EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

The DMA also requires the gatekeepers to provide any third party online search engine providers with “access on fair, reasonable and non-discriminatory terms to ranking, query, click and view data in relation to free and paid search generated by end users on online search engines of the gatekeeper (…)” (European Commission [online], 2020a, Article 6 § 1(d). This particularly means that Google would be prohibited from prioritizing its own shopping comparison services before other providers without any assessment whether such behavior actually distorts the competition or whether such conduct could be hypothetically assessed as e.g., competition on merits. By the same token, Google is obliged to, upon their request, provide the other search engine providers, meaning competitors of Google, with relevant information on how the end consumers interact with their services, hence with the information that is necessary for the service providers to efficiently innovate their search engines. As for the AdSense case, the DMA regulates all of the types of behavior that the Commission has found to be against the competition. First of all, the DMA requires the gatekeepers to “allow business users to offer the same products or services to end users through third party online intermediation services at prices or conditions that are different from those offered through the online intermediation services of the gatekeeper” (European Commission [online], 2020a, Article 5 § 1(b), or the so called “Most Favoured Nation clause” (Sylwan, 2021, p. 58). Furthermore, Google shall “provide advertisers and publishers to which it supplies advertising services, upon their request, with information concerning the price paid by the advertiser and publisher, as well as the amount or remuneration paid to the publisher, for the publishing of a given ad and each of the relevant advertising services provided by the gatekeeper” (European Commission [online], 2020a). These obligations basically exclude any implementation whatsoever of clauses with a similar or identical nature as already described in the Exclusivity Clause and Premium Placement and Minimum Google Ads Clause. Furthermore, according to the DMA, Google shall allow the business users to use other services without prior consent of Google (European Commission [online], 2020a, Article 6 § 1(c), (e), and (g).). As for the Google advertising case, little is still known to assess whether the DMA effectively prevents such a behaviour, however, it can be certainly said that the DMA contains various obligations that are focused on the advertising market, such as already mentioned prohibition of prioritization (European Commission [online], 2020a, Article 5(b), (c), (e), and (f ); Article 6 § 1(d)), mandatory information provision upon the request of other competitors (European Commission [online], 2020a, Article 6 § 1(g)), and obligation of effective portability of data generated through the activity of a business user of end user (European Commission [online], 2020a, Article 6(h)). All the above

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