The end of the 14-year long case provides an opportunity to reflect on the step-change in antitrust enforcement against big tech around the world
The ECJ upheld the EC’s fine against Google for self-preferencing, closing a lengthy chapter in tech antitrust history
On 10 September 2024, the European Court of Justice (ECJ) announced its decision to uphold a €2.42bn (£2.12bn) fine levied against Google by the EC. The EC’s original investigation, which was launched in 2010, found that Google had preferenced its own comparison shopping service, Google Shopping, in search engine results and therefore had abused its dominant position in the search services market. According to our Platforms and Big Tech Tracker, the penalty issued by the EC was among the first major fines issued in tech antitrust cases from around the world and is still the second largest fine to date, trailing only a 2018 fine also issued by the EC to Google. The General Court for the EU had previously upheld the EC’s fine in 2021, although it struck down the argument that Google’s conduct had an anti-competitive impact on the search services market.
The EC’s case against Google spanned a period of seismic change in antitrust enforcement around the world
In addition to the historic size of the fine involved, the EC’s case against Google came to be known as a landmark moment in the history of big tech antitrust enforcement. Since the EC launched its investigation 14 years ago, more than 90 other cases against big tech companies have been opened in at least 20 other countries. Ex-ante frameworks for the regulation of digital markets, including the search services market at issue in this case, have also been introduced in at least seven jurisdictions, and most explicitly prohibit the self-preferencing behaviour at issues in the EC’s case. At least four countries have also launched studies into the functioning of the search services market, picking up on the EC’s annulled claims about Google distorting competition among search engines. The case could be understood as the antidote to the chilling effect that the US Department of Justice’s refusal to continue its anti-monopoly suit against Microsoft in 2000 had on regulating competition among emerging technologies around the world. The EC’s success will also help to cement the legacy of Margrethe Vestager (Executive Vice-President and Competition Commissioner, EC) as an early leader in the EU’s efforts to rein in the power of big tech.
Enforcement in e-commerce markets is complicated by the addition of retailers to multi-sided markets
Beyond the case’s influence in initiating a new era of digital markets regulation, the issues of self-preferencing and exclusivity in online shopping and e-commerce have also been investigated by a number of other regulators. In China, the State Administration for Market Supervision pursued a rare antitrust action against online retail giant and super-app service Alibaba for subjecting third-party sellers to unfair terms of trade, resulting in the third largest fine in global tech antitrust in 2021. Amazon has also faced at least 15 investigations across nine different jurisdictions into its terms for, and treatment of, third-party sellers, which have resulted in fines totalling £975m to date. Platform services of any kind operate in a multi-sided market, often as a relationship between consumers, the platform service and advertisers. However, in the context of e-commerce, platforms both serve smaller retailers as market participants and compete with retailers in selling products, making anti-competitive behaviours even more harmful. Though the EC’s case on Google Shopping does not directly engage third-party retailers, a limit or disincentive on the ability of consumers to access other comparison shopping services can distort downstream competition in online shopping and further disrupt a retail industry that has already been transformed through the advent of e-commerce.
