EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

para. 439). Moreover, the Commission is not required to “to identify actual exclusionary effects” (General Court, 2021, para. 442). Finally, the Commission is not even obliged to “demonstrate that possible consequences of the elimination or restriction of competition actually manifested themselves” (General Court, 2021, para. 443), it suffices that the investigated conduct “is highly likely to have such consequences” (Ibidem). Ultimately, the General Court concludes that by preferring its own comparison shopping services within the results in general search, Google actually infringed Article 102 TFEU but only on the market for specialized search services. However, the General Court disagreed with the Commission on the findings that the infringement of Article 102 took place as well on the general search market (General Court, 2021, para. 703) . 3.2 Google AdSense Following the case in 2010, The European Commission has decided to investigate Google’s alleged antitrust behaviour once again, this time tackling unfair practices in online advertising (European Commission [online], 2019c). Google was accused of maintaining its dominant market position through imposing anti-competitive restrictions on third party websites. The infringement lasted for over 10 years, denying companies the possibility of fair market competition (European Commission [online], 2019a, paras. 2–5). In the years 2006-2016, Google held the most power (above 70%) in online search advertising intermediation market (Ibidem, para. 719), which constituted Google’s dominant position alongside with the substantial investments necessary for entering the market (Ibidem, paras. 150–151), overwhelming effects of the strong network (such as Google’s) (Ibidem, para 203) (by network effects it is meant that Google had strong position in most of the members states thus creating interlinked and cooperative network which is very challenging to compete with.), and the inability of the advertisers to compete with advertising intermediary giants such as Google – i.e., “the lack of countervailing buyer power” (Ibidem, para 273). For the first time in 2006, Google included contract exclusivity clauses, requiring the publishers “to source all or most of their advertising requirements from Google” (Ibidem, para. 4). Google gradually added clauses such as “Premium-placement clauses Minimum Google Ads Clause” in 2009 and later the “Authorising Equivalent Ads Clause” (European Commission [online], 2019b). Premium placement clauses limited Google competitors’ search adverts from the most visible and clicked spots in search result pages, hence demanding that publishers reserve the most profitable space on their search result pages for Google’s adverts. Additionally, another clause required publishers to seek Google’s written approval before making changes in the display of a rival

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