The EU competition investigation against Google search engine practices touches upon several hottest topics of the competition debate and provides insight into recent developments in competition law enforcement on technology-enabled markets. This paper is intended to identify possible abusive practices of with the web giant regard to specialized search market in order to assess the commitments accepted by DG Comp in January 2014.

The search engine is a two-sided type of market, the kind typical for user-sourced platforms on the Internet. It is also asymmetrical, which means that deterioration of service on one side of platform not necessarily has direct impact on the other side in a short term. No matter how strong Schumpeterian glasses we would use here, the market power of Google in the EU reveals characteristics of super-dominance due to high barriers to entry and extreme concentration.

Since the investigation is still ongoing, we can only assess the ‘concerns’ and ‘objections’ expressed so far by the Commission. Allegations of Google’s abuse confronted with tying and refusal to supply theories which seem prima facie applicable, do not stand the test defined in decisions of the Court of Justice. One has to look to the general definitions of exclusionary abuses to consider that the “undue diversion of traffic” constitutes an abuse – specifically, a sui generis type of favouring abuse.

In the light of the substantive analysis of Google’s conduct, the solution proposed by DG Comp in 2014 was unsatisfactory. On one hand the measures proposed were not consistent in addressing easily identifiable harm while containing also measures which severely intervene in the product design and can be only based on some other, novel and undocumented behavioural theory of harm. Furthermore, by proposing such solutions the Commission does not contribute to proper development of competition law, hence leaving space for legal uncertainty and possibly exceeding its mandate. This leads to the conclusion, that from systemic perspective Article 7 procedure is more suitable for cases which include novel theories, even if they involve dynamic new technologies markets.

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