ECJ's Google Shopping Judgment and its impact on private enforcement

In 2017, the Commission imposed a record fine of €2.42 billion on Alphabet and Google. The Commission essentially accused Google of abusing its dominant market position in the EEA in 13 national markets for general online search services by favouring the results of its own price comparison service – now called Google Shopping – over those of competing price comparison services on its general search results page via various measures.

The Commission held that Google’s conduct constituted abusive self-preferencing and this decision was initially upheld in 2021 by the European General Court (EGC) on the most relevant points, and now, on 10 September 2024, also by the European Court of Justice (ECJ).

It is a landmark judgment by the ECJ that is of significance for both public enforcement (see I. below) and private enforcement (see II. below) in Europe.

I. Public enforcement and self-preferencing as a standalone breach of the law against abusive practices

The judgment makes it clear that a dominant company’s preferential treatment of its own offerings over those of its competitors may constitute abusive conduct in its own right. The ECJ emphasises that not every instance of self-preferencing – not even that of a dominant company – is necessarily abusive. However, it is abusive if self-preferencing restricts competition on the merits and is thus likely to harm individual companies and consumers.

Further judgements in the coming years will certainly further refine the standard. In the present case, the Commission succeeded in proving that Google’s self-preferencing is a deviation from competition on the merits, with reference to Google’s substantial market power in general online searches (the market share was apparently stable at a very high level over the years), the particular market circumstances (the markets for general online search services are apparently difficult to contest) and because there were no objective justifications.

From the perspective of public enforcement, it is important to note that this proof does not require the very strict conditions for a refusal to grant access to an essential facility to be met. The ECJ argues this essentially on the grounds that this case is not about denying access to Google’s general search function, but about a case of setting unreasonable access conditions after access has already been granted. If the strict requirements on refusing access had been applied to self-preferencing, it would have been considerably more difficult to prosecute such cases.

The ECJ also made it clear that to prove a breach it is sufficient for the Commission to demonstrate potential restrictive effects on competition and that in principle the Commission is also free to use different methods of analysis to prove this if this is called for given the circumstances of the individual case.

The decision therefore gives EU competition authorities more leeway to investigate and prosecute comparable conduct as an independent form of abuse, namely as self-preferencing. Companies would therefore be well advised to scrutinise their practices in this regard.

II. Implications for private enforcement

The second pillar of effective enforcement of European competition law is private enforcement. In parallel to the proceedings, competing price comparison services such as Idealo and PriceRunner had already brought actions before national courts, which have awaited the long-anticipated ruling by the ECJ.

Google’s breach of competition due to abusive self-preferencing has now been definitively established. The same should also apply to the finding of a dominant market position as a key element of the decision. The decision is binding on German courts in civil proceedings, as also stipulated in the 2nd sentence of section 33b of the German Act against Restraints of Competition (Gesetz gegen Wettbewerbsbeschränkungen – GWB).

It seems obvious that the self-preferencing by Google’s price comparison service may have affected both competitors and market players at other market levels. Claimants generally benefit from a corresponding factual presumption recognised by the courts, even in cases that do not involve a cartel and where section 33a(2) of the German Act against Restraints of Competition therefore does not apply. In any case, the principle of effectiveness under EU law means that the requirements for proof of damage must not unduly impede the exercise of the right of every person to claim damages.

However, the amount of the claimants’ claim for damages is not fixed and must be assessed by the court in each individual case (see 1st sentence of section 33a(3) of the German Act against Restraints of Competition, which refers to section 287 of the German Code of Civil Procedure (Zivilprozessordnung – ZPO).

In addition to Idealo and PriceRunner, the Czech price comparison platform Heureka is also calling for compensation from Google. In the context of the action brought by Heureka before a Czech court, the ECJ clarified in a preliminary ruling in April 2024 that the limitation period for such claims can only begin to run when the breach of competition law has been completed and the injured party has obtained knowledge of the information necessary to bring an action. The ECJ also held that the limitation period must be suspended during a Commission investigation and any subsequent court proceedings.

Accordingly, with the ECJ’s judgment, suspension of the limitation period has now ended. Since the implementation of the Antitrust Damages Directive 2014/104, the usual limitation period is five years.

Furthermore, the Commission’s decision on Google’s dominant market position could also open the door to further Commission proceedings or legal claims by consumers and companies that are based on other cases of exploitation of this position, without being binding.

III. Sidebar: DMA

Private claims for fair access and, in the event of breaches, for damages against gatekeepers, can also be asserted under the Digital Markets Act (DMA). Even though the DMA lacks an explicit reference to private enforcement, it is nevertheless a cornerstone of European law: Where European law also leads to rights of individuals, the vigilance of individuals interested in safeguarding their rights – and individual enforcement of those rights – represents a further level of effective control. At the level of national law, the German legislators have strengthened the options for private enforcement of DMA obligations by means of the German Competition Enforcement Act (Wettbewerbsdurchsetzungsgesetz) (11th amendment to the German Act against Restraints of Competition), in that the Act against Restraints of Competition now extends the mechanisms and instruments standardised in section 33 et seq. of the Act against Restraints of Competition to breaches of the DMA in many cases.