Is there an enforcement pattern in the EU? The AdSense for Search Decision – Disruptive Competition Project

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Today, the European Commission (EC) has released the final result of its antitrust investigation into Google’s “AdSense for Search” product, or “AFS”.  This case marks the finish of the EC’s 10-year investigation into Google’s companies, and is the third choice of its three important Google circumstances: Search (Shopping), Android, and AFS.

Interestingly, the AFS choice consolidates the EC’s pattern of reaching totally different conclusions than different competitors authorities that regarded into the identical issues.  Comparing the Google selections in the EU with these of different enforcers, the EC stands alone in its findings.

What was determined right now?

AFS allows an internet writer to put textual content commercials by itself search engines like google.  For instance, if a writer supplies a manner for readers to go looking for previous articles, AFS can place related textual content advertisements subsequent to these search outcomes.  Publishers obtain a portion of the ensuing advert income, and thus AFS offered one other means for monetizing current content material. In the previous, Google’s AFS contracts included clauses limiting, for instance, the place competitor advertisements may seem relative to Google’s advertisements to cut back confusion between them. These restrictions, which have been amongst these at challenge in the EC’s inquiry, have lengthy been faraway from AFS contracts.  

In right now’s choice, the EC took issue with these historic contract provisions to search out that Google’s previous conduct abused its dominant place by artificially limiting third-celebration web sites from displaying textual content-solely search commercials from Google’s rivals.  In doing so, the EC argues that Google diminished selection and stifled innovation in on-line markets.

Is there an enforcement pattern?

As in the Google Shopping case, the EC’s AFS choice analyzed the identical proof as different competitors authorities, however reaches opposite conclusions referring to Google’s companies.

Back in 2010, the EC began investigating AFS contracts.  Likewise, the Federal Trade Commission and the Canadian Competition Bureau performed their very own investigations into Google’s providers, together with AFS.  These different companies regarded into the exact same AFS contract clauses at challenge in the EC’s case, and determined to shut their respective investigations with out taking any motion.  Notably, in the U.S., then-Commissioner Ohlhausen acknowledged that the FTC’s investigation didn’t “reveal evidence that Google was coercing its partners into restrictive arrangements; rather, the evidence showed that virtually none of Google’s partners are seeking to switch any of their business to non-Google providers.  Simply put, I was not presented with any evidence to indicate that these arrangements were anything other than procompetitive.” The FTC’s conclusion was not shocking provided that different promoting suppliers can and do outbid Google to offer these kinds of advertisements.

So is that this the finish of the decade?

While the decade-lengthy arc of Google investigations is now behind us, it’s now the time to attend and see whether or not the European Courts in Luxembourg help the EC’s pattern of competitors enforcement, or slightly, desire to attempt to redirect the EC in line with different jurisdictions which have regarded into the identical issues.   As these circumstances will type a rising physique of EU case legislation on competitors enforcement in digital markets, the significance of their final result can hardly be overstated.


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