Google online shopping competition fine upheld

The European Commission decided in 2017 that Google had abused a dominant market position, in breach of Article 102 of the Treaty on the Functioning of the European Union (TFEU), over the placement of its own comparison shopping service in its search engine results relative to its placement of similar services run by rivals.

Google asserted at the time that the search results it displays reflect the wishes of consumers and benefit businesses seeking to advertise their products. The company challenged the Commission’s decision before the EU’s General Court.

In 2021, the General Court largely dismissed Google’s appeal, but the company argued that the court made errors in law in the way it reached its decision. Google appealed its judgment to the Court of Justice of the European Union (CJEU).

On Tuesday, the CJEU rejected Google’s grounds of appeal, including claims that the General Court had applied an incorrect legal test in order to assess whether there was an abuse of a dominant position and further arguments pertaining to the assessment made about the effects of its conduct on competition.

The CJEU also considered that the General Court did not make a misstep in how it assessed the way in which the Commission had determined that its practices did not constitute ‘competition on the merits’ – a concept in EU competition law that provides dominant companies with a right to protect their own commercial interests where these are under attack, so long as their actions are reasonable and proportionate and are not undertaken with the purpose of strengthening an existing dominant position in the market or abusing such dominance.

The CJEU’s judgment comes days after the UK’s Competition and Markets Authority (CMA) issued a statement of objections under UK competition law against Google over online advertising practices. The CMA’s provisional view is that Google has abused a dominant market position in the UK by alleged ‘self-preferencing’ of its advertising exchange over rival exchanges, through its operation of its publisher ad server and ad buying tools.

Google has an opportunity to submit evidence and make representations to the CMA in response to the statement of objections before the CMA decides whether to issue an infringement decision, which is not expected until the end of 2025.