Antitrust

S H E A R M A N & S T E R L I N G L L P | 7 Most recently, in March 2019, Google was fined €1.49 billion by the EC for its alleged abuse of its dominant position in the online search intermediation market through its AdSense for Search service. The EC found that, by imposing restrictive clauses in its contracts with third-party websites, Google had prevented its rivals from placing their own advertisements on those websites. From 2006, Google had imposed an exclusive supply obligation, preventing third-party websites from placing search advertisements from competitors on their search results pages entirely. From March 2009, Google had moved to a "relaxed exclusivity" position and began replacing exclusivity clauses with premium placement clauses, requiring publishers to reserve the most profitable space on their search results pages for Google's adverts and request a minimum number of Google adverts. It also included clauses requiring publishers to seek written approval from Google before marking changes to the way rival adverts were displayed. Unlike the Google Android and Google Shopping cases, the AdSense case is not expected to lead to compliance issues; the EC found that the infringement had ended in 2016. In April 2019, Google confirmed its intention to appeal the decision. Commentators have queried whether these large fines imposed by the EC and the accompanying remedies are an effective way to regulate Google's behavior. Share prices of Google's parent company Alphabet dropped a mere 0.3% on news of the €4.34 billion fine in the Google Android case, and Alphabet had more than US$100 billion in cash, cash equivalents, and marketable securities to absorb it. In addition, analysts anticipated minimal impact on the business resulting from the remedies offered in the Android case, upon determining that consumers are likely to simply download the apps for Google's services when they get new Android phones, much as they do with Apple iPhones. Commentators have also noted that, in such a rapidly moving market, the latest EC fine comes late in the day as it sanctions conduct that attracted complaints as early as 2011, and critics say Google is now entrenched. More broadly, the EC has recently published a report entitled "Competition policy for the digital era" prepared by three external special advisers, appointed by Commissioner Vestager. The advisers were asked to explore "how competition policy should evolve to continue to promote pro-consumer innovation in the digital age." The report makes a number of recommendations, including proposing new or updated theories of harm relating to the conduct of dominant platforms and discussing the role of data interoperability. It remains to be seen what impact this report will have on the EC's decisional practice in this area. 'BIG DATA' In addition to enforcement pursuant to the more traditional European competition law theories as in the Google cases, competition authorities in Europe are also grappling with the concept of 'big data' — in particular, the antitrust implications of companies collecting and using data on a massive scale. I N S U C H A R A P I D LY M O V I N G M A R K E T, T H E L A T E S T E C F I N E C O M E S L A T E I N T H E D A Y A S I T S A N C T I O N S C O N D U C T T H A T A T T R A C T E D C O M P L A I N T S A S E A R LY A S 2 0 1 1 CONTINUED >

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