Search Neutrality

We welcome today’s General Court judgment, which comprehensively upholds the Commission’s June 2017 Google Search (Comparison Shopping) Prohibition Decision.

While we welcome today’s judgment, it does not undo the considerable consumer[1] and anti-competitive harm caused by more than a decade of Google’s insidious search manipulation practices. Nor will it restore competition to the beleaguered comparison shopping market.[2] That will require the European Commission to stop procrastinating and finally enforce the equal-treatment remedy it mandated in its Prohibition Decision.

It has now been twelve years since we submitted the Competition Complaint that triggered the EC’s investigation, and four years since the Prohibition Decision upheld our complaint and declared that Google had just 90 days to remedy its illegal conduct or face substantial additional fines. Yet, to date, Google has done nothing to end or mitigate its unlawful conduct.

Former Competition Commissioner Almunia spent years pursuing minor cosmetic tweaks to a positively harmful, worse than doing nothing, auction-based “remedy” proposal.[3] And Commissioner Vestager has now spent four years doing much the same.[4]  The Commission continues to “monitor” the brazenly non-compliant[5] CSS Auction Google introduced in the guise of a Compliance Mechanism in September 2017.

The main difference between the current CSS auction (masquerading as a “compliance mechanism”) and Google’s previous CSS auctions (masquerading as “remedy” proposals), is that this time Google’s own CSS is also participating in the auction. But Google’s participation in the auction isn’t real. In stark contrast to rival CSSs who are compelled to bid away the vast majority of any anticipated profit, Google’s own bids are just meaningless internal accounting that cost it nothing.[6]

If a thief demands your wallet, would you be placated if he reassured you that he was also intending to rob himself? Of course not. Because you instinctively understand that this is an empty promise. A thief cannot meaningfully rob himself any more than Google’s CSS can meaningfully participate in a Google auction. As Google’s financial accounts would readily confirm, any “cost” attributed to a Google bid is cancelled out by the corresponding and equal “credit” generated by that same bid. Google’s CSS could literally bid ten million euros per click and it wouldn’t cost Google Inc. a cent. Just as our imaginary thief’s meaningless promise to also rob himself doesn’t become meaningful if he follows through with the charade by handing himself his own wallet before putting it back in his own pocket.

We used to say that it would be difficult to imagine an antitrust case with more at stake than the Google Search case. And despite recent developments, which have shown how the conduct of certain social media companies can pose a threat to the very fabric of society, it is still difficult to imagine a case where the stakes for consumers, businesses, and innovation could be any higher. As the gateway to the Internet, Google plays a decisive role in determining what most of us read, use, and purchase online. The importance of ending Google’s ability to manipulate this unprecedented power to its own anti-competitive ends cannot be overstated.

Today’s judgment provides the Commission with a firm basis to now enforce its June 2017 Prohibition Decision—not just for the beleaguered comparison shopping market directly addressed by the Decision, but also for the travel, local, jobs and other vertical search markets for which this Decision sets a precedent.

For the full timeline of significant events before, during, and after the EC, FTC, and DOJ Google antitrust investigations, please see our Timeline.