The Spanish Competition authority (“CNMC”) has agreed to put an end to the infringement proceedings brought against Google and El Tenedor in November 2018 for an alleged conduct related to Google’s search engine and Google Maps’ online restaurant reservation system prohibited by Articles 1 and 2 of the Spanish Competition Act.

The CNMC has refused to impose fines on these two companies since no anticompetitive behaviour has been proven to be committed.

1. Background of the conflict

When a user wants to make a reservation in a specific restaurant, Google offers the “Reserve with Google” functionality, which allows consumers to make such reservations directly from the restaurant’s tab displayed in the search results on Google Search or Google Maps. It is implemented through a reservation “button” embedded in the restaurant tab, whose appearance is highlighted and provides a greater agility in the reservation process.

El Tenedor provides restaurants with a reservation system through its web page and mobile app. This system can be integrated into certain partner sites, such as social networks (e.g. Facebook, Instagram), TripAdvisor, and more recently into Google through the mentioned service “Reserve with Google” provided by the US company.

In November 2018, Google and La Fourchette (i.e. the parent company of El Tenedor and member of the TripAdvisor group) announced a partnership allowing consumers to book restaurants directly online without leaving Google’s search engine or Google Maps. The partnership covered several European countries and was aimed at integrating a reservation “button” for tables offered by El Tenedor in the search engine.

In this regard, it should be noted that Google has similar agreements with other online restaurant reservation platforms to offer different restaurants in its search engine.

Shortly after the announcement of this partnership, a restaurant located in Alicante filed a complaint before the CNMC against Google and El Tenedor, arguing that Google was prioritizing El Tenedor’s reservation system in Google Maps over its own. According to the restaurant, this discrimination could be either the result of an alleged anticompetitive agreement between the two companies, or the consequence of an abuse of a dominant position by El Tenedor, whose purpose would be the imposition of unfair commercial conditions.

2. CNMC’s decision closing the investigation

However, according to the CNMC’s decision published last month, Google’s treatment of El Tenedor and the restaurant concerned does not constitute discrimination. Indeed, there is no indication that the links to the business’ tabs that appear in the search results are displayed in a discriminatory manner. Therefore, the CNMC concluded that Google is not favouring El Tenedor’s reservation system over the one of the complainant.

With respect to the alleged abuse of a dominant position by El Tenedor, the CNMC has assessed a clause contained in the commercial contracts agreed with the restaurants authorizing it to apply disadvantageous billing conditions to those restaurants that do not wish to register in partner sites. In this regard, the CNMC declared that there was no proof of an abusive conduct engaged in by El Tenedor, since the conflictive clause had never been enforced.

3. Tech companies in the spotlight

This case represents the last example of investigations involving large technology companies that have been ended without imposing any sanctions by the CNMC.

Indeed, Google itself, in 2011 and 2012 was investigated for a possible abuse of dominance in Spain relating to the refusal to supply online advertising services with Google AdWords. Also, in 2012, Amazon was subject to an antitrust investigation in connection with its DVD movie distribution policy. Lastly, Apple and Microsoft were also targeted by the CNMC in the past, but none of these companies suffered any consequences.

It appears that the CNMC is not joining for the moment the trend followed by other European competition authorities to target large tech companies. Nevertheless, it would be interesting to see whether the stricter approach adopted by the European Commission in relation to ongoing investigations against, for instance, Amazon or Apple, can influence the future enforcement of antitrust rules by the CNMC for high-tech companies in Spain.