Chillin'Competition

It is remarkable that the remedies in Google Shopping, a case that was decided more than three years ago, are still being discussed. As you certainly remember, the Commission chose a ‘principles-based’ approach that did not specify a particular way to comply with the decision.

Complainants argue, to this day, that Google’s implementation of the neutrality obligation mandated by the Commission does not respect the principles outlined in the decision.

It is against this background that the Journal of Competition Law & Economics is proud to feature a mini-symposium on the matter.

One of the papers – ‘Google Shopping for the Empress’s New Clothes –When a Remedy Isn’t a Remedy (and How to Fix it)’ – was prepared by Philip Marsden. As disclosed by Philip, the piece is a spin-off of some research he undertook for one of the complainants in Google Shopping.

The second paper – ‘Do We Need to Regulate Equal Treatment? The Google Shopping Case and the Implications of its Equal Treatment Principle for New Legislative Initiatives’ – was prepared by Thomas Graf and Henry Mostyn, who represent Google in the case (as is well known and disclosed).

The two papers are currently behind a paywall but we are looking, at JECLAP, to making them available free of charge soon.

If you ask me, the key takeaway about this debate is the very fact that it is taking place and that the remedy is still in a limbo over three years since the adoption of the decision.

Contrary to what has sometimes been suggested, this state of limbo is not a bug. It is an integral feature of proactive intervention in digital markets. Redesigning products and altering business models is complex, prone to errors, and does not have an obvious end in sight (once down this road: where to stop?).

I certainly do not see this case as a one-off or an aberration, but a sign of the challenges to come under the new competition law. As I mentioned at a conference a few weeks ago: in digital markets finding an infringement is not the end, it is just the end of the beginning.

Enjoy the papers!