EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

market consequently restricting competition on this other market (which is, of course, comparison shopping market) (European Commission [online], 2017a, point 334). As indicated above, Google restricted other competitors by two interconnected means: Indexation of Google Search prioritize results of Google Shopping on the very top of the indexed results in OneBox; Other comparison-shopping services are substantially demoted in the indexation results in a way that even Google’s biggest competitor on comparison shopping market appears on average on page four of the results (Antitrust European Commission [online], 2017). The Commission ultimately closed its investigation with the conclusion that the described anticompetitive conduct of Google had harmed both other comparison shopping services by disadvantaging them on the relevant market and also the consumers by “depriving them of genuine choice and innovation” (Antitrust European Commission [online], 2017). However, Google refused to accept the findings of the Commission’s investigation and therefore filed an action against Commission on 13 October 2017. The General court, however, upheld the decision of the Commission by its decision T-612/17 from 10 November 2021 (General Court, 2021). One of the General Court’s foremost reasons was that there is a difference between the “refusal to supply” and “difference in treatment”. According to General Court, the “refusal to supply” assumes unilateral active action from the competitors consisting of explicit refusal to gain access upon the request of the other competitor (Katsifis [online], 2021) the General Court argued that Google’s conduct consisted mainly of internal discrimination on the general search service by leveraging other markets thanks to Google’s dominant position on the general search market (General Court, 2021, para. 237). Moreover, the current case is based on the active conduct of Google preferencing its own comparison-shopping search service and thus establishing the difference in treatment (General Court, 2021, paras. 248-249). Therefore, the General Court concluded that the Bronner criteria (These criteria basically sets criteria on when is “self-preferencing” prohibited. The criteria in Bronner are rather strict) cannot be applied in the current case (General Court, 2021, paras. 248-249), leaving Google with little to no hope for any positive outcome. This conclusion of the General Court however means that the explicit refusal of access by the dominant competitor to other competitors can be more convenient than actually let them access the facilities but on less favorable terms (Katsifis [online], 2021). As for the anticompetitive conduct itself, the General Court stated that the role of the Commission within the investigation is to prove that the investigated conduct is simple “ capable of restricting competition” (General Court, 2021,

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