European Union: European Competition Law Newsletter – May 2015

Last Updated: May 7 2015
Article by Matthew Hall

European Commission v Google; Alleged Discrimination by a Dominant Firm

On 15 April 2015, the European Commission (EC) sent a Statement of Objections (preliminary statement of case) to Google alleging the company has abused its dominant position in the markets for general internet search services in the EU. The EC has also formally opened a separate antitrust investigation into Google's conduct as regards the mobile operating system Android.

On the search side, the allegation is that Google has been systematically favouring its own comparison shopping product (Google Shopping) in its general search results pages. The case therefore essentially concerns whether a dominant firm is entitled to discriminate in favour of services it provides in a separate market.

On the Android side, the EC will assess whether Google has illegally hindered the development and market access of rival mobile operating systems and apps/services. The concern is that it has done this by requiring or incentivising smartphone and tablet manufacturers to exclusively pre-install Google's own apps/services, by preventing smartphone and tablet manufacturers from developing and marketing modified and potentially competing versions of Android (so-called "Android forks") and by tying or bundling certain Google apps/services distributed on Android devices with other Google apps/services.

While not entirely novel, the search case in particular raises difficult legal issues. In any event, competitors of dominant providers in other online or in offline industries now have more ammunition to use when those providers seek to favour their own separate services or discriminate against competitors of those services. This is arguably the case even absent any foreclosure of those rivals.

European Commission v Russia (Gazprom); Alleged Market Partitioning, Unfair Pricing and Leveraging by a Dominant Firm

On 22 April 2015, the EC sent a Statement of Objections to Gazprom alleging several abuses of its dominant market position in the EU. This is clearly a highly politicised case and one which shows that the EC is willing to take action against any potentially anti-competitive activities which have an effect in the EU, regardless of the nationality or ownership of the company involved.

The EC's preliminary view is that Gazprom is breaking EU antitrust rules by pursuing an overall strategy to partition Central and Eastern European natural gas markets, for example, by reducing its customers' ability to resell the gas cross-border. This may have enabled Gazprom to charge unfair prices in certain EU Member States. Gazprom may also have sought to leverage its dominant market into other markets.

The resale restrictions allegedly used include export bans and clauses requiring the purchased gas to be used in a specific territory (destination clauses). Gazprom has also allegedly used other measures that prevented the cross-border flow of gas, such as obliging wholesalers to obtain its agreement to export gas and refusing under certain circumstances to change the location to which the gas should be delivered. All of these types of activities are equally problematic whatever the industry concerned.

The unfair pricing and leveraging elements are also interesting and generally applicable. In relation to pricing, the concern is that Gazprom has been charging prices to wholesalers that are unfairly high compared to Gazprom's costs or to benchmark prices. In relation to leveraging, the concern is that Gazprom is making gas supplies to BulgariaandPoland conditional on obtaining unrelated commitments from wholesalers concerning gas transport infrastructure promoted by Gazprom. For example, gas supplies were made dependent on investments in a pipeline project promoted by Gazprom or on accepting Gazprom's reinforcement of its control over a pipeline.

MFN Clauses and Online Sales

The competition authorities of Sweden, Italy and France have accepted commitments offered by, Europe's largest online travel agent (OTA), concerning its use of so-called parity (or "most favoured nation") clauses in agreements with hotels. The parity clauses oblige hotels to offer the same or lower room prices as the hotel makes available on all other online and offline distribution channels. This settlement with these competition authorities provides a model for the use of similar clauses in this and other sectors EU-wide and should be carefully studied. has agreed, amongst other things, to allow hotels to offer lower room prices on other online hotel booking websites. will still be able to apply parity clauses in relation to hotels' own publicly available online room prices (but not hotels' offline or online loyalty sites).

The particular concern was that the parity clauses eliminated competition among OTAs. The intention is that the changes will put pressure on OTA commission rates and the quality of service of OTAs, leading ultimately to lower room prices and better services for consumers. The commitments are also intended to make it easier for new OTAs to enter the market, and for innovative OTAs to expand. The "exemption" for price parity clauses relating to hotels' own public websites is considered justified to prevent "free-riding" on's investments, thus ensuring the continued offering of user-friendly search and comparison services free of charge.

Commission to Investigate Online Selling Practices for Compliance with Antitrust Law and to Inform Future Legislation

In a move relevant to all companies active in online sales, on 26 March 2015, the European Commissioner in charge of competition policy announced a forthcoming proposal to launch a competition inquiry in the e-commerce sector. The inquiry, if confirmed (and it is very likely that it will be), will focus on private and, in particular, contractual barriers to cross-border ecommerce in the EU in digital content and goods.

As is normal in such inquiries, once the inquiry is launched, the EC will gather information from a large number of stakeholders in all EU Member States. Knowledge gained through the sector inquiry will be used to enforce competition law in the e-commerce sector and also, the EC indicates, to facilitate consideration of various legislative initiatives which the Commission plans to launch to boost the EU's Digital Single Market.

This latter point is particularly important; the inquiry will impact future legislation. One practice which could be impacted is so-called "geo-blocking" of websites based on exclusive territorial content licenses. That is currently a difficult issue under EU competition law.

In any event, the inquiry and the questionnaires should be followed and considered carefully by any company with an interest. Active participation, with advice taken as necessary, is essential.

Additional European competition law news coverage can be found in our news section.

U.S. Antitrust

We publish a newsletter and bulletins on U.S. antitrust developments, as well as regular publications on numerous other topics.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions