Archive for the ‘Breaking – Antitrust – News’ Category
The Microsoft and Telefónica hearings-towards stricter judicial review of Art. 102 TFEU cases?
Something might be moving at the European Courts.
According to some of the people who attended the hearings held last week before the General Court on the Microsoft and Telefónica cases, the Judges in Luxembourg showed an unusual interest in the details of both cases and asked an unusual number of well-thought out questions. This was also reflected on the duration of the hearings: I hear that the one on the Telefónica case finished around 21.00 pm, which is quite unusual too.
According to my sources, the members of the Second Chamber were particularly eager to listen to the oral arguments on the Microsoft case. (By the way, some of Nicolas´opinion with regards to this case have been widely quoted in the media; see here).
It will be most interesting to see how the General Court deals now with the second part of this case, particularly given that the Judgment issued with regards to the main original decision may not have pleased all of its members.
In this sense, it is worth noting that Judge Forwood (President of Chamber) is the Rapporteur on this case and the one who asked all questions. Judge Forwood has been reported to be amongst the 6 Judges who lost the vote on the Microsoft Judgment by a margin of one (click here for more info on this).
The EU Courts´ stance in relation to the appropriate degree of judicial review in abuse of dominance cases will be put to test in other pending cases. The ECJ´s Judgment on the appeal against the General Court´s Judgment in Tomra could be of particular interest for the future in light of the limited review undertaken by the GC. In fact, I hear that the Intel case -currently pending before the GC- may be slowed down so as to wait for the ECJ to state its position on the obligations incumbent upon the Commission and the Courts with respect to the assessment of the effects of a given practice.
ChillinLeaks
Back from Luxembourg with a present for our readers:
Report for the Hearing – MSFT v Commission – T 167-08
Not only the hearing was cool. We also had bilateral meetings with a legal secretary of the General Court (Foad Hoseinian), a judge of the Civil Service Tribunal (Mr. Gillot, not sure about the spelling) and, last but not least, Judge Koen Lenaerts from the ECJ.
A truly great day.
Net neutrality and Antitrust
The European Commissioner for the Digital Agenda, a certain Neelie Kroes, is now in charge of dealing with European policy with regards to net neutrality. This hot issue, which is now her current priority (for her latest speeches on this subject see here and here), is the subject matter of a Commission´s Report she presented to the European Parliament on April 19th.
Net neutrality activists have heavily criticized the Report alleging that it endorses a “wait and see” approach in spite of the identification of alleged instances of blocking or throttling of certain types of traffic. The Report states that the Commission and BEREC are currently investigating those alleged practices and that “[i]n this regard, the Commission reserves its right to assess under Articles 101 and 102 of the TFEU any behaviour related to traffic management that may restrict or distort competition“. One should however note that the Report doesn´t exclude the possibility that an ad hoc regulatory framework might be adopted.
On the other side of the Atlantic the debate on the interface between antitrust and regulation on this same area is also a “trending topic”. Speaking last Thursday before a Subcommittee of the US Congress, the President of the US Federal Communications Commission expressed his views on this debate stating that:
“while critically important, antitrust laws alone would not adequately preserve the freedom and openness of the Internet or provide enough certainty and confidence to drive investment in our innovation future.
(…) antitrust enforcement is expensive to pursue, takes a long time, and kicks in only after damage is done. Especially for start-ups in a fast-moving area like the Internet, that’s not a practical solution”.
He also replied to the Republican´s party proposal to enact specific antitrust laws to regulate internet neutrality:
“Some have suggested that Congress adopt new antitrust laws addressing Internet openness. But that too would be a problematic approach, ill-suited to the fast-changing nature of Internet technology. As the Supreme Court has pointed out, while statutes are hard to change in light of new developments in network technology or markets, expert administrative agencies have flexible processes for dealing with the unexpected and are, accordingly, better suited for handling this particular issue”. (See here for his complete statement).
At first sight, my -rather simple- take is that if there really were a need for intervention (not having devoted time to this issue I wouldn´t dare to express an opinion on this point) antitrust and regulation could play together and should be seen as complements rather than as substitutes (although that´s certainly much easier to say in the EU in light of case law such as Deutsche Telekom than in the EU, where the Supreme Court´s Decision in Trinko enormously complicates antitrust challenges to practices already subject to regulation on the part of the FCC).
This could be an interesting topic a discussion and we haven´t paid much attention to it here. We´d be glad to open the floor to any of our readers who might have some more developed thoughts on it. Anyone?
We´re back. And a few things happened while we were away
We´re back on track. Since, strangely enough, the world didn´t stop turning in our absence, there have been a number of interesting developments worth noting. Some of them will be the object of specific posts in the coming days, but, for the moment, here´s a choice of three: one from the EU, one from the US, and one from a third jurisdiction (Mexico), which are related to matters that have recently been/will soon be discussed on this blog:
Europe: Last Tuesday Commissioner Almunia delivered a speech at the GCLC´s Fifth Evening Policy Talk (by the way, the director of the host institution, who happens to be my co-blogger, Monsieur Petit, was absent; how rude is that?? 😉
Commissioner Almunia spoke about the “resilience and adaptability” of the competitition rules; he highlighted the four commitment decisions adopted by the Commission in the energy sector, pointed out that competition enforcement can achieve objectives other than the efficiency of markets (resorting to the example of facilitating generic entry into pharma markets), and insisted on the necessary complementarity of regulation and competition (with his eyes set on financial markets).
In addition, and very interestingly, Mr. Almunia announced plans to aim for a “better targetting” of State aid control, noting that the Commission´s services currently have too much on their plate. It will be most interesting to see the practicalities of how the Commission intends to “refocus” its resources on the State aid field. In the coming days one of the greatest experts on State aid matters will express his views on these plans on Chillin´Competition.
United States: More Google News (and this time we’re far from being the first ones commenting on them…). On earlier posts we referred to the controversy surrounding the Google/ ITA software deal. Some days ago the parties entered into a consent decree which imposes a set of detailed “regulatory” conditions upon Google’s future operation of ITA that would resolve all of the DOJ’s competitive concerns. Those concerns essentially related to the possibility of other flight search companies being foreclosed from access to QPX (ITA’s airfare pricing and shopping software). A press release from the DOJ briefly describes the conditions imposed by the consent decree in the following terms:
Under the proposed settlement, Google will be required to continue to license ITA’s QPX software to airfare websites on commercially reasonable terms. QPX conducts searches for air travel fares, schedules and availability. Google will also be required to continue to fund research and development of that product at least at similar levels to what ITA has invested in recent years. Google will also be required to further develop and offer ITA’s next generation InstaSearch product to travel websites, which will provide near instantaneous results to certain types of flexible airfare search queries. InstaSearch is currently not commercially available, but is in development by ITA.
To prevent abuse of commercially sensitive information, Google will be required to implement firewall restrictions within the company that prevent unauthorized use of competitively sensitive information and data gathered from ITA’s customers. The proposed settlement delineates when and for what purpose that data may be used by Google. Google is also prohibited from entering into agreements with airlines that would inappropriately restrict the airlines’ right to share seat and booking class information with Google’s competitors. Finally, the proposed settlement provides for a formal reporting mechanism for complainants if Google acts in an unfair manner.
(For a more detailed explanation on these conditions read the Proposed Final Judgment. Other documentation related to the case can be found here).
The consent decree is subject to the US District Court for the District of Columbia’s approval, and must now go through a 60 day comment period. As all Google-related stuff, the consent decree has instantly spurred different sorts of enthusiastic reactions. Google is excited because the deal is now “cleared for take off”, and rivals are happy too because one of the conditions imposed by the consent decree effectively creates a mechanism for the continued scrutiny of a narrow part of Google’s activities. Any reactions from our readers?
International antitrust: The impact of competition law is becoming increasingly more noticeable in Latin America. The Mexican Federal Competition Commission (COFECO) imposed a record MXN12 billion (USD 1 billion= 865 million euros) penalty on Telcel (a subsidiary of America Movil, owned by Carlos Slim). The sanction was announced some days ago, but it was only yesterday that COFECO gave details about its decision, explaining that Telcel had charged interconnection fees to terminate calls on the Telcel network that were above the implied charges for calls made within its own network, or even above the final charges Telcel makes to its own customers. The fact that Telcel was a repeat offender motivated the levying of the maximum possible sanction (i.e. 10% of Telcel´s turnover in the preceeding year). We don´t have much more info on this, but since I´ve been asked to write about it in the Mexican press, it´s quite likely that we´ll discuss the case more in depth in the near future.
Welcome back!
Microsoft v. Google – Karate Competition Law?
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.
Microsoft v. Google – Clash of the Titans
On Behalf of the Antitrust Community, A Big Thank You – Antitrust law professors should be grateful to Microsoft (hereafter, “MSFT”). As a repeat offender of the competition laws, MSFT has provided scholars with loads of research and educational material for the past 20 years. Now, since yesterday, MFST is trying to turn the tables. In its complaint against Google, MSFT seeks to endorse the role of the victim of anticompetitive conduct. Food for thought in upcoming lectures, articles, and so on.
My Initial Reaction, and the Timing of MSFT’s Complaint – I have on several occasions criticized the Commission’s MSFT decisions (and some might have thought that I had a tiny bias for the Redmond giant). Given that I try to be am consistent with myself – and that I do not, or no longer, work in a law-firm advising one of those firms – I’ll be blunt: from a legal perspective, yesterday’s complaint against Google looks fragile. Its chief, and maybe sole merit is to throw some mud at Google in the press, at a moment when (i) Google has been reported to be close to a settlement with the Commission; and (ii) Google has suffered a major setback last week, when its settlement with US publishers and authors was annulled by a NY judge.
The Essential Facility Allegations – For this first post on the MSFT complaint, let’s focus on two of the new allegations described in MSFT’s General Counsel’s post. The first couple of allegations involve a conventional refusal to supply case, with input foreclosure effects. Google is a vertically integrated operator with upstream activities (media content) and downstream interests (search, mobile phones, etc.). The complaint focuses on the media content which Google provides through Youtube. Through a range of technical measures (e.g., refusal to disclose the site map of Youtube which prevents indexing), Google would allegedly restrict rival search engines and mobile phones’ access to Youtube content (e.g. indexing of Youtube links on Bing would not be satisfactory). Since Youtube content is an essential input for rival firms downstream, Google’s conduct would lead to foreclosure effects. This scenario has been described in the December 2010 Opinion of the French Competition Council at §313.
Smartphones and Search Engines are Multifunctional Products – I have my doubts on those allegations. Remember: three cumulative conditions must in principle be met to prove an unlawful refusal to deal under Article 102 TFEU. The first of them involves proving that the input is “indispensable” for rival firms to operate in the downstream market. On cursory examination, this condition is unlikely to be met in the present case. This is because Youtube content represents (i) only a tiny share of what end-users look for on the web; and (ii) one of the very many parameters which buyers consider when they purchase smartphones. Rival search engines/phone manufacturers foreclosed from access to Youtube may still compete with Google out of search efficiency on other types of data (news, blogs, whatever). Similarly, rival smartphone manufacturers may still compete with Google’s Android phones on other types of apps, on genuine technical performance (screen, battery, etc.), and so on. Search engines/smartphones are multifunctional products. As such, they can operate viably around the content function – as premium as it may be – provided by Youtube.
Replicability? – In addition, the indispensability condition is not met where the firm requesting access can replicate the alleged essential facility, or start its own production of the alleged essential input (e.g, through investments or upwards vertical integration, for instance). Here again, one should not forget that the financial costs required to create a database similar to Youtube are not that significant. This is because content is posted primarily by users, and those do not have to pay for this. The crux of the matter for a new entrant thus lies in attracting users to the media platform and incentivizing them to upload their content. And to do this, the only thing needed is an ergonomic platform and, first and foremost a nice and original idea. Back in the day, Youtube had it, Microsoft not. Tough luck.
Magnitude of the Alleged Unlawful Conduct – To prove an abuse, one must also establish that the conduct has anticompetitive foreclosure effects. On this, it must be stressed that Youtube belongs to the list of websites which most workers cannot visit during day-time. Hence, access to Youtube content is irrelevant to many of the Internet searches made across the world during working hours. Rival search engines that do not index any Youtube content can thus perfectly provide adequate search functionalities to worker, and have thus a lot of space to expand on the market. If there’s a foreclosure effect, it is likely to be limited to a fraction of the searches made on a daily basis.
Caveat – Of course, all of this remains subject to further discussion, but those are a few preliminary ideas that sprung to mind yesterday in reading the press release. I will try to post more on the other allegations in upcoming weeks.
A Wish – To conclude, let’s just pray that MSFT stays in business for the next years. Should MSFT be forced off the market through anticompetitive tactics, many antitrust scholars would face dramatic input foreclosure issues.
A Weird Coincidence – The MSFT complaint comes timely. A day after I published with my assistant a paper entitled “Back to Microsoft I and II – The Art of Secret Magic”. See here for a link to the paper (http://jeclap.oxfordjournals.org/cgi/content/abstract/lpq080?
ijkey=dJNPpOPfKQ5FcGd&keytype=ref)
Press Coverage – I am quoted in a Bloomberg report yesterday. See here.
Google Books Settlement Rejected
Some of you will recall that roughly a year ago I wrote a post on the Google Books settlement (“Google Books Settlement: It´s the search market stupid!”) in which I argued that the only competitive problem, if any, posed by the amended settlement related to the search market. [In that post we also directed you to the transcript and a very good summary of the fairness hearing (Part I ; Part II) which may allow you to better understand all subsequent developments].
Yesterday, Judge Chin, of the Southern District of New York, issued an opinion concluding that the Amended Google Books Settlement (“ASA”) is not fair, adequate or reasonable, precisely because it would further entrench Google´s maket power in the online search market. The Opinion is available here.
Judge Chin acknowledges that Google´s plan of creating a universal digital library would bring about great benefits for many, but concludes that the ASA “would simply go to far”. In his view, “it would permit the class action to implement a forward-looking business arrangement that would grant Google significant rights to exploit entire books, without permission of the copyright owners. Indeed, the ASA would give Google a significant advantage over competitors, rewarding it for engaging in wholesale copying of copyrighted works without permission, while releasing claims well beyond those presented in the case“.
From a reading of the opinion it is obvious that (i) Judge Chin has conferred significant relevance to the number and vociferousness of the objections presented to him, and has mainly based his Opinion upon them; and (ii) the decision is to a great extent motivated by concerns which are not directly antitrust-related, such as those over the adequacy of class representation (e.g. foreign authors), involuntary expropriation of copyrights by virtue of the “opt-out” mechanism, or the alleged improper use of the settlement of a class action to regulate a aspects of a “forward looking” business arrangement which had not been raised before the Court.
With regards to the antitrust concerns posed by the ASA, and after referring to the submissions made by several parties, Chin concludes that “Google´s ability to deny competitors the ability to search orphan books would further entrench Google´s market power in the online search market”.
Most, if not all, of the concerns outlined in the opinion would be addressed “simply” by switching from an opt-out to an opt-in model, although that would surely be detrimental to the scale and quality of the service provided and could perhaps even affect the viability of the project. Balancing all the interests at stake is certainly a daunting challenge.
There are no easy answers to the many fascinating issues that arise in connection with this case. In fact, its interest lies precisely on the fact that those issues can only be addresses by adopting a defined stance with regards to the core, almost ideological, debates underlying our discipline (amongst others, and to put a couple of them in their most basic terms: would we rather have a natural or de facto monopolist providing a service that no one else can provide, or would we rather prefer a counterfactual where we renounce to have that service for the sake of not having a monopolist controlling it? What room is there for fairness concerns in antitrust analysis?).
These are particularly complicated days at work, but you can expect a more detailed commentary of Judge Chin’s Opinion from us once things clear up a bit.
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PS. And speaking of Google, as announced here some days ago, on Friday I will be presenting a discussion on antitrust issues in cloud computing featuring Tero Louko (Google) and Carel Maske (Microsoft).
Other panels will feature Jennifer Vasta (Qualcomm), Thomas Kramler (European Commission), Luis Ortiz Blanco (Garrigues), Álvaro Ramos (Cisco), Miguel Rato (Shearman&Sterling), Pablo Hernández (SGAE) and Daniel Escoda (Telefónica).
The US Senate´s Antitrust Agenda (and a false debate)
Herb Kohl, the Democratic Senator chairing the US Senate Subcommittee on Antitrust, Competition Policy, and Consumer Rights announced yesterday the Subcommittee´s agenda for the next session of Congress.
The leitmotiv of the agenda is the idea that vigorous antitrust enforcement plays a vital role in ensuring consumer welfare. In particular, it appears that the Senate has its eyes set on the freight railroad industry; prescription drugs; gasoline, natural gas and oil markets; agriculture; media/Cable/satellite; airline competition; the broadband industry; and health care organizations.
In addition to those, some of the items in this agenda might affect EU competition law:
First, Kohl insists on the necessity of a statutory prohibition of resale price maintenance, arguing that the Supreme Court´s decision in Leegin “has the potential to seriously harm discount pricing and retail competition“.
Second, there is a specific mention to online markets and internet search issues. The Senate appears to be ready to conduct hearings on Google´s allegedly discriminatory practices in parallel to the investigation conducted by the European Commission (which we´ve covered here, here, or here), and, in clear reference to the Google/ITA Software controversy, also asserts its willingness to “closely examine the impact of further acquisitions in this sector“. It could be interesting to see how these two investigations overlap and affect each other.
Thirdly, and somehow related to the last point, is the Senate´s committment to “continue to examine closely how U.S. multinational companies have been affected by different antitrust regimes in various countries“. This is also a debate with which we´ve dealt before and that, to be frank, still perplexes me. I will explain why in a second.
But first, let´s make clear that, to be sure, Kohl´s agenda appears to be fair in referring to the varios viewpoints that have been expressed on this issue. The document reads as follows:
“Complying with the antitrust laws of different countries, which often have differing substantive and procedural rules, is increasingly becoming a burden on U.S. businesses. Over the past several years, foreign and in particular European regulators have been aggressive in their review of American companies’ business practices. Some have argued that these same foreign regulators have unfairly used their power to discriminate and hinder American corporations. On the other hand, many times those bringing complaints regarding the business practices of American companies to foreign antitrust enforcement agencies have been other American companies. Further, advocates of aggressive international enforcement argue that this enforcement is warranted. Exploring the validity of these claims will be an important priority for the Subcommittee”.
It´s shocking to see how widespread this idea that the Commission only targets US firms is, and how little factual support it has. Here are some reasons why I think that this whole debate should be a non-issue:
– It is a fact that in recent years the European Commission´s stance in some areas, particularly on abuse of dominance cases, has been tougher than that of US agencies (especially under the Bush administration). You may or may not agree with the Commission´s viewpoints ( I, for one, certainly don´t share a lot of the reasoning behind the Microsoft cases and the Google investigation), but it´s clear to me that if US firms are the main targets of such investigations it´s mainly because in most cases US firms are the dominant players worldwide. In fact, I wish more European firms were in a position to be subject to similar investigations in the US…
– European companies have to live with the precedents set by the Commission and the EU Courts and shape their strategy according to it. Consequently, if the law were really irrational or established excessively low thresholds for competition law intervention, as some claim, that would mainly be to the detriment of the competitiveness of EU companies.
– In spite of what the record fines on abuse of dominance cases may suggest, the reality is that fines on foreign companies, and US companies for that matter, represent a very small percentage of the total fines imposed by the Commission.
– In contrast to the above, fines on non-US firms represent nowadays the lion´s share of the the total fines imposed by US agencies. An illustration: it has been reported that in the past few years 80% of the fines above $ 10 million have been imposed on foreign firms.
– On the merger side, everyone recalls all the fuzz related to the prohibition decision in GE/Honeywell. But has anyone checked how many other acquisitions by US companies have been prohibited by the European Commission?
– Lastly, if many US antitrust lawyers believe that the Commission only goes after US companies that may be due to the fact that they only mostly pay attention to cases concerning US companies. One should remember, for instance, that the Commission has not only sanctioned Microsoft and Intel for abusive conduct, but also Tomra, Astra Zeneca, Deutsche Telekom, Telefónica, British Airways, to name only a handful of the most recent ones.
Conflicting views on the Google/ITA Software deal
Last week I mentioned here the White Paper issued by the American Antitrust Institute on Google´s proposed acquisition of ITA Software. As you will recall, the AAI concluded that the deal would give rise to competitive concerns that made antitrust intervention necessary. As practically all Google-related debates, this one is fast getting huge, and extremely interesting.
On the one hand, the anti-Google “Fair Search” coalition has created a web page stating all the reasons why the deal would harm consumers in every conceivable way. You may or may not agree with it, but one must admit that they´re doing a pretty good job in speading their message around (this is a consequence of what I meant when I said here that Google has tough and very powerful competitors, who have the incentives and the means to present a fierce battle in as many fronts as possible).
We´ve given you the link to the AAI´s White Paper and to the Fair Search web page, both of which favor close scrutiny of this transaction. The picture would not be complete if we didn´t direct you to some of the arguments explaining why the acquisition of ITA by Google would actually be procompetitive. Daniel Crane, a Professor at Michigan Law School, has just written a guest post on the blog Techcrunch.com in which he does that exactly; he also sends a very clear message: “Let´s calm down on the Google-ITA deal” (thanks go to George Pedakakis for pointing us to it).
Crane´s main point is that “Google’s competitors naturally fear Google’s emergence as a formidable rival in travel search, but that is hardly a reason to block the transaction. Indeed, it’s a reason to approve the deal. The most likely scenario is that Google’s acquisition of ITA would allow Google a quick and efficient entry point into travel search that would expand consumer options and increase rather than decrease competition“. His post also responds to the main allegations put forward by those opposing the deal.
Now that you´ve a complete picture of the main positions in this debate we´d be happy to know about any thoughts our readers may have on this matter. Anyone?
Unrelated: We are also reporting more and important moves in the Brussels legal market: a bunch of great associates have also left Howrey to join Shearman&Sterling. Amongst them are some of the brightest young lawyers around (some of whom are also very good friends of ours), such as Mark English, Elvira Aliende, Louise Rabeux, or Marixenia Davilla.
And a chillin´leak: Julian Joshua is apparently headed to Steptoe & Johnson
It´s shocking to see how what until very recently was a top-notch practice at Howrey´s has disintegrated so quickly. Looking at the positive side: there will be more empty tables at L´arte di, which is were we constantly ran into each other at lunchtime..
Google News
Things are developing on the Google front, and for some reason the timing of the most significant developments is practically coincidental:
The complainants in the EU investigation on Google are as active as we had forecasted. A supplementary complaint has just been lodged before the European Commission by the French company 1plusV, which controls ejustice.fr, one of the original complainants. More on the content of the complaint here.
Almost in parallel, the Texas Attorney General disclosed on Tuesday some details on the information that it requested from Google a year ago concerning the operation of its search algorithm (see here ).
The new complaint and those revelations come at at moment of growing rumors on the likelihood of an early settlement. Apparently there have been a number of preliminary talks (including a meeting between Eric Schmidt and Commissioner Almunia), although the Commission has made clear that the investigation is ongoing. An offer of commitments on the part of Google seems to be the most sensible solution from Google´s standpoint it it wants to avoid entering into a never-ending legal battle with the Commission. In fact, Google´s CEO has been reported to be thinking along these lines (see here). As we´ve said before, I very much doubt that complainants and other of Google´s competitors would be satisfied; I bet that the case will be taken to Luxembourg no matter what, but given the Commission´s litigation record in art. 102 cases (and ultimately the Alrosa litigation) there´s no doubt Google would rather have the institution on its side.
Unrelated to the EU investigation, but also of interest is the fact that the American Antitrust Institute has published a white paper arguing that the DOJ should seriously consider challenging Google´s acquisition of ITA Software. It strikes me that the AAI, whose members should probably have very divergent views, has taken such a defined institutional position on this particular deal, but the paper makes an interesting read anyhow.
PS. Once again, all the info above has been found through Google News.
Chillin'Competition 