In a provisional decision dated January 31, 2019, the French Competition Authority (hereinafter, the « FCA ») considered that Google might have adopted anti-competitive practices against Amadeus, a directory enquiry services provider.
According to the FCA, « while Google is free to define its policy on content allowed on Google Ads, in particular to protect consumers, it is important - given its pre-eminent position in the market (90% of researches carried out in France) - that the implementation of these rules be carried out under objective and transparent conditions and that they do not lead to discriminatory treatment among competing companies ».
In the case at hand, Amadeus has lodged a complaint on the merits with the FCA accusing Google of:
- suspending several of its accounts with the advertising service AdWords (now called Google Ads),
- then refusing most of the Ads it wanted to run to promote its services.
In addition to its complaint, Amadeus has requested the implementation of interim measures, which the FCA is able to order as a matter of urgency when it considers that the practices referred might infringe competition law and cause serious and immediate damage to competition or to a stakeholder in a sector.
In its interim decision, the FCA concluded that Google's practices towards Amadeus are likely to characterise an abuse of a dominant position, as Google might have committed:
- a sudden termination of commercial relations under conditions that are neither objective nor transparent. The FCA noted in this regard that Amadeus' accounts were suspended without warning or any clear mention of the alleged breaches, whereas Google's sales teams were very closely involved in the development of Amadeus' advertising campaigns as part of a special partnership, and
- a discriminatory practice since competitors of Amadeus appear to have been allowed to run Ads that were similar Amadeus’s rejected Ads.
Noting that these practices caused serious and immediate damage to Amadeus' interests (the decline in its turnover represented 90% between 2017 and 2018), the FCA issued the following interim measures, pending the decision on the merits, in order to guaranty the objective, transparent and non-discriminatory application of the Google Ads Rules:
- Google will need to clarify the rules of its Google Ads online advertising platform which apply to directory enquiry services, and
- Google will have to review Amadeus’ situation under these rules and to give it access to the Google Ads service again if its Ads comply with them.
This is not the first time the FCA pronounces interim measures. It has already granted such measures in eight cases in different sectors, including the online advertising sector. In 2010, it ordered Google to implement in an objective, transparent and non-discriminatory manner the content policy of its AdWords service for roadside radars. However, it is infrequent to see the FCA taking a decision on the ground of sudden termination of commercial relations.
It is important to be noted that when the ECN+ Directive is transposed into French law, which is currently under discussion before the French Parliament, the FCA will be allowed to impose ex officio interim measures even in the absence of a complaint by a company, whereas request for interm measures has to be currently submitted to the FCA by the parties.