Chillin'Competition

The blog post that announced MSFT’s complaint identifies a half dozen of allegedly problematic practices, but keeps off from characterizing any of those practices as an abuse of dominance, under the qualifications of EU competition law. Rather MSFT seems to portray Google’s strategy as a bunch, collection, network of tactics which altogether have an unlawful, anticompetitive foreclosure effect. Read Brad Smith’s own words: “Google has engaged in a broadening pattern of walling off access to content and data that competitors need to provide search results to consumers and to attract advertisers”.

Based on my own, little experience of competition cases, this is not unprecedented in Article 102 TFEU complaints.

That said, there’s a beautiful legal question behind this. Assume that none of the allegations meets, in and of itself,  the conditions for an unlawful abuse. Can the Commission still find an infringement of Article 102 TFEU out of the “cumulative effect” of a string of practices, which as a whole foreclose rival market players? In the language of Kyokushin Kaikan, should Article 102 TFEU apply only to headkick knockouts, or also – as is the case in many martial arts – cover knockouts achieved through a series of side and low kicks.

Take for instance allegations 1 (impediments to proper Youtube indexing on rival search engines), 2 (hurdles to the display of Youtube content on rival smartphones) and 3 (unavailability of orphan books for rival search engines). None of those allegations seems to involve an indispensable input, as explained previously on this blog. Hence, none of them should give rise to a stand-alone finding of unlawful abuse.

However, can the refusal to provide access to a bundle of important – yet not indispensable – inputs be tantamount to an abuse of a dominant position?

From an economic perspective, the answer ought to be affirmative if it is proven that this “multi-input” refusal to deal has foreclosure effects of the same magnitude as a “single input” refusal to deal (involving indispensable content). From a legal standpoint, one may nevertheless criticize a dangerous lowering of the threshold for intervention in Article 102 TFEU cases.

At any rate, some inspiration on this may be drawn from karate the case-law on Article 101 TFEU, which accomodates a reasoning of this kind through concepts such as “cumulative effects” or the “complex infringement” doctrine.