On 21 May 2012, the Commission issued a press statement inviting Google to submit remedies to address four concerns it identified pursuant to the antitrust investigation it launched in November 2010 into a potential abuse by Google of its dominant market position.
The Commission noted that, on the basis of a number of complaints it had received, it had identified four areas of concern where Google's business practices may be considered as abuses of dominance (notably, these were already hinted at in the Commission's press release of 30 November 2010, which the Commission issued when it decided to open its investigation).
The first concern identified by the Commission is that, in its general search results on the web, Google displays preferential links to its own vertical search services. "Vertical search services" are specialised search engines which focus on specific topics, such as for example restaurants, news or products.
The second concern identified by the Commission relates to the way Google copies content from competing vertical search services and uses such content in its own offerings. The Commission alleges that Google may be copying original material from the websites of its competitors, such as user reviews for travel sites and restaurant guides, and using that material on its own sites without prior authorisation. The Commission expressed the concern that this could reduce competitors' incentives to invest in the creation of original content for the benefit of internet users.
The third concern identified by the Commission relates to agreements between Google and partners on the websites on which Google delivers search advertisements. In this respect, the search advertisements in question are advertisements that are displayed alongside search results when a user types a query in a website's search box. The Commission claims that these agreements result in de facto exclusivity insofar as customers are required to obtain all or most of their requirements of search advertisements from Google, thus shutting out competing providers of search advertising intermediation services. The Commission notes that this potentially impacts advertising services purchased, for example, by online stores, online magazines or broadcasters.
Finally, the Commission expressed concern about restrictions that Google imposes on the portability of online search advertising campaigns from its platform AdWords to the platforms of competitors. AdWords is Google's auction-based advertising platform, on which advertisers can bid for the placement of search ads on search result pages provided by Google. The Commission's concern is that Google imposes contractual restrictions on software developers that prevent them from offering tools that allow the seamless transfer of search advertising campaigns across AdWords and other platforms for search advertising.
According to the Commission's press release, it has offered to Google the possibility to come up with first proposals of remedies to address each of these points "in a matter of weeks", with the aim of adopting a commitments decision under Article 9 of Regulation 1/2003.
Notably, the Commission added that this process is without prejudice to the continued investigation of other issues regarding Google that have apparently been raised with the Commission.
The Commission explained its preference for a commitments decision on the grounds that the markets involved are fast-moving and would therefore particularly benefit from a quick resolution of the competition issues identified. Moreover, the Commission stated that it relied on the fact that Google repeatedly expressed its willingness to discuss any concerns that the Commission might have without having to engage in adversarial proceedings. In apparent contrast to the Commission's characterization of Google's position, Google followed up the Commission's announcement without indicating that it was open to proposing remedies. Instead, it claimed that the Commission has not yet given it "precise data" or identified the "precise problem", and indicated that the market was competitive and there is no need for a change.
The position of current Competition Commissioner Joaquín Almunia as regards Google would seem to stand in stark contrast to former Competition Commissioner Mario Monti's approach in dealings with Microsoft. Following settlement discussions with Microsoft, which the former Commissioner described as taking place in a "constructive and co-operative spirit", the former Commissioner announced in a press statement of 18 March 2004 that the Commission planned to adopt a decision because it was "essential to have a precedent which will establish clear principles for the future conduct of a company with such a strong dominant position in the market." The Commission's proceedings against Microsoft ultimately resulted in total fines imposed of over € 1.67 billion. In contrast, if Google ultimately decides to submit proposals to the Commission and these are accepted under Article 9 of Regulation 1/2003, no fines could be imposed.
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