Influential legal opinion sides with EU Commission’s €2.4 bn fine in Google Shopping case

The Advocate General of the EU Court of Justice Juliane Kokott released its opinion on the Google Shopping case on Thursday (11 January), suggesting that the EU top court confirms the European Commission’s fine of €2.4 billion.

The Google Shopping case has been one of the most influential antitrust court cases against a technology giant, certifying in EU jurisprudence the concept of ‘self-preferencing’ as a form of abuse of dominance.

“The Advocate General Kokott fully confirms the Commission’s decision against Google. Interestingly, the Court used for the first time the term ‘self-preferencing’ in an official statement, recognising the importance and the independent form of the alleged abuse,” Cristophe Carugati, founder of the advisory firm Digital Competition, told Euractiv.

In 2017, the EU competition department, following complaints from several competitors such as Trivago, concluded a seven-year investigation on Google, finding that the search engine gave preference to the results of its own shopping service over its rivals.

The Commission considered that this disparity of treatment led to Google Shopping catching more user traffic, not because it offered a better service but because the tech giant unduly leveraged its dominant position in the search engine market to gain advantages in another field.

EU Court confirms €2.4bn fine against Google for market abuse

In a major victory for the EU’s competition regulator, a judgement by the EU General Court has confirmed the European Commission’s sanctions against Google for self-promoting its shopping service.

As a result, Google was fined €2.4 billion, but the company challenged the Commission’s decision before the EU Court of Justice. In November 2021, the General Court largely dismissed Google’s legal dispute and confirmed the sanction.

At the same time, the EU’s lower court dismissed the Commission’s case concerning its argument that Google’s conduct had anticompetitive effects on the market for general search services. Google appealed the verdict, asking the European Court of Justice to annul the Commission’s decision.

However, for Advocate General Juliane Kokott, the EU top court should dismiss Google’s case and confirm the penalty. Albeit non-binding, these legal opinions are followed in the final judgment in most court cases.

“We will review the opinion of the Advocate General and await the court’s final decision. Irrespective of the appeal, we continue to invest in our remedy, which has been working successfully for several years, and will continue to work constructively with the European Commission,” a Google spokesperson told Euractiv.

The legal opinion points out that Google’s conduct constitutes an independent form of abuse because it imposed unreasonable access conditions to competing shopping services, resulting in an exclusionary effect on the market for specialised product searchers.

“AG Kokott confirms what everyone in the world except Google is very clear about: that it systematically foreclosed competition by directing traffic and manipulating queries,” leading competition economist Cristina Caffarra told Euractiv.

“The problem remains the time it takes to get anywhere with these cases, the lack of remedies worth their salt, the lack of any recourse on ineffectual remedies, and the general lack of any deterrence effect. This is the persistent endemic problem with antitrust in tech, which we are not about to resolve any time soon in Europe,” Caffarra added.

The European Commission declined to comment on the opinion. The final verdict of the European Court of Justice is expected in the coming months.

[Edited by Alice Taylor]

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