Antitrust

In a month defined by landmark judgments, the EU Courts have set important precedents on the legality of self-preferencing and exclusivity clauses in the digital space:

• First the EU’s top court, the European Court of Justice, upheld a landmark €2.42 billion fine against Google in the Shopping case for abusing its dominant position in the online general search market by self-preferencing its own online comparison-shopping service.
• Just days later, the first-instance EU General Court overturned the €1.49 billion fine imposed in the Google AdSense for Search case, underscoring the need for the Commission to meet stringent, effects-based evidentiary standards.  Whether the Commission will appeal the decision to the ECJ remains to be seen.

These two judgments highlight the nuanced balance the EU Courts are striking in the evolving enforcement of antitrust rules in digital markets: supporting an innovative yet evidence-driven and highly context dependent approach.  High-profile cases can still fail without robust evidence of potential harm, even if similar conduct will be found unlawful in other contexts.

In light of the EU Digital Markets Act (which post-dates the original Commission decision in Google Shopping) and the ongoing consultation on the Commission’s Article 102 guidelines, what is next for tech enforcement in the EU?

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