such as eBay and Amazon do not offer simple comparison of prices and various products without the intention to buy such products exclusively on their website. By the means of this definition, the merchant platforms are most likely eligible to be indexed in the search results unlike the rival comparison shopping services. The dominance of Google on the general search market was reasoned by the Commission by pointing out that Google has a 90% share in each of the countries in EEA and thus creating barrier for other competitors to entry this market. This barrier exists, according to the Commission, simply because “the more consumers use a search engine, the more attractive it becomes to advertisers” (European Commission [online], 2017a, point 159). Because of Google’s dominant position on the general search market, it has a “special responsibility” (European Commission [online], 2017a, point 331). However, Google has abused its dominance on the general search market and therefore breached the special responsibility it has by leveraging into other

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