With its judgment of 10th November 2021, Europe’s General Court did not just dismiss Google’s appeal against the European Commission’s Google Search (Shopping) decision, uphold the fine, tell gatekeepers “don’t be evil,” and remind everyone that Europe ensures equal opportunities. The Court also rectified all of Google’s misrepresentations of the challenged Commission decision. By doing so, the judgment deprives the mechanisms that Google chose to implement the remedy imposed by the Commission of its conceptual foundation. Google will need to change the way it treats competing specialised search services fundamentally. Based upon previous works published by the author,[1] including in this Bulletin,[2] this article summarises how the judgment withdraws the basis of the mechanism chosen by Google to comply, and what the required equal access to Google’s results pages presupposes.

I. Google’s current Compliance Mechanism.

The 2020 European Commission Google Search (Shopping) Decision[3] (“Commission Decision”) had found Google to favour its own comparison shopping service (“CSS”) within the general search results pages of its flagship search engine, and imposed a ‘cease-and-desist’ order. Google was given 90 days to “bring effectively to an end the infringement” and refrain from repeating any equivalent act or any act “having the same or equivalent object or effect.”[4] The Commission left it to Google to choose between the various technical ways in which the search engine could cease the infringement by treating specialised search services equally. Any such measure should, however, “ensure that Google treats competing shopping services no less favourably than its own comparison shopping service within its general results pages.”[5]

To understand why the General Court’s judgment now withdraws any basis for the method that Google ended up choosing to implement the remedy (“Compliance Mechanism”), we only need to look at Google’s premise for its current mechanism.

A. Google’s premise for the Compliance Mechanism: remedy is about “equal access to Shopping Units”

Google’s Compliance Mechanism rests upon the premise that the remedy imposed is about a denial of access to Shopping Units, a box with a group of specialised product results displayed within Google’s general results pages. Google explained this premise to the Court as follows:

when Google shows a Shopping Unit, Google must give aggregators the same access to the Shopping Unit as it gives the Google CSS, using the same mechanisms (processes and methods) to allocate access.”[6] (emphasis added)

This premise regarding the remedy, in turn, rested upon Google’s particular interpretation of the abuse identified in the Commission Decision. Google argued before the Court that the abuse consisted in the fact that Google favoured its standalone comparison website, called “Google Shopping,” by displaying and positioning groupings of specialised search results, first referred to as “Product Universals” and later “Shopping Units,” within general search results pages because they included links to the standalone Google Shopping website. Hence, Google saw the abuse in that “the display of Shopping Units is a means of favouring the Google Shopping 'website.'”[7] This standalone website, Google argued, was its entire CSS and Shopping Units, not a part thereof.

B. Google’s Compliance Mechanism

Based upon its reading of the abuse and corresponding remedy, Google argued that so long as it grants competing CSSs equal access to Shopping Units, the preferential positioning and display of such units no longer constituted a means for favouring the standalone Google Shopping website (as Google’s CSS) and hence the abuse would have ceased.

The remedy chosen by Google is therefore framed as an ‘access remedy’ in that, through the auction mechanism, Google is giving rival comparison shopping services access to the Shopping Unit.”[8] (emphasis added)

Summarising its approach, Google argued that because the Decision:

“raised a concern about access – as between Google Shopping and rival (CSS) – to an attractive design on Google’s results pages known as 'Shopping Units,' if CSSs have equal access to Shopping Units, the alleged unequal treatment found in the Decision falls away.[9] (emphasis added)

To enable such access Google then allowed competing CSSs to (i) upload product offer feeds[10] of their merchant customers to Google’s product index alongside merchants who uploaded such feeds directly or via Google Shopping, and to (ii) bid on the product offers from the feed, so that Google, in case it chooses to display a Shopping Unit in return to a particular search query, may include such product offers at any place within such Shopping Unit, combined with any other offers and content from its own product index that Google finds suitable based upon its own product search algorithms.

Google has applied very similar mechanisms to several other specialised search services as well. So now providers of hotel and  local or vacation rental search services, for example, “may” upload their inventory to a Google-owned product index so that Google can use its own specialised search algorithms to fill any similar groupings of specialised results (referred to as a “Commercial Unit”) Google intends to display in return of any search query whenever it concludes that the Unit and products it selects to fill it are relevant for a search query.

II. Protest of the internet economy against Google’s Compliance Mechanism.

Due to Google’s narrow interpretation of the Commission Decision, neither competing CSSs nor competitors on other markets for specialised search services have noticed any improvement following the Shopping Decision. Not least in reaction to Google’s (and the Commission’s) inactivity, companies and associations from various specialised industries have raised their voices to express that Google’s measures have made no difference. This peaked in a joint letter dated 12 November 2020 and signed by nearly 170 tech companies, media, and internet associations supporting comparison shopping services in their “call upon the Commission to enforce its 2017 abuse of dominance decision by finally putting an end to Google’s continuing practice of favouring its own specialised search service within general search results pages.” The letter reminded the Commission that “there is now global consensus that Google gained unjustified advantages through preferentially treating its own services within its general search results pages by displaying various forms of grouped specialised search results (so-called “OneBoxes”).[11]

III. Findings of the General Court invalidating Google’s Compliance Mechanism.

The General Court’s 10th November 2021 judgment did not just dismiss Google’s appeal from the Commission Decision. It took the opportunity to rectify misunderstandings to address the issue of OneBoxes head-on. The Court’s overall approach, its clarifications, consistent wording, and conclusions drawn, all lead to the same result: the Court withdrew any foundation for Google’s current Compliance Mechanism. The same is true for any equivalent OneBoxes that are based upon a similar mechanism that renders competitors into customers.

A. Google now needs to grant “equal access to general results pages,” not just to parts thereof

To start with, the Court clarified the issue of the case. The Commission focused on the favouring of a Google service within general search results pages. Google, in turn, argued that the case concerns access to Google’s “own specialised results (Product Universals and Shopping Units).”[12] The Court combined both narratives into a more nuanced narrative that is about “access to Google’s general search results page”:

[C]ontrary to the Commission’s contention, what is at issue in the present case are the conditions of the supply by Google of its general search service by means of access to general results pages for competing comparison shopping services, such access being [..] presented as ‘important’ for generating traffic on comparison shopping services’ websites and therefore ultimately revenue and [..] ‘not effectively replaceable.’”[13] (emphasis added)

Or shorter:

what is at issue in the present case, albeit only indirectly, are the conditions of Google’s supply of its general search service thorough access by comparison shopping services to the general results pages.”[14] (emphasis added)

 

As is apparent from the judgment, the Court did not contradict the Commission with respect to this point in order to question or weaken its case, but to strengthen it. The question of whether this case concerns any favouring or any access was immaterial to the legal test to be applied. The judgment clarifies that the strict Bronner[15] criteria are not applicable, irrespective of whether the applicable conduct falls under the label of “access.” That is because, in any event, the conduct does not concern a refusal to grant any access but the conditions for such access, for which, at the latest since the Slovak Telecom judgment of March 2021,[16] Bronner plays no role.[17] While referring to “access” did not alter the legal standard, it allowed the Court to spell out more clearly what is at stake and what matters.

In particular, the  Court’s decision  helped to clarify the actual “access object” to which particular “access seekers” wish to gain non-discriminatory access, and to distinguish the access object from Google’s own “service” and the “tool” used to favour this service within the access object:

  • The “access object” to which non-discriminatory access is sought is the entire general search results page as an “essential facility.”
  • The “access seekers” wishing to be displayed on such pages are the providers of specialised search “services,” in this case rival CSSs as well as Google’s CSS (which provides results on a specialised page and through boxes integrated on own or third-party pages, such as Shopping Units).
  • The “tools” to discriminate between the access seekers are either exclusivity (= displaying only boxes compiled by own CSS while demoting rival CSSs in generic results)[18] or prominently displayed links (leading to a Google standalone comparison website), i.e., boxes and links that Google may display within its general results pages and that both favour its CSS.

This is an important distinction as it defines what Google is actually accused of and, correspondingly, what the prohibition decision requires Google to cease.

The Court started by declaring that:

Google is accused of failing to make a similar type of positioning and display available to competing comparison shopping services as is available to its own comparison service, and therefore of failing to ensure equal treatment of its own comparison service and the services of its competitors.”[19]

This means: If, within Google’s general search results pages (= access object), Google makes certain interfaces, such as boxes, available for the provision or display (= tool) of its own CSS (= the service), it should equally make such interfaces available to competing CSSs.

This follows from the Court’s further reasonings:

The infrastructure at issue, [is] namely Google’s general results pages.”[20] Such pages consist of “all types of results.”[21]

Moreover:

Google’s general search results page has characteristics akin to those of an essential facility.”[22]

This qualification of the access object (general search pages) as “essential” infrastructure allowed the Court to be more precise in defining what constitutes the abuse. First, because competing CSSs have always had some form of access to such sites (by means of generic results or paid Google Ads), the case could not concern a refusal to grant such access. Second, because the general search page consists of all types of results and interfaces, equal treatment also meant that every competing CSS needed an equal opportunity to serve boxes with specialised search results, if Google decided to display those within general results pages.

As a result, and this may well be one of the most important clarifications in the Court’s judgment, the Court stressed:

“The contested decision thus envisages equal access by Google’s [CSS] and competing [CSSs] to Google’s general results pages, irrespective of the type of result concerned (generic results, Product Universals or Shopping Units), and does therefore seek to provide competing [CSSs] with access to Google’s general results pages and ensure that their positioning and display within those pages are as visible as those of Google’s [CSS], even if it does not rule out the possibility that, in order to implement the remedy required by the Commission, Google will cease to display and position its own [CSS] more favourably than competing [CSSs] on its general results pages.”[23] (emphasis added)

Note the clear distinction between “Google’s general results pages” (= access object), “comparison shopping services” (= access seekers), “Product Universals or Shopping Units” (= sub-category of the results page used as a service for comparing products) and the “positioning and display” (= tool to discriminate between access seekers within the access object). This distinction is consistently drawn, for instance, in recital 369:

[t]he conduct of Google that is challenged in the contested decision consists in the combination of two practices: first, having displayed its comparison shopping service on its general results pages in a prominent and eye-catching manner in dedicated boxes, without that comparison service being subject to the adjustment algorithms used for general searches, and, secondly, at the same time having displayed competing comparison shopping services on those pages only in the form of general search results (blue links) that tend to be given a low ranking as a result of the application of those adjustment algorithms. It must also be pointed out that Google’s comparison shopping service, like Google’s other services, never appears as a general search result.”[24]

Note the clear distinction between a “comparison shopping service” (= access seeker) that is displayed either, as in case of Google, in prominently displayed “dedicated boxes” (= Shopping Units as the interface) or, as in case of rival CSSs, only in the form of general search results (= blue links as interface) within Google’s “general results pages” (= access object).

Compare that with Google’s (mis)representation that the Commission Decision “raised a concern about unequal access – as between Google Shopping and rival comparison shopping services (CSSs) – to an attractive design on Google’s results pages known as 'Shopping Units'.”[25] Thus, in Google’s reasoning, the Google Shopping standalone website as well as rival CSSs were the access seekers trying to get into Google’s Shopping Units as access objects, and Google’s “tool” to discriminate against them was to reserve ads in the Unit to itself. This is, of course, at odds with the Court’s recognition that competing CSSs had neither requested nor wished to be non-discriminatory granted access to Shopping Units.[26] They wanted to get rid of them (as a Google CSS within general search) or be equally entitled to display their own boxes, which is a matter of equal access to the general results page.

This binding interpretation of the Decision withdraws any basis for this reasoning and thus the entire Google Compliance Mechanism.

The Court confirmed that the “object” of the favouring abuse and the corresponding equal-treatment remedy imposed is not the Shopping Unit, as assumed by Google (see above), but the general search results page. It is that page, including all its elements, on which Google has to grant non-discriminatory access conditions. It is, in turn, entirely irrelevant which mechanisms Google implements to determine what kind and whose results appear in which way within Shopping Units. It is equally irrelevant if such mechanism has any effects and how many of the ads have now been placed there by any rival CSS. The case is not about access to Shopping Units or any other type of search results. What matters is that Shopping Units, which are fed by Google’s underlying CSS technology, compare products and prices, outside general search, and may therefore not be positioned and displayed in dedicated boxes within Google’s general search results pages unless the display of equivalent boxes is also made available to competing CSS to ensure equal treatment within Google’s general results pages.

B. Commercial Units within general results pages are not a “tool” to favour a separate website, they are the favoured specialised Google service

The clear distinction between access object (general results pages), access seeking services (CSSs), and tools for favouring (positioning and display) also allowed the Court to easily expose Google’s misrepresentation of the Commission Decision when stating that Shopping Units were merely a tool to favour a standalone website, which alone would constitute Google’s CSS:

As a preliminary point, it must be noted that Google’s arguments are based on the incorrect premise that the Commission’s complaint is that Google favours its own comparison shopping service, understood to mean the standalone website corresponding to the specialised Google Shopping page, through the more favourable display and positioning of Shopping Units.”[27] (emphasis added)

Referring to the Decision’s definition of a “comparison shopping service,”[28] which Google did not dispute, the Court instead rightly found that:

Google’s comparison shopping service has taken several forms, that is to say, a specialised page, most recently called Google Shopping, grouped product results, which evolved into the Product Universal, and product ads, which evolved into the Shopping Unit.[29] (emphasis added)

Contrary to what is suggested by Google, the conduct at issue in the present case is not confined to the more favourable treatment of the specialised Google Shopping page by the favourable positioning and display of Shopping Units [..]. At issue here is the more favourable treatment of Google’s comparison shopping service as a whole, which includes Shopping Units.”[30] (emphasis added)

Consequently, throughout the judgment the Court clearly distinguished between “Google Shopping”, defined (only) as the standalone website outside of Google’s general results page,[31] and “Shopping Units,” defined as all groups of ads from several advertisers, together with images and prices that appear on Google’s general results pages.[32] Based on this distinction the Court then explained that “Shopping Units and Google Shopping” constitute “one and the same comparison shopping service.”[33] Accordingly, whenever the judgment referred to any favouring of a Google CSS within general results pages, it meant both: the preferential positioning or display of a Shopping Units (vis-á-vis CSSs that obtain no equivalent box), and the favouring of a link leading to a Google Shopping website.

In particular, in recitals 312 and 329 to 340 the Court went to great length in clarifying that the provision of Shopping Units are not a “tool” to favour a separate service, but that they constitute a CSS itself, operated by Google:

Shopping Units display results from Google’s comparison shopping service and are in competition with competing comparison shopping services. It is, in that respect, immaterial that sellers must pay an advertising fee to place products in the Shopping Units, since, for internet users, Google’s specialised search service offers the same comparison shopping service free of charge as that of competing [CSSs]. Google does not therefore show how the comparison shopping service offered to internet users by the Shopping Units is intrinsically different from that offered by other [CSSs]. On the contrary, it appears that both are designed to compare products on the internet and that, they are substitutable from the point of view of internet users.”[34]

Note that the Court explicitly referred to Shopping Units as “Google’s specialised search service,” a service that “substitutes” competing CSSs from the relevant point of view of internet users. The design of Shopping Units and its perception by internet users has not changed. If Shopping Units constituted a CSS that substitutes other CSSs during the infringement, they still do so today, irrespective of how Google fills those boxes with content.

To underpin this point, in recitals 329 to 340 the Court explained that even those Shopping Units constitute a CSS that are not “capable of achieving a level of precision that allows different offers of the same product or model to be shown, as Google’s specialised web page did.” The Court rightly pointed out that:

[a] comparison shopping service can also show offers of several products that may match the internet user’s query, as in the case of Product Universals and Shopping Units. Everything depends both on the parameters of the [CSS] and on the precision of the internet user’s initial search query.”[35]

Here again the Court naturally referred to Shopping Units as a CSS. It clarified that Google can adjust the design (e.g., product carousel or single product box) and the content (choice of products, or merchant or additional information) of each Shopping Unit to the specificity of the search query entered. It is Google alone that provides the comparison service – not the companies that Google ultimately selects to fill its compiled boxes.

Based upon this technical consideration, the Court concluded that both:

“grouped product results, notably Product Universals, and product ads, notably Shopping Units, must be considered to form part of the comparison shopping service which Google offered to internet users.”[36]

In other words, irrespective of the number of bundled results, and whether they are unpaid or paid, as soon as they are provided to allow a user to compare products and prices of several merchants, directly within general search results pages, their provision may form a specialised search service, operating on a market separate from general search.

The only argument that Google could ever bring up[37] as to why the Commission Decision did not clearly say that providing Shopping Units forms part of a Google CSS were two recitals in the Decision, according to which “the Commission’s case is not that the Product Universal” (recital 408) or “the Shopping Universal is in itself a [CSS]” (recital 423). However, the Court also annulled this last argument:

It must be stated that certain formulations in the contested decision, such as those in recitals 408 and 423, can, viewed in isolation and at first sight, appear ambiguous. However, these formulations do not affect the Commission’s general analysis, according to which Google’s [CSS] was available in different forms. [..] In this regard, it must be noted that [..] in six EEA countries, during a certain period, 'Google Shopping existed only in the form of the Shopping Unit without an associated standalone website.'”[38]

In other words: if the isolated display of Shopping Units (without any corresponding standalone comparison site) in certain countries constituted an abuse, it is apparent that Shopping Units form a CSS.[39]

C. Clicks on Shopping Units are traffic for Google

The Court also explained that Shopping Units are based on the same databases, technology, payment, and linking system as standalone comparison sites.[40] The Court concluded that because the Shopping Units that internet users see are only the interfaces displayed at the end of a complex underlying matching mechanism:

Consequently, a click in a Shopping Unit was indeed to be regarded as a manifestation of the use of Google’s comparison shopping service from the general results page, that is to say, as traffic for that comparison shopping service from that page.”[41] (emphasis added)

Once more the Court equated the provision of a Shopping Unit with Google’s CSS. More importantly, the Court made a clear decision as to who needs to get the credit if a consumer clicks on any result in a Shopping Unit: the company compiling the Unit (Google), not the companies having provided the product offering clicked at within the Unit (merchants or rival CSSs). The Court was right to find that because it is Google alone that matches the query with a suitable Shopping Unit, containing suitable results, a click on any such result is a “manifestation” of Google’s CSS. Therefore, both the Commission and the Court have regarded such clicks as being attributable to Google’s CSS.

This, in turn, invalidates the philosophy followed by the Commission thus far in measuring any impact of the Compliance Mechanism. Even two days after the judgment the Commission indicated a certain contentment with the Compliance Mechanism because by now around 75% of the products displayed within Shopping Units “come from merchants that work with rivals of Google.”[42] Yet, at least for three reasons these figures are irrelevant to the question of Google’s compliance with the Decision.

First and foremost, the remedy does not oblige Google to ensure equal treatment within Shopping Units, but within general results pages. As long as no rival CSS is entitled to provide corresponding boxes, this obligation is not implemented. For the issue of equal access to Google’s general results pages, it does not matter how Google compiles its exclusive box. Even if Google succeeded to fill up its Shopping Units with 100% product offerings that were uploaded to its index through a competing intermediary, it could never create equal treatment on the general search results page. Because the unit is still a part of Google’s CSS and “a click in a Shopping Unit [is] to be regarded as a manifestation of the use of Google’s [CSS].[43]

Second, the Commission’s calculation contradicts the attribution of value laid down by the Court. According to the Court, 100% of the clicks on a Shopping Unit are to be seen as clicks for Google, irrespective of who served the product offerings within. If anything, the high figure confirms the strong anti-competitive effect of the Compliance Mechanism. It demonstrates that the mechanism serves Google as an acquisition tool that brings more merchants, more inventory, and more advertising budgets to Google’s CSS, where those merchants can then outbid each other to pay the highest price for the ´privilege` to be selected by Google for a box. Every single click on the Shopping Unit, no matter who uploaded the feed, triggers a payment to Google. For the same reason, Google’s argument that by now more than 700 companies participate in the Compliance Mechanism[44] is beside the point. Most of them are “fake CSSs” that have been set up by ad intermediaries or merchants that Google awarded with a discount if they participated in the Compliance Mechanism.[45] In any case, the number of participants says nothing. Thus far no CSSs have succeeded to gain any market share through the mechanism.[46] This is only logical: as the boxes lead users directly to merchants, no traffic goes to the participants’ websites, which is “the most important asset of a specialised search engine.”[47]

Third, only allowing rival CSSs to place bids on behalf of their merchant customers for product ads to be included in Google’s Shopping Units is also inconsistent with another central finding by the Court: that such an alternative turns competitors into customers.

D. The Compliance Mechanism forces rivals “to stop being a competitor”

In recitals 319 and 347 to 353 the Court clarified that a feed-based mechanism for the inclusion and display of rival CSSs within Shopping Units does not create equal treatment because it turns rivals into Google customers.

Since around 2014, Google had ´allowed` rival CSSs to upload product feeds to Google’s product index on behalf of their merchant customers, so that such products may be displayed in Google’s Shopping Units. Because of this option, Google argued that it had already granted rival CSSs access to its Shopping Units and, therefore, that equal treatment was ensured. The Court dismissed this argument, finding that:

competing [CSSs] were not, as such, eligible to appear in the Shopping Units. [T]hey can be included only if they change their business model by adding a 'buy' button or if they act as intermediaries to submit products to Google on behalf of online sellers. Yet, as BDZV points out, these options fundamentally change the business model of a [CSS].”[48]

In other words, “competing [CSSs] are not eligible for the same display criteria as Google’s [CSS] – even by paying – to appear in Shopping Units, unless they change their business model.”[49] That is because:

the alternative offered to competing [CSS] in order for them to appear in Shopping Units, namely to act as intermediaries, also requires them to change their business model in that their role then involves placing products on Google’s comparison shopping service [= Shopping Units] as a seller would do, and no longer to compare products. Accordingly, in order to access Shopping Units, competing [CSSs] would have to become customers of Google’s comparison shopping service [= Shopping Units] and stop being its direct competitors.”[50] (emphasis added)

While Google does indeed [..] allow retailers to send it feeds containing an inventory of their products, in order to be eligible for this, [CSSs] must change their business model.”[51]

The Court concluded that:

“the arguments put forward by Google [..], according to which competing [CSSs] were already included in the Shopping Units and therefore there could not have been any favouring, must be rejected.”[52]

The Commission had largely presupposed such interrelations. They are only briefly mentioned in two recitals of the Commission Decision.[53] However, the Court considered this distinction between being a competitor and mere customer of a Google service so crucial for the case that it included it in its two-page press release:

 “While Google did subsequently enable competing [CSS] to enhance the quality of the display of their results by appearing in its ‘boxes’ in return for payment, the General Court notes that that service depended on the [CSS] changing their business model and ceasing to be Google’s direct competitors, becoming its customers instead.”[54]

This point is crucial because as Google itself had explained to the Court, the current Compliance Mechanism works “in exactly the same way”[55] as the late Shopping Units that Google introduced in 2014 and which the Court condemned as being anti-competitive. The only changes, “By CSS” and “view more” links, account for less than 1% of the clicks in the Shopping Units and are therefore immaterial.[56] In other words, Google’s current Compliance Mechanism is based upon the very same mechanisms as the one that the Court found to force competing CSSs “to stop being [Google’s] competitors.” Thus, irrespective of Google’s false focus on equal access to Shopping Units (rather than equal access to the broader general results page), Google’s claim that the abuse has ceased because competing CSSs are now included in Shopping Units, can only be rejected.

IV. Which options for compliance are left?

The Commission’s Decision and the General Court’s leave Google two options to remedy the abuse: Google may either provide competing CSSs with equivalent boxes or alternative groupings of specialised search results that they can compile independently, based upon their own indices and algorithms, or cease displaying its own CSS, i.e., stop displaying Shopping Units. Google has argued that no third alternative exists. In Turkey, following a  2020 competition decision that adopted a largely similar approach as the Commission Decision,[57] Google already ceased displaying Shopping Units.[58] In any event, “the possibility that, in order to implement the remedy required by the Commission, Google will cease to display and position its own [CSS] more favourably than competing [CSSs] on its general results pages”,[59] was no reason for the Court to dismiss the  Commission Decision. Nobody has obliged Google to introduce boxes that favour its own specialised search service and foreclose competition. Thus, in turn, Google can now hardly blame the Commission for putting an end to it.

V. Implications for the regulation of general search and other gatekeeper services.

The General Court’s findings, in particular its reference to Google's particular responsibility as an “ultra-dominant” “gateway to the internet,” as well as the comparison to net neutrality regulation,[60] should also have far-reaching consequences for the envisaged regulation of Google and other digital gatekeepers around the globe. Equalising Google’s general search results pages with an essential infrastructure that should be open and needs to grant equal access backs up all calls for a tough regulatory stance against any favouring practices by a gatekeeper. Regarding the European proposal for a Digital Markets Act, in particular, the General Court’s judgment provides input for the fine-tuning of several envisaged obligations. For instance, the judgment’s focus on the entire general search results page strongly suggests that any regulatory prohibition to treat own services more favourably[61] must encompass any type of Google’s search result,[62] and even navigation links in the menu links (tabs) on general search results pages,[63] irrespective of whether they are displayed prior or after the entry of a search query.[64] Equally, the judgment’s focus on equal access to Google’s general results pages strongly suggests that the obligation to apply fair and non-discriminatory general conditions of access for business users may not be limited to app stores,[65] but must encompass, at the very least, also search engines.[66] In any event, such legislative initiatives indicate that any appeal against the judgment would not save Google from having to fundamentally change the way it treats competing services within its general results pages.

VI. Conclusions and consequences.

The General Court has made several findings that deprive Google’s current Compliance Mechanism of its conceptual foundation.

  • Google needs to grant equal access to the general search results page, not any equal treatment within a grouping of results powered by its specialised search service. Equal treatment within Shopping Units is far less than equal treatment within the entire search results page.
  • Google’s provision of specialised product ads via Shopping Units constitutes an independent CSS. To display such units without allowing competing CSSs to compile and display equivalent boxes based on their indexes and algorithms therefore constitutes an abuse of dominance.
  • The opportunity for rival CSSs to buy ads in the Shopping Units powered by Google’s CSS is no viable alternative in any event as it forces rivals to become customers of Google’ CSS and to thereby stop competing with its service.

In light of all these findings, Google’s current Compliance Mechanism can under no legal consideration comply with the remedy imposed in the Commission Decision. Google will have to change the design of general search pages fundamentally--immediately. The Commission in turn is obliged to enforce its Decision and to ensure compliance with Article 102 TFEU in all affected sectors. The proceedings originally covered “the unfavourable treatment“ of all “competing vertical search providers” in Google’s search results.[67] In 2014 the Commission decided to concentrate on the comparison shopping sector first, to set a legal framework that then applies to all affected markets. Following this logic, the natural, if not inevitable next step for the Commission would be to enforce this shopping precedent now in a way that serves all affected markets. Thus, the Commission needs to initiate formal non-compliance proceedings and recover the periodic penalty fixed in its Decision for non-compliance.[68]  As of 15th November 2021, such penalty amounts up to US $37.727.233.742,17 - rising daily by $25 million.[69] A failure to enforce the remedy and recover the penalty could give rise to actions against the Commission itself, in particular under Article 265 TFEU.