Relaxing whilst doing Competition Law is not an Oxymoron

Anything is possible (on the anticipated Google SO)

with 3 comments

It has been reported today (see here) that Commissioner Vestager may announce tomorrow that the Commission will be addressing Google a Statement of Objections.

This move, that many (including ourselves) would not have anticipated only a few months ago, has been the subject of rumors for some weeks. We have been asked about our opinion a myriad times these past days, and, frankly, we cannot say much more than what we have said in our many posts on the subject (too many to be linked to now), all written in the light of the very scarce publicly available information.

The good news of this whole story is that the law may now take center stage. I wrote recently that this was a perfect case study to discuss the limits of Article 102 (see the end of this post for my own recent case study on the subject for the Brussels School of Competition), but it is also a perfect case study on the huge importance of non-legal factors in competition cases in which the law is unclear (as it’s arguably always the case, save in -some- cartel cases) (for our previous reflections on this, see here or here).

The decision to pursue the case, at least for now, is likely to bring to the fore some fascinating legal questions. The arguments of both parties are by know well known, but it will be interesting to see how the Commission will frame its theory of harm. The stakes couldn’t be higher for Google, for the complainants resorting to competition law as a major competitive tool, and for the Commission, which was left in an uncomfortable position by the last minute decision to halt the commitment negotiations, which generally has the winning hand in these cases and which has, until know, always succeeded in all its 102 cases, including all previous high-stakes tech ones.

Whereas the parties’ submissions will, in principle, not be made public, their arguments have recently been publicly championed by commentators who give us a good taste of what is to come. The latest round of comments has been made by two reputed experts who have held some of the highest possible roles in the competition community, namely President of the General Court (Bo Vesterdorf) and Emeritus editor of Chillin’Competition (Nicolas Petit).

Mr. Vesterdorf’s piece (based on research done for Google but expressing his own views) has very recently received a reply from Nicolas (his research has been financed by iComp, a complainant in the case, but he also expresses his own views). We suggest that you read both.

Pablo and myself -who, believe or not, for better or worse, and despite the hours invested, must certainly be among the few who haven’t made any money out of this case in over 4 years…- are most curious about the many conceivable scenarios that now open up, but we won’t give our take on what is to happen. Why? Because as the recent evolution of the case shows, in proceedings with so many non-legal ancillary factors, predictions are doomed to fail; anything is possible.

Written by Alfonso Lamadrid

14 April 2015 at 11:36 pm

Posted in Uncategorized

3 Responses

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  1. I find fascinating the concept of “[his/her] research has been financed by [party in the case] but [he/she] has expressed [his/her] own views”


    15 April 2015 at 8:13 am

  2. Mr.Vesterdorf is too brief and Mr.Petit is too long in each of them arguments. On balance, Bo Vesterdof is right in stating that the essential facility concept must have a very restrictive interpretation, since, as Nicolas also points out, it is not even officially reconnized! I do not think Mr.Versterdorf contradicts his previous positions on abuse of dominance (including those expressed by the General Court he presided – not necessarilly his own views thou).
    Nicolas attempts to introduce new concepts in competition law (the ”theories of self-preferencing” is a fancy name for…nothing, yet) but if Mr.Vesterdorf line of thinking looks simplistic, Nicolas theories are overtly biaised – it should be something wrong with Google, although we cannot see exactly what. Discrimination, tying or unfair pricing would work, perhaps, if Google would have charged for its services – it did not, folks, and this is so pro-competitive! We have a saying: ”I gave him a finger and now he wants my hand, entirely”.
    The same line of thinking is constantly present at Google foes since the beginning and I am truly amazed how these were not able to show the slightest theory of harm but kept going on on strong words and adjectives.
    To quote today s statement of the Commission: ”such conduct infringes EU antitrust rules because it stifles competition and harms consumers”. It really hurts consumers or we are like using impressive words? Where is the harm?


    15 April 2015 at 2:38 pm

  3. […] issues that the Commission will have to address in its own – and pending – Google case (see here and here). In essence, Streetmap argued that Google’s prominent presentation of its mapping […]

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