February 27, 2014
Apparently, Commissioner Almunia continues to face sustained pressure from within the European Commission to reach an acceptable settlement to the Google competition case. Since publicly confirming on 5th February that he intends to accept Google’s latest round of proposals, representatives from within the Commission have expressed grave concern about the speed and prematurity of this decision.
The minutes of a Commission meeting published yesterday showed that Almunia was subject to intense questioning about his rationale to accept the commitments. Just one of the arguments put forward addressed the crippling impact his decision to accept untested commitments would have on small and medium enterprises (SMEs). Some Commissioners voiced a justifiable fear that an auction system that does not depend on the organic results of online searches but on the financial largesse of the providers is highly discriminatory against SMEs. In response, Almunia asserted that certain technical parameters of the system would ensure that SMEs would have access on non-disadvantageous terms and that the same provisions, with or without fees, would be applied to both Google’s services and those of its rivals. This claim, as written in the minutes, is categorically wrong because under the proposed arrangements, Google’s new businesses (like Google Shopping) will never have to pay.
Another interesting aspect of the minutes is that Almunia seems to have moved the goal posts. In reminding his colleagues about what the original competition concerns had been, he recalled the “more visible display of [Google’s] own specialised search services compared with those of its competitors”. But in fact the original concern, as stated by Almunia on May 21st 2012, was that “Google displays links to its own vertical search services differently than it does for links to competitors […] [and] this may result in preferential treatment compared to those of competing services, which may be hurt as a consequence.”
Obviously there is a big difference here. Preferential treatment can come in a variety of forms, and visibility is just one of them. Increased “visibility” of competitor services is certainly not sufficient to address the range of things Google does to give preferential treatment to its services. Had it been so, presumably the Commission would have pointed in that direction in 2012.
Almunia’s public statements in the last two weeks reveal signs of the pressure he is facing internally to rethink his decision. EurActiv quoted him this week as saying that the case is not yet closed and that “if one of the plaintiffs should discover a flaw in the concessions given by Google, we will of course examine it carefully”. The Wall Street Journal also cited him as stating that independently of the competition case, many other of Google’s practices warrant scrutiny by EU leadership, particularly in the areas of taxation, data protection and the handling of intellectual property.Chris Sherwood