On 25 April 2013, the Commission issued a press release announcing that it had begun market testing commitments offered by Google in relation to online search and search advertising. In its press release, the Commission stated that it continues to have concerns that Google may be abusing its dominant position in the markets for web search, online search advertising and online search advertising intermediation in the European Economic Area.

The Commission's concerns appear unchanged from previous statements it has made (see, e.g., VBB on Competition Law, Volume 2012, No. 5, available at www.vbb.com). First, the Commission has expressed concerns about the favourable treatment, within Google's web search results, of links to Google's own specialised web search services as compared to links to competing specialised web search services (i.e., services allowing users to search for specific categories of information such as restaurants, hotels or products). Second, the Commission has expressed concerns about the use by Google without consent of original content from third party web sites in its own specialised web search services. Third, the Commission has expressed concerns about agreements that oblige third party web sites to obtain all or most of their online search advertisements from Google. Fourth, the Commission has expressed concerns about contractual restrictions imposed by Google on the transferability of online search advertising campaigns to rival search advertising platforms and the management of such campaigns across Google's Adwords and rival search advertising platforms.

To address these concerns, Google has offered for a five-year period to:

(i) - label promoted links to its own specialised search services so that users can distinguish them from natural web search results,

- clearly separate these promoted links from other web search results by clear graphical features (such as a frame), and

- display links to three rival specialised search services close to its own services, in a place that is clearly visible to users,

(ii) - offer all websites the option to opt-out from the use of all their content in Google's specialised search services, while ensuring that any opt-out does not unduly affect the ranking of those web sites in Google's general web search results,

- offer all specialised search web sites that focus on product search or local search the option to mark certain categories of information in such a way that such information is not indexed or used by Google,

- provide newspaper publishers with a mechanism allowing them to control on a web page per web page basis the display of their content in Google News,

(iii) no longer include in its agreements with publishers any written or unwritten obligations that would require them to source online search advertisements exclusively from Google, and

(iv) no longer impose obligations that would prevent advertisers from managing search advertising campaigns across competing advertising platforms.

These commitments would cover the European Economic Area.

The proposals also foresee that an independent Monitoring Trustee will advise the Commission in overseeing the proper implementation of the commitments.

The long-delayed announcement demonstrates remarkable patience on the part of the Commission to allow Google to resolve these concerns without subjecting the company to a fine. It will be recalled that it has been almost a year since the Commission announced that it was giving Google "a matter of weeks" to issue a first set of commitments that addressed its concerns (see VBB on Competition Law, Volume 2012, No. 5, available at www.vbb.com). Subsequently, the Commission announced in December 2012 that it expected detailed proposals from Google in January 2013. Assuming that Google met these deadlines, it would appear that initial offers of remedies must have fallen short of the Commission's expectations, yet it does not appear that the Commission ever stepped away from its publicly announced preference of allowing Google to resolve this case with commitments.

In this respect, it is interesting to note that the Commission has included the specific question "Is Google benefitting from special treatment by the Commission?" in a list of Q&As that were published alongside its press release. In response to this question, the Commission noted that it had already taken 30 decisions making such commitments legally binding on companies, including companies active in the IT sector such as Microsoft, Apple and IBM.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.