OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 11 January 2024 (1)

Case C‑48/22 P

Google LLC,

Alphabet, Inc.

v

European Commission

(Competition – Abuse of a dominant position – Online general search services – Specialised product search services – Decision finding an infringement of Article 102 TFEU and Article 54 of the EEA Agreement – Leveraging abuse – Competition on the merits – Difference in treatment through self-preferencing – Dominant undertaking favouring the display of results from its own specialised search service – Potential exclusionary effects – Counterfactual analysis – Hypothetical as-efficient competitor)

I.      Introduction

1.        The appeal brought by Google LLC and Alphabet Inc. (‘the appellants’) is directed against the judgment of the General Court of 10 November 2021, Google and Alphabet v Commission (Google Shopping) (2) (‘the judgment under appeal’). In that judgment, the General Court essentially dismissed the action brought by the appellants against the Google Search (Shopping) Decision adopted by the European Commission on 27 June 2017 (3) (‘the contested decision’). In that decision, the Commission found that Google had abused its dominant position, within the meaning of Article 102 TFEU, on various national markets for online general search services and for specialised product search services. The abuse was found to have consisted in particular in the fact that, when displaying search results on its general results pages, Google places competing product comparison shopping services at a disadvantage to its own comparison shopping service. By their action, the appellants had claimed that the General Court should annul the contested decision and, in the alternative, reduce the fine imposed on them in that decision.

2.        The legal questions raised here, concerning Article 102 TFEU, are of great legal and practical importance.

3.        First, it is necessary to clarify the conditions under which a difference in the treatment of competitors by a dominant undertaking, in particular in the form of self-preferencing on digital markets, deviates from the (normal) means of competition on the merits and can thus be classified as abuse. Particularly contentious is the question as to whether the strict criteria for the recognition of abuse through the refusal of access to an ‘essential facility’, recognised in, inter alia, the judgment of 26 November 1998, Bronner (4) (‘the judgment in Bronner’), are applicable for that purpose.

4.        Secondly, it is necessary to specify further criteria for determining whether a practice infringes Article 102 TFEU. This includes an examination of whether and, if so, how the Commission must carry out a counterfactual analysis in order to demonstrate that that practice produces at least potential exclusionary effects. It must further be clarified whether demonstrating such an exclusionary effect in a case such as this requires the Commission to apply the as-efficient-competitor test. (5)

II.    Facts

A.      Background to the dispute

5.        The background to the dispute is described in paragraphs 1 to 20 of the judgment under appeal and can be summarised as follows.

6.        Google is a company based in Mountain View, California (United States), which offers, inter alia, various online search functions across the globe. The most famous of these is the general search engine accessible at www.google.com or at corresponding regional web addresses. Alphabet, also based in Mountain View, has since 2 October 2015 been the sole shareholder in Google and the parent of the group of companies to which Google, inter alia, belongs.

7.        Internet users can start a search process by entering search terms on Google’s website. The search results are sorted by relevance, on the basis of a number of criteria and the use of various algorithms, and then displayed.

8.        Of particular importance in the present case is the distinction between general and specialised searches for information on the internet. A general search may serve many purposes and be based on many terms. A specialised search, on the other hand, serves a specific purpose in relation to particular products, services, content or information. On the basis of the search terms entered by the user, Google carries out a general search, a specialised search or a combination of both searches and presents the results using algorithms.

9.        During the period at issue, Google was in competition with other search engine operators such as AltaVista, Yahoo, Bing or Qwant, some of which also offered specialised search services (‘internet search engines’). Some operators, such as Bestlist, Nextag, IdealPrice, Twenga, Kelkoo or Prix.net, also offered specialised comparison shopping search engines (‘comparison shopping services’).

10.      The contested decision and the judgment under appeal are concerned with product searches and the presentation of the results of such searches on Google’s general search results pages. In response to a product search, an internet search engine or a comparison shopping service displays various websites on which the product sought can be purchased. These may be the websites of merchants or sales platforms such as eBay or Amazon.

11.      In 2002 (in the USA) and 2004 (in Europe) Google began offering a separate product search facility additional to its general search service. A database fed by information provided by merchants and known as the ‘product index’ was used to sort and display search results by relevance on the basis of specific algorithms. These search algorithms were different from those that were used in online general searches, via a process known as ‘crawling’, to extract information from websites, index it, add it to Google’s ‘web index’, sort it by relevance and display it. To begin with, Google made specialised product searches possible on a separate website known as ‘Froogle’.

12.      From 2003 (in the USA) and 2005 (in Europe), Google integrated the results of specialised product searches into the general search results. Until 2007, product search results were grouped together and displayed in a separate, visually distinct ‘Product OneBox’, within the general search results. That box also contained links to merchants’ websites and the Froogle website, which offered a wider selection of merchants and sales platforms. In addition to the Product OneBox, the general search results also included links to the websites of other comparison shopping services.

13.      Google itself states that, in 2007, it changed the way in which product search results were presented in the general search results. It changed the Froogle website name to ‘Product Search’ and Product OneBox to ‘Product Universal’ and, later, to ‘Shopping Units’. It also supplemented the results of product searches with photographs and more detailed information, primarily on product prices and their rating by customers. General search results also displaying the websites of other comparison shopping services, on the other hand, continued to contain only a simple blue link, with no photographs or text. A mechanism by the name of ‘Universal Search’ made it possible to rank, on the general results page, products originating from the Product OneBox or Product Universal against general search results. From September 2010, Google made it possible in Europe for advertisers to enable internet users, by clicking on the advert text, to view photographs of the products searched for and the prices offered in a larger format than in the original text advert.

14.      In addition to the distinct visual presentation of product search results in Product Universal or Shopping Units and of general search results, in 2011, Google (according to the findings of the contested decision) (6) introduced special adjustment algorithms by the name of ‘Panda’. The Panda algorithm was applied only to general search results in order to sort these by relevance, but not to product search results from Google’s comparison shopping service prominently displayed in Product Universal or in Shopping Units.

15.      From 2013, Google’s internet search engine presented product search results as follows: The Shopping Units contained, under the heading containing the search term, a link to Google’s comparison shopping service, and, under the pictures of the products concerned, links to the websites of merchants and sales platforms. That presentation was supported by the display of photographs, prices and customer ratings. Links to other comparison shopping services, on the other hand, were displayed not in the Shopping Units but, as before, only as a simple blue link in the general search results.

16.      According to the Commission’s findings, as summarised in the judgment under appeal (and no longer disputed on appeal), (7) the consequence of applying, inter alia, the Panda algorithm was that the websites of other comparison shopping services were often displayed lower down the list of generic search results, since they referred only to the websites of other merchants and sales platforms but did not present their own content. However, those algorithms were not applied to Google’s comparison shopping service, even though it shared many common characteristics with competing comparison shopping services and, on account of these, it too was prone to demotion in the generic results. As a result, since Product Universal was introduced, results from Google’s comparison shopping service have appeared for the most part either above all of the general search results or below the first general results, which is to say in a highly visible position, the purpose of this, according to an internal e-mail from Google, being to ‘significantly increase traffic’. The visibility of links to other comparison shopping services was at its highest in late 2010, only to decrease suddenly and sharply in the United Kingdom, Germany, France, Italy and Spain following the introduction of the Panda algorithm. Their presentation continued to be confined to the display of a simple blue link, that is to say without additional photographs and information on products, prices and sellers. The fact that the Shopping Units, containing product search results from Google’s comparison shopping service, were not subject to the same ranking mechanisms, in particular the Panda algorithm, and, highlighted in a ‘Box’, appeared in a highly visible position at the top of the general search results, combined with the presentation of richer graphical features, including photographs and dynamic information, led, as Google had intended, to higher click-through rates by internet users and, therefore, to an increase in its revenue.

17.      It is the combination of the practices employed since 2008 which is alleged to have led to search results from Google’s own comparison shopping service being favoured on general results pages over search results from competing comparison shopping services (‘the alleged practices’) that forms the subject matter of these proceedings.

B.      Administrative procedure and the contested decision

18.      Since 2009, the Commission has received a number of complaints concerning Google’s practices as described above. On 30 November 2010, it initiated formal investigation proceedings under Article 2(1) of Regulation (EC) No 773/2004. (8) This led, on 13 March 2013, to the adoption by the Commission of a preliminary assessment under Article 9 of Regulation (EC) No 1/2003. (9) The offers to give commitments made by Google between April 2013 and January 2014 in response to the foregoing were rejected by the Commission after it had heard the complainants. On 15 April 2015, the Commission resumed the infringement procedure provided for in Article 7(1) of Regulation No 1/2003 and adopted a statement of objections addressed to Google. On 14 July 2016, the Commission adopted a supplementary statement of objections.

19.      The details of the course of the administrative procedure are set out in paragraphs 21 to 39 of the judgment under appeal.

20.      On 27 June 2017, the Commission adopted the contested decision.

21.      That decision concludes that Google abused its dominant position, within the meaning of Article 102 TFEU and Article 54 of the EEA Agreement, on the markets for online general searches and for specialised product searches. The abuse lies in the fact that, in search results generated by its own search engine, Google made results from its comparison shopping service more visually opulent than those from competing comparison shopping services and applied the Panda algorithm only to the latter. That practice had the effect of increasing data traffic from Google’s general search results website to its product search results website and reducing data traffic to the websites of competing comparison shopping services. This had a potentially restrictive effect on competition both on a number of national markets for online general search services and on the markets for specialised product search services. Since January 2008, the Commission has found such abuse to be present, from both a geographic and temporal point of view, and for a different period of time in each case, in a total of 13 EEA countries, namely in Belgium, the Czech Republic, Denmark, Germany, Spain, France, Italy, the Netherlands, Austria, Poland, Sweden, the United Kingdom and Norway.

22.      The Commission justifies those conclusions, in essence, as follows in the contested decision. (10)

23.      The Commission draws a distinction between two digital markets, the market for online general search services (‘the market for general search services’) and the market for online specialised product searches or comparison shopping services (‘the market for specialised product services’), both of which are national in scope. (11) With regard to the first market, the Commission states that the general search services offered on websites – in the sense of ‘dual’ platforms – compete with each other to encourage as many internet users as possible to make (free) use of them and in this way to increase demand from advertisers for (paid) commercial use. (12)

24.      The Commission identifies very high barriers to entry on the national markets for general search services. It takes considerable investment to be able to enter those markets. An internet search engine can function well only if enough users conduct a large number of searches. In addition, sufficient financing is conditional upon enough paid adverts being posted on that search engine’s website. Both of those features benefit the market leader and make it difficult for new suppliers to enter that market. (13) Since 2008, Google has held a dominant position on all national markets for general search services in the EEA – with the exception of the Czech Republic (where it has been dominant only since 2011). (14)

25.      With regard to the national markets for specialised product searches, the Commission states that the success of a comparison shopping service depends above all on the volume of data traffic generated, that is to say on the number of clicks made by internet users on the website concerned. A high volume enables comparison shopping services to encourage merchants to provide them with more data on their products, thus increasing the services they offer, and, in turn, to make those services more attractive to merchants, advertisers, internet users and potential buyers, thereby increasing their revenue. (15)

26.      According to the Commission, the alleged practices had the effect of reducing data traffic from Google’s general results pages to competing comparison shopping services and of correspondingly increasing traffic from those pages to its comparison shopping service. Approximately 95% of internet users’ clicks were on the first ten general search results on Google’s website, most of them on the first three to five, and thus generated the most data traffic. The lower positioning of their results is highly disadvantageous to competing comparison shopping services, (16) and the traffic thus lost cannot be effectively replaced by other sources of traffic. (17)

27.      In the view of the Commission, the alleged practices produced effects potentially restrictive of competition on the national markets for general search services and for specialised product search services. On the latter markets, those practices are capable of causing competitors to cease trading, adversely affecting innovation and restricting the ability of consumers to access the most relevant services. This adversely affects the competitive structure of those markets. On the markets for general search services, Google used the additional revenue generated in the field of specialised product searches to strengthen its general search services and thus to maintain its dominant position on those markets. (18)

28.      On account of those practices, the Commission imposed on Google a fine in the amount of EUR 2 424 495 000, for which Alphabet, as the sole shareholder in Google, is jointly and severally liable in the amount of EUR 523 518 000. (19)

C.      Procedure before the General Court and the judgment under appeal

29.      By an action brought before the General Court on 11 September 2017, the appellants sought the annulment of the contested decision. In the alternative, they claimed that the fine imposed on them should be annulled or reduced.

30.      The procedure before the General Court is set out in detail in paragraphs 79 to 118 of the judgment under appeal.

31.      In those proceedings, the Bureau européen des unions de consommateurs (BEUC), Infederation Ltd (‘Foundem’), Verband Deutscher Zeitschriftenverleger e. V. (‘VDZ’), BDZV – Bundesverband Digitalpublisher und Zeitungsverleger e. V. (‘BDZV’), Visual Meta GmbH, Twenga, the EFTA Surveillance Authority, Kelkoo and the Federal Republic of Germany were granted leave to intervene in support of the forms of order sought by the Commission. Computer & Communication Industry Association (‘CCIA’) was granted leave to intervene in support of the forms of order sought by the appellants.

32.      By the judgment under appeal, the General Court annulled the contested decision in so far as the Commission had found in that decision an infringement of Article 102 TFEU and Article 54 of the EEA Agreement through the abuse of Google’s dominant position on the 13 national markets for general search services. The General Court dismissed the action as to the remainder and confirmed the finding in that decision that Google had abused its dominant position on the 13 national markets for specialised product searches. In the exercise of its unlimited jurisdiction, it maintained in full the fine imposed on the appellants by the Commission.

III. Procedure before the Court of Justice and forms of order sought by the parties

33.      By document received at the Registry of the Court of Justice on 20 January 2022, the appellants lodged an appeal against the judgment under appeal.

34.      By document received at the Registry of the Court of Justice on 2 February 2022, the appellants requested that Annex 2 to their appeal, containing the contested decision in the version corresponding to Annex 1 of their application, be treated as confidential vis-à-vis the interveners. At first instance, the General Court had already granted a similar request for confidential treatment. By order of 22 March 2022, the President of the Court of Justice granted that request. (20)

35.      By document received at the Registry of the Court of Justice on 9 June 2022, PriceRunner International AB (‘PriceRunner’) applied, on the basis of the second paragraph of Article 40 of the Statute of the Court of Justice, for leave to intervene in support of the forms of order sought by the Commission. By order of 1 September 2022, the President of the Court of Justice granted that application. In that order, the confidential treatment of Annex 2 to the appeal was reserved vis-à-vis PriceRunner and the latter was allowed to submit a statement in intervention.

36.      By document received at the Registry of the Court of Justice on 17 June 2022, FairSearch AISBL applied, on the basis of the second paragraph of Article 40 of the Statute of the Court of Justice, for leave to intervene in support of the forms of order sought by the Commission. By order of 1 September 2022, the President of the Court of Justice dismissed that application.

37.      The appellants claim that the Court should:

–        set aside the judgment under appeal;

–        annul the contested decision or, in the alternative, refer the case back to the General Court for judgment;

–        order the Commission to pay the appellants’ costs and those incurred in connection with the proceedings before the General Court; and

–        order PriceRunner to pay the costs of its intervention.

38.      The Commission contends that the Court should:

–        dismiss the appeal; and

–        order the appellants to pay the costs.

39.      CCIA claims that the Court should set aside the judgment under appeal, annul the contested decision or, in the alternative, refer the case back to the General Court for judgment and order the Commission to pay the costs incurred in connection with its intervention.

40.      The EFTA Surveillance Authority contends that the Court should dismiss the appeal and order the appellants to pay the costs.

41.      BEUC contends that the Court should dismiss the appeal and order the appellants to pay the costs incurred in connection with its intervention in the appeal proceedings.

42.      Foundem contends that the Court should dismiss the appeal as manifestly inadmissible or unfounded in its entirety and order the appellants to pay the costs incurred in connection with its intervention.

43.      Kelkoo contends that the Court should dismiss the appeal as inadmissible in so far as it is directed against the findings of fact of the General Court and as unfounded as to the remainder, and order the appellants to pay the costs incurred in connection with its intervention.

44.      Ladenzeile (formerly, Visual Meta GmbH), BDZV and VDZ contend that the Court should dismiss the appeal in its entirety and order the appellants to pay the costs, including those incurred in connection with its intervention.

45.      Twenga contends that the Court should dismiss the grounds of appeal raised by the appellants, confirm the judgment under appeal and the contested decision and order the appellants to pay the costs.

46.      PriceRunner contends that the Court should dismiss the appeal and order the appellants to pay the costs incurred in connection with its intervention.

47.      At the sitting on 19 September 2023, the parties presented oral argument and answered the Court’s questions.

48.      In response to a question from the Court, the appellants, as recorded in the minutes of the hearing, withdrew the appeal in so far as it is directed against that part of the judgment under appeal by which the General Court had granted their application (paragraph 1 of the operative part).

IV.    Assessment

A.      Admissibility

49.      Foundem’s und Kelkoo’s claims that the appeal should be dismissed as (manifestly) inadmissible cannot succeed. Neither their written observations nor their submissions at the hearing provide any viable justification for that claim.

50.      In particular, Foundem’s contention that the appeal is based on a misleading or incomplete presentation of material facts, or on the impermissible reassessment thereof, does not satisfy the requirements recognised in case-law for demonstrating that an appeal is inadmissible. That is the case only where the appeal seeks a re-examination of facts or evidence which the Court of Justice does not in principle have jurisdiction to undertake on appeal. (21) This, however, is not true of any of the grounds of appeal put forward in these proceedings. What is more, it is not readily apparent from either Foundem’s or Kelkoo’s submissions whether and, if so, to what extent the alleged challenge to the General Court’s findings of fact, as raised on appeal, differs from the allegedly incorrect legal assessment of those facts.

51.      The appeal is therefore admissible.

B.      Grounds of appeal

52.      The appellants put forward four grounds of appeal.

53.      By the first ground of appeal, the appellants allege, in essence, that the General Court failed to have regard to the fact that Google was under no obligation to grant competing comparison shopping services non-discriminatory access to its internet search service, in particular to the ‘boxes’ intended for the product search service.

54.      By the second ground of appeal, the appellants allege that the General Court committed several errors of law in recognising that the contested decision demonstrated that Google’s conduct deviated from the means of normal competition on the merits.

55.      By the third ground of appeal, the appellants submit that the General Court committed errors of law in its assessment of the causal link between the alleged practices and their probable effects, in particular inasmuch as it failed to challenge the absence of a counterfactual analysis in the contested decision.

56.      By the fourth ground of appeal, the appellants accused the General Court of having committed an error of law in finding that the Commission does not have a duty to examine whether the alleged practices were capable of driving as-efficient competitors from the market.

C.      Abuse or method of competition on the merits (first and second grounds of appeal)?

1.      Preliminary remarks

57.      The first and second grounds of appeal concern whether the General Court erred in law in confirming the alleged practices as deviating from the means of normal competition on the merits and as therefore being abusive within the meaning of Article 102 TFEU. While the second ground of appeal has to do with several complaints relating to the distinction between competition on the merits and abusive conduct in general, the first ground of appeal is concerned with the specific question of the applicability of the criteria recognised in, inter alia, the judgment in Bronner (22) (‘the Bronner criteria’).

58.      The Court of Justice developed the Bronner criteria for the purpose of examining whether a dominant undertaking’s refusal to grant its competitors (non-discriminatory) access to an essential input, for example a licence for the use of an intellectual property right or infrastructure which it owns, is abusive. That case-law has long been referred to as the ‘essential facility case-law’. (23) As this case also shows, the scope of application of those criteria is highly contentious. Their application should, in my view, remain confined to the originally recognised cases of refusal of supply or access. If – as here – such a refusal is not present and it is simply that the conditions of supply or access are unreasonable or discriminatory, those criteria cannot properly be applied.

59.      Contrary to the order in which the General Court examined the fifth plea in law, (24) I will look first at the first ground of appeal (section 2) and then at the second ground of appeal (section 3) in order to examine whether the General Court was able to confirm the alleged practices as being abusive without erring in law.

2.      Applicability of the Bronner criteria (first ground of appeal)

(a)    Summary of the complaints raised under the first ground of appeal

60.      By the first ground of appeal, the appellants allege in essence that, in failing to apply the Bronner criteria (first part) and declaring them to be inapplicable (second part), the General Court erred in law, impermissibly replacing the reasoning contained in the contested decision. However, those criteria are applicable to any obligation on the part of a dominant undertaking to grant competitors access to an essential facility and, in principle, to all forms of unequal treatment. The Shopping Units displayed on Google’s general results page are a separate infrastructure which it has developed. The more favourable positioning of the results from its own comparison shopping service therefore concerns the question of access to that infrastructure which is unequal but in keeping with competition on the merits, for the purposes of the judgment in Bronner. Pursuant to the contested decision, however, Google must provide competing comparison shopping services with equal access to the Shopping Units. The General Court was wrong to dismiss that argument.

61.      Supported by its interveners, the Commission disputes the contention that the General Court replaced the reasoning on which the contested decision is based. It further counters, in essence, that the Shopping Units are not a separate infrastructure. Rather, these are part of Google’s general results page, to which it has already granted competing comparison shopping services access. In essence, the allegation put forward in the contested decision is aimed not at the question of access to a separate infrastructure but at Google’s practice of displaying search results from its own comparison shopping service on its general results page in a preferential position as compared with that afforded to results from competing comparison shopping services, a practice which is capable of excluding the latter services from the market. The Bronner criteria are not applicable either generally or to such a case of self-preferencing.

(b)    Findings of the General Court forming the subject of complaints

62.      The first ground of appeal relates the assertions contained in paragraphs 212 to 249 of the judgment under appeal, which, in response to the second part of the fifth plea in law, set out in essence the following findings.

63.      The General Court refers first to recitals 649 to 651 of the judgment under appeal, according to which the Bronner criteria are not applicable to the facts of the present case for three reasons. In the first place, abusive leveraging constitutes a well-established, independent form of abuse falling outside the scope of competition on the merits. In the second place, the alleged practices are not a passive refusal of access to Google’s general results pages, but active promotion inasmuch as its own comparison shopping service is afforded preferential treatment by comparison with competing comparison shopping services. In the third place, unlike in the situation that formed the subject of the judgment in Bronner, it is not necessary in this case that the dominant undertaking transfer an asset or enter into agreements with persons with whom it did not choose to contract, in order to bring the abuse to an end. (25)

64.      After setting out the Bronner criteria, including the criterion that access to essential facilities must be indispensable to maintaining or enabling competition, (26) the General Court considers whether the conditions under which Google grants competing comparison shopping services access to the general results pages of its general search service must fulfil those criteria. (27)

65.      In the first place, the General Court finds, with regard to, inter alia, Section 7.2.4.2 and recitals 662, 699 and 700(c) of the contested decision, that that decision seeks in essence to grant competing comparison shopping services the same access to the results pages of Google’s general search service – regardless of the type of results – as it previously reserved for Google’s comparison shopping service. (28)

66.      In the second place, in the light of recitals 341, 342, 344 and 649 to 652 of the contested decision, the General Court finds in essence that the Commission relied not on the Bronner criteria but on the case-law applicable to abusive leveraging in order to demonstrate the presence of abuse. It concluded that Google was leveraging its dominant position on the market for general search services in order to favour its own comparison shopping services on the market for specialised product search services, such favouring leading to the potential or actual foreclosure of competition on the downstream market. (29) The General Court goes on to say that ‘Google’s general results page has characteristics akin to those of an essential facility …, inasmuch as there is currently no actual or potential substitute available that would enable it to be replaced in an economically viable manner on the market’. It refers in this regard to paragraphs 170 to 173 of the judgment under appeal and Section 7.2.4 of the contested decision. According to these, search traffic from Google’s general results pages accounted for a large proportion of data traffic to competing comparison shopping services and cannot effectively or in an ‘economically viable’ manner be replaced by other sources of data traffic available to those services. The Commission therefore considered such traffic to be ‘indispensable’ to competing comparison shopping services. (30) Lastly, in Section 7.3 of the contested decision, it concluded that the alleged practices could ‘lead to the potential elimination of all competition’. (31)

67.      In the third place, the General Court explains somewhat ponderously that, while the alleged practices ‘are not unrelated to the issue of access’, they can nevertheless be distinguished in their constituent elements from a refusal to supply or grant access within the meaning of the Bronner criteria. Those criteria do not therefore have to be applied to independent conduct such as this, even if it may have the same exclusionary effects. (32) After all, a ‘refusal’ to grant access requires, first, that the refusal is express, that is to say, that there is a ‘request’ or in any event a wish to be granted access and a ‘refusal’ to grant it. Secondly, the exclusionary effect must be based principally on the refusal as such, and not on another practice, in the form of leveraging abuse, for example. Consequently, in the absence of an express refusal to grant access, practices which have comparable effects but, on account of their constituent elements that deviate from competition on the merits, constitute an independent infringement of Article 102 TFEU are not to be assessed by reference to the strict criteria laid down for such a refusal. (33)

68.      According to the General Court, moreover, all or at least most exclusionary practices are liable to constitute implicit refusals to supply, since they tend to make access to a market more difficult. Nonetheless, the Bronner criteria cannot be applied to all those practices. This, after all, would disregard the spirit and the letter of Article 102 TFEU, the scope of which is not limited to abusive practices relating to ‘indispensable’ goods and services within the meaning of that judgment. (34) What is more, in the case-law concerning issues of access to a service, such as that concerning margin squeezing and tied sales, [the Court of Justice has found that] it is not necessary to demonstrate that the condition as to indispensability is satisfied. (35)

69.      The General Court therefore considers the Bronner criteria to be inapplicable. (36) The difference in treatment which Google is alleged to have perpetrated through the use of leveraging is an independent form of abuse. (37)

70.      Finally, the General Court rejects Google’s argument that the obligation for an undertaking which is abusively exploiting a dominant position to transfer assets, enter into agreements or give access to its services under non-discriminatory conditions necessarily involves the application of the Bronner criteria. There can, after all, be no automatic link between the criteria for the legal classification of the abuse and the corrective measures enabling it to be remedied. Consequently, the criterion relating to the need to transfer assets or enter into agreements in order to bring an infringement to an end is not effective in the context of active infringements which, as in the present case, can be distinguished from a simple refusal to supply. (38)

(c)    Assessment

(1)    Is unequal treatment through self-preferencing an independent form of abuse?

71.      The General Court’s – somewhat ponderous and redundant – assertions in paragraph 212 et seq. of the judgment under appeal are new to the extent that this is the first time that a difference in treatment in the form of self-preferencing by a dominant undertaking through the use of leveraging has been expressly classified in case-law as abuse within the meaning of Article 102 TFEU. As I will show below, however, that interpretation can be founded on the criteria for applying the concept of abuse which have been developed in previous case-law and is not therefore indicative of an error of law.

72.      The alleged practices consist, in essence, in the fact that Google exploited its – undisputed – dominant position on the upstream market for general search services, through leveraging, in order to give its own comparison shopping service a competitive advantage over competing comparison shopping services on the downstream market for specialised product search services, on which it did not hold such a position. That advantage was based on its practice of favouring its own comparison shopping service on the general results page when internet users submitted specialised product search queries. By using special algorithms, in particular the Panda algorithm, Google presented search results from its comparison shopping service at the top of its general results page and – using attractive image and text information – highlighted them in Shopping Units. Search results for competing comparison shopping services, on the other hand, appeared only lower down on that page, as a blue link. Equally undisputed is the fact that the Commission demonstrated and the General Court confirmed that those practices had a lasting influence on user behaviour and data traffic that was beneficial to Google and detrimental to competing comparison shopping services. In Sections 7.1 and 7.2 of the contested decision, that difference in treatment through self-preferencing is classified as an independent form of abuse. (39) That decision takes as its basis in this regard the case-law on abuse through the use of leveraging. (40)

73.      As I will show below, those alleged practices constitute a deviation from the means of competition on the merits which cannot be called into question on the basis of the Bronner criteria.

74.      To that end, I will first examine the legal criteria developed by case-law in connection with the concept of abuse within the meaning of Article 102 TFEU, and, in particular, the unequal treatment of competitors by an undertaking holding a dominant position on the market (section 2). Next, I will look at Google’s argument that such a difference in treatment is capable of constituting abuse only if the Bronner criteria are met (section 3). Thereafter, I will examine in detail the complaints raised against the findings in paragraph 212 et seq. of the judgment under appeal (section 4).

(2)    General criteria for assessing abuse through the unequal treatment of competitors

75.      The starting point for identifying the relevant criteria for determining a deviation from the means of competition on the merits and, thus, abuse is Article 102(c) TFEU. That provision expressly governs a special case of unequal treatment by an undertaking in a dominant position. It states that abuse may, in particular, consist in ‘applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage’.

76.      That defining example refers first and foremost to discrimination between different trading partners or competitors of the dominant undertaking. (41) It is settled case-law, however, that the cases governed by points (a) to (d) of that provision do not represent an exhaustive list of abusive practices. (42) Forms of unequal treatment which are similar to, and as harmful to competition as, that specific defining example may therefore, in principle, be classified as abusive.

77.      On the one hand, that premiss corresponds to the recognised principle that an undertaking in a dominant position has a special responsibility not to allow its behaviour to impair genuine, undistorted competition in the internal market. (43) On the other hand, abuse of a dominant position within the meaning of Article 102 TFEU is an objective – albeit indeterminate – concept, the conditions for which must be demonstrated on a case-by-case basis. According to settled case-law, it relates to conduct which, on a market where the degree of competition is already weakened precisely because of the presence of the undertaking concerned, through recourse to methods different from those governing normal competition on the merits between economic operators, has the effect of hindering the maintenance or growth of the degree of competition still in existence. (44) The examination of whether the practice of such a dominant undertaking is abusive or consistent with the means of competition on the merits must take into consideration all of the circumstances of the case. (45)

78.      The first ground of appeal therefore raises the question as to whether the difference in treatment through self-preferencing of which Google is accused is a practice, comparable to the defining example given in Article 102(c) TFEU, which puts competing comparison shopping services at a competitive disadvantage in a way which deviates from the means of competition on the merits. Google, on the other hand, takes the view in the context of the first ground of appeal that this question can be answered in the affirmative only if the Bronner criteria for a refusal to supply or grant access, which must be interpreted narrowly but are not met in this instance, are cumulatively present.

79.      I consider that argument to be untenable.

80.      The Bronner criteria typically concern a situation in which a dominant undertaking refuses to grant its competitors access to infrastructure developed by that undertaking for the purposes of its own business owned by it. It follows from case-law that such a refusal may constitute abuse provided, in the first place, that that refusal is likely to eliminate all competition on the relevant market on the part of the entity applying for access, in the second place, that it is incapable of being objectively justified, and, in the third place, that that infrastructure, in itself, is indispensable to the exercise of the competitor’s business too, inasmuch as there is no actual or potential substitute for it. (46) With reference to the existence of such exceptional circumstances, the Court of Justice, in its judgment in Magill, had previously recognised similar criteria as being applicable to a refusal to supply or a refusal to grant a licence by the holder of an intellectual property right. (47)

81.      In keeping with the Court of Justice’s previous case-law, I take the view that the Bronner criteria should be applied within narrow limits and only to comparable cases of refusal of access or supply. However, they are not applicable to practices such as those at issue here, which, as I will show in point 88 et seq. below, are not comparable to such a refusal but, in particular because of their unreasonable and discriminatory nature, nonetheless deviate from the means of competition on the merits.

82.      Next, I will explain why the General Court was ultimately able to conclude, without erring in law, that those criteria are not applicable in this instance.

(3)    No special case of abuse through a refusal of access or supply (Bronner criteria)

83.      As is recognised by case-law, the strict Bronner criteria owe their establishment to the special circumstances of a refusal of access or supply and, in the light of the objectives which they pursue, have only a very limited scope of application. (48)

84.      After all, those criteria are exceptional in nature and are not generally suitable for establishing the presence of abuse. (49) In the special case of such a refusal, they are intended to allow for an appropriate balance to be struck between the fundamentally exclusive use of an (intellectual) property right and the contractual freedom enjoyed by the dominant undertaking, on the one hand, and the enablement or maintenance of competition, on the other.

85.      As the General Court also states in paragraph 217 of the judgment under appeal, the strict Bronner criteria, in particular that of indispensability and that relating to the risk of eliminating all competition, are the specific expression of two conflicting objectives. (50)

86.      On the one hand, those criteria take into account the requirement to protect the fundamental right and the freedom of the (dominant) undertaking to choose its trading partners and dispose of its property. After all, every obligation which Article 102 TFEU imposes on that undertaking to grant access or to supply to its competitors comes with an interference with that right and that freedom and must therefore be carefully weighed up and justified. (51)

87.      On the other hand, criteria less stringent than the Bronner criteria for recognising abuse in the form of a refusal of access or supply would themselves be liable to impose an undue restriction on competition, also to the detriment of consumers. An undertaking’s original incentive to invest in the facilities or (intellectual) property rights it has developed will be stimulated or preserved only if it is allowed to exploit those facilities or rights exclusively for itself. (52) In other words, that incentive is an essential driver for the very investment and innovation that serve to promote the competitive process. However, an obligation to grant access or to supply which is imposed by Article 102 TFEU could reduce or even destroy that incentive both for the undertaking in a dominant position and for its competitors. It would after all allow competitors to share in the fruits of such investments or innovations on the part of the dominant undertaking, without having to make their own investment in the development of a competing infrastructure. This practice, also known as free riding, is therefore capable of having long-term adverse effects on competition, including consumer welfare. The short-term promotion of competition based on an obligation to grant access or to supply cannot make up for such adverse effects. (53) It is also important to take into account in this regard that the main purpose of Article 102 TFEU is to safeguard competition as a whole, including the interests of consumers, not the interests of individual competitors. (54)

88.      In the light of the rationale that so informs the Bronner criteria, I cannot see why the classification under competition law of the alleged practice, that is to say unequal treatment through self-preferencing, has to have such strict criteria applied to it in order to be capable of supporting a finding of abuse. This would, moreover, unduly restrict the practical effectiveness of Article 102 TFEU. (55)

89.      On the contrary, the Court of Justice has already held that those criteria do not apply where – unlike in the case that formed the subject matter of the judgment in Bronner – a dominant undertaking already grants access to its infrastructure or, as in the telecommunications sector, is even obliged to do so by law, but subjects such access to unreasonable conditions. Such practices may therefore be independent forms of abuse provided that they give rise to at least potentially anticompetitive effects, or even exclusionary effects, on the relevant market. That is all the more likely to be the case where access to such infrastructure, to a particular service or to a particular input is indispensable to allowing competitors of the dominant undertaking to operate profitably on a downstream market. (56)

90.      In my view, the self-preferencing of which Google is accused constitutes an independent form of abuse through the application of unreasonable conditions of access to competing comparison shopping services, provided that it has at least potentially anticompetitive effects (see point 159 et seq. below). The Bronner criteria are not applicable to such a form of abuse.

91.      Contrary to what the appellants argue, after all, there is no refusal of access or supply within the meaning of the Bronner criteria. Neither does the non-application of those criteria have the effect of unreasonably restricting Google’s right of ownership in the infrastructure of its general search service, let alone of detracting from its willingness to invest or innovate. On the contrary, the parties intervening in support of the Commission have convincingly argued, principally at the hearing, that they never asked Google to be given access to the Shopping Units boxes as an allegedly separate infrastructure, or to enter into an agreement in this regard. On the contrary, they asked for the boxes to be done away with and for a return to the original practice of presenting and ranking search results exclusively by relevance to the search criteria entered by internet users.

92.      As the General Court held without committing an error of law in paragraphs 177 and 178 of the judgment under appeal, Google’s business model is based, rather, on offering a fundamentally open infrastructure designed to attract a maximum number of internet users, and to generate a maximum volume of data traffic, in order to achieve the positive network effects necessary to its economic success. Consequently, in keeping with the logic of its business model, it has always granted competing comparison shopping services access to its general results page. By means of the alleged practices, however, it presented results from those services, inter alia by applying special algorithms that were not applicable to its own comparison shopping service, in such a way and in such a low position that they were generally of no interest to internet users. In other words, that unequal treatment by self-preferencing was based on unreasonable conditions of access, within the meaning of the case-law mentioned in point 89 above, and, in exerting a misleading influence on user behaviour, had a negative impact on the profitability of the activity of competing comparison shopping services on the downstream market for specialised product search services. As both the Commission and the General Court rightly note, (57) that practice was perpetrated by recourse to leveraging, whereby Google exploited its dominant position on the market for online general search services in order to gain a competitive advantage on the downstream market for specialised product search services, on which it did not (yet) hold such a position.

93.      The considerations set out in paragraph 212 et seq. of the judgment under appeal are therefore, in conclusion, not open to objection.

94.      As is also apparent from paragraph 234 et seq. of the judgment under appeal, the foregoing conclusion is confirmed in particular by the previous case-law on unreasonable conditions of access or supply which further lead to unequal treatment between the dominant undertaking and its competitors.

95.      The present case of self-preferencing exhibits some proximity to the cases involving the ‘margin squeezing’ of competitors. (58) In these cases, a vertically integrated telecommunications undertaking occupying a dominant position on the upstream market exploits the fact that its competitors on the downstream market are dependent on its access services – specifically, on access to local loops – and must pay a charge for those services. Through its pricing practices and the privileged, in particular cheaper, access it enjoys, that undertaking is able to make its services on the downstream market available to end customers for lower prices which its competitors, because of the higher access costs, cannot match on that market without making a loss, even if they are just as efficient. (59) This squeezes their margins to such an extent that they can no longer operate efficiently and are eventually forced out of the market. More specifically, these are abusive pricing practices by the dominant undertaking which stem ultimately from unequal treatment between that undertaking and its competitors in relation to conditions of access to an input that is essential to business on the downstream market.

96.      Even though they do not entail abusive pricing, the alleged practices at issue here are eminently comparable to the practices described above, as the Commission also submits. As stated in point 72 above, after all, Google used its dominant position on the upstream market for online general search services in order to give its own comparison shopping service a competitive advantage, and to put competing comparison shopping services at a disadvantage, on the downstream market for specialised product services. The latter services, however, according to the – no longer disputed – findings of the Commission and the General Court, were dependent on data traffic from Google’s general search results page in order to be economically successful and able to remain on that market.

97.      As the Commission and those intervening in its support have argued, moreover, the concomitant diversion of data traffic was not based on the better quality of Google’s comparison shopping service. It resulted rather from the self-preferencing and leveraging effected through Google’s general results page, in other words from the exploitation of its dominant position on the market for online general search services. (60) This is confirmed by the fact, mentioned in recital 343 of the contested decision, that the comparison shopping service originally offered by Google on a separate website Froogle was not successful and only the alleged practices demonstrably changed that situation. Accordingly, the Commission states in recital 380 et seq. of the contested decision that, since Google’s comparison shopping service shared many features with competing comparison shopping services, it would have been prone to the same demotions in the general search results if the adjustment algorithms had been applied to it too. (61)

98.      This form of difference in treatment through self-preferencing therefore constitutes a practice which deviates from the means of competition on the merits and is abusive to the extent that it is capable of adversely affecting competition (see point 159 et seq. below).

99.      I will now explain in detail why the complaints raised under the first ground of appeal against the relevant findings of the General Court (and the Commission) are untenable.

(4)    Complaints under the first ground of appeal, considered in detail

(i)    First part of the first ground of appeal

100. By the first part of the first ground of appeal, the appellants accuse the General Court of having impermissibly substituted itself for the Commission in paragraphs 224 to 228 of the judgment under appeal. In those paragraphs, the General Court, notwithstanding the lack of any evidence in the contested decision, wrongly distinguished the present case from that underlying, inter alia, the judgment in Bronner. It therefore committed an error of law in recognising that Google has a duty to grant competing comparison shopping services non-discriminatory access to its online search service, in particular to the ‘boxes’ designed for the product search service. In addition, the General Court impermissibly substituted the assertions complained of for reasons given in the contested decision.

101. I consider this first part of the ground of appeal to be unfounded in its entirety.

102. In the assertions complained of, the General Court finds, in the first place, that Google’s general results page has characteristics akin to those of an essential facility, (62)in the second place, that the Commission considered the data traffic generated by that page to be indispensable to competing comparison shopping services, (63) and, in the third place, that it had concluded that the alleged practices could lead to the potential elimination of all competition. (64)

103. It is true that the finding that Google’s general results page has characteristics ‘akin to those of an essential facility’ is not to be found verbatim in the contested decision. This, however, is only the General Court’s initial independent assessment of the essential justification for the presence of abusive conduct which the Commission sets out in recitals 341 to 343, 444 et seq. and, in particular, 539 et seq. of that decision. The General Court goes on to elaborate on that assessment in paragraphs 225 to 227. The assertions contained in paragraph 224 of the judgment under appeal must also be read in that context. According to those paragraphs, after all, there is no economically viable alternative to the data traffic from Google’s general results page. (65) The General Court’s assessment that the data traffic from that results page comes close to having the status of an essential facility or input cannot therefore be regarded as an impermissible substitution for the reasoning given in the contested decision.

104. The same is true of the assessment contained in paragraph 227 of the judgment under appeal, to the effect that the data traffic from Google’s general results page is ‘indispensable’ to competing comparison shopping services. Contrary to the impression given by the appellants, this is not a (legally erroneous) application of the criterion of indispensability within the meaning of the judgment in Bronner. (66) By using the term ‘indispensable’ in paragraphs 227 and 234 (in fine) of the judgment under appeal, the General Court is referring rather to the criteria used by the case-law cited in point 89 above in order to establish abuse in the form of unreasonable conditions of supply. According to that case-law, after all, those conditions may be abusive in particular if access to an infrastructure, a service or an input is indispensable to the dominant undertaking’s competitors from the point of view of being able to operate profitably on a downstream market.

105. Consequently, the General Court did not impermissibly replace the reasons given in the contested decision either. First, that decision also refers, albeit not so explicitly as the General Court, to the aforementioned case-law in order to classify the alleged practices as abusive. (67) Secondly, in recital 542 et seq. of that decision, the Commission sets out in detail the reasons why it considered the data traffic from Google’s general results page to be irreplaceable, and therefore ‘indispensable’, to competing comparison shopping services. What is more, the General Court also refers to this in paragraph 219 of the judgment under appeal.

106. Finally, the third – barely substantiated – complaint under the first part of the first ground of appeal is also unfounded.

107. According to that complaint, the General Court was not entitled to find, in paragraph 228 of the judgment under appeal, that, in Section 7.3 of the contested decision, the Commission had concluded that the alleged practices could lead ‘to the potential elimination of all competition’. It is true that that conclusion does not exactly reflect the content of recital 589 et seq. of that decision, in which the Commission sets out in detail the reasons why those practices have potential anti-competitive effects on the markets for specialised product searches. (68) However, recital 594 of the contested decision, to which the General Court expressly refers, states that the alleged practices are capable of causing competing comparison shopping services to cease their product search services. (69) Even though the General Court’s rephrasing of it is somewhat exaggerated, that statement can be construed in the sense of a potential elimination of competition. Therefore, it cannot be said that the reasons given in that decision were inadmissibly replaced.

108. In so far as the appellants thereby seek to criticise the Commission and the General Court for having committed an error of law in applying the Bronner criteria in this way, the fact that those criteria are not applicable here (see point 75 et seq. above) is a sufficient basis on which to dismiss that complaint as unfounded.

109. Consequently, the first part of the first ground of appeal must be dismissed.

(ii) Second part of the first ground of appeal

110. By the second part of the first ground of appeal, the appellants accuse the General Court of having committed several errors of law in paragraphs 229 to 248 of the judgment under appeal. They contend that, in those paragraphs, it wrongly held the Bronner criteria to be inapplicable, even though the contested decision imposed an obligation on Google to grant access.

111. By their first complaint, the appellants argue that, in paragraphs 237 to 240 of the judgment under appeal, the General Court erred in law in distinguishing the difference in treatment found to be present from a case of refusal of access. Contrary to the assumption in paragraph 239 of that judgment, the alleged practices constitute a special case of such a difference in treatment. The Shopping Units boxes are a separate facility which was developed by Google to enable it to present search results from its comparison shopping service more favourably but was not available to competing comparison shopping services. The latter had less favourable access to Google’s general results pages. Contrary to the finding reached in paragraph 232 of the judgment under appeal, therefore, the difference in treatment is not a practice which falls outside the scope of a refusal of access. That practice should, however, have had the Bronner criteria applied to it.

112. In the light of my submissions in point 75 et seq. above, that first complaint must be dismissed.

113. In those points, I explained why the Bronner criteria are not applicable to the present case of a difference in treatment through self-preferencing. This is specifically not  a case of refusal of access to an infrastructure, service or input within the meaning of the judgment in Bronner, but a case involving the configuration of unreasonable conditions of access or supply after access has already been granted.

114. Conversely, the distinction drawn by the appellants between access to Google’s general search results pages, on the one hand, and access to the separate Shopping Units boxes located there, which display only search results from Google’s own comparison shopping service, on the other, is artificial, if not arbitrary. VDZ, BDZV and Ladenzeile, in particular, argued this point convincingly at the hearing.

115. Even though they are prominently presented on Google’s general results pages, those boxes do not constitute a separate infrastructure in the sense of a results page which is entirely independent from a technical point of view, but (unlike Google’s earlier independent Froogle product search service) were, according to the now no longer contested findings of the Commission and the General Court, (70) specifically integrated by Google into its general search engine and the latter’s functionality in order to enable it to take advantage of the network effects generated there on the market for specialised product search services. The special algorithms the use of which enabled only results from Google’s comparison shopping service to be displayed were thus activated by users’ search requests on its general search engine. Consequently, the concomitant discrimination against competing comparison shopping services has to do with the way in which Google’s general results pages are accessed, but is not about access to an allegedly separate infrastructure in the form of the Shopping Units boxes. As stated in point 90 above, the parties intervening in support of the Commission argued credibly, in particular at the hearing, that they had never demanded access to those boxes, but had, on the contrary, called for them to be done away with.

116. Against that background, the conclusion drawn by the General Court in paragraph 240 of the judgment under appeal is not open to objection. According to that, the Commission did not need to establish that the Bronner criteria were met in order to make a finding of infringement. The General Court was therefore able to find, without erring in law, that the alleged practices constituted an independent form of leveraging abuse which expressed itself in ‘active’ behaviour in the form of positive discrimination in favour of search results from Google’s comparison shopping service.

117. The second complaint is simply a modified form of the first complaint and must also be dismissed as unfounded.

118. Under that complaint, the appellants accuse the General Court of having, in particular in paragraphs 219 and 243 of the judgment under appeal, impermissibly and in error of law described the contested decision as relating to conditions of access and supply rather than to the question of access to a separate infrastructure as such. For the reasons set out in points 113 to 116 above, that complaint is invalid.

119. By the third complaint, the appellants challenge the considerations set out by the General Court in paragraphs 232 and 233 of the judgment under appeal, where it found the Bronner criteria not to be applicable for the further reason that, in the present case, there was neither an explicit request for access nor an explicit refusal of access.

120. In those considerations, the General Court refers at least implicitly to recital 651 of the contested decision, according to which the Bronner criteria are not applicable to the alleged practices. Even though the reference to the absence of a request [for access] and a refusal of access is not matched by an express statement to the same effect in the grounds of the contested decision and is based on a somewhat formalistic point of view, it is by no means decisive with regard to the General Court’s conclusion, in itself free from any error of law, that the Commission was entitled to refrain from applying the Bronner criteria in the present case.

121. The third complaint is therefore ineffective and must also be dismissed.

122. The fourth complaint is directed against paragraph 240 of the judgment under appeal. In that paragraph, the General Court is alleged to have wrongly rejected the existence of a refusal to supply on the ground that the present case concerns not ‘passive’ conduct but an ‘active’ difference in treatment.

123. Since, for the reasons given in point 75 et seq. above, the alleged conduct does not involve a refusal of access within the meaning of the Bronner criteria, but a difference in treatment through self-preferencing which is ultimately attributable to, inter alia, the use of special algorithms, the fact that the General Court, on the basis of recital 650 of the contested decision, classifies that conduct as ‘active’ is not open to objection.

124. That complaint is therefore ineffective and must also be dismissed.

125. By the fifth complaint, the appellants object to the considerations contained in paragraph 246 of the judgment under appeal. In that paragraph, the General Court is alleged to have wrongly found that the measures adopted to bring the infringement to an end are irrelevant to the assessment of the legal nature of the alleged abuse. After all, such a link was established in recitals 699 and 700 of the contested decision in the context of the Commission’s allegation of a refusal to grant access to infrastructure.

126. As I have already stated, this complaint is again based on the false premiss that the alleged practice constitutes a refusal of access or supply within the meaning of the Bronner criteria.

127. This fifth complaint must therefore also be dismissed as being ineffective.

128. Consequently, the second part of the first ground of appeal, and the second ground of appeal in its entirety, must be dismissed.

3.      General assessment of the presence of a deviation from the means of normal competition on the merits (second ground of appeal)

(a)    Subject matter of the second ground of appeal

129. By the second ground of appeal, the appellants, supported by CCIA, submit that the General Court committed several errors of law. In the first place, it regarded the reasons given in the contested decision, which relate only to the supposed probable effects of the alleged practices, but not to those practices per se, as being sufficient to support the finding that there was a deviation from the means of competition on the merits. In the second place, to that end, the General Court relied on additional reasons, even though these were not contained in that decision. In the third place, the additional reasons do not in any event support its assessment. Furthermore, the General Court erred in law in not including the pro-competition aspects in that assessment, but examined them only as a possible justification.

130. The Commission considers that argument to be inadmissible, inasmuch as it is directed against findings contained in the contested decision on the alleged practices (first part) which the appellants did not dispute before the General Court. What is more, that decision contains sufficient reasoning to support the proposition that those practices deviated from competition on the merits, inasmuch as it assesses them in their economic context. The appellants’ attempt to challenge the General Court’s additional considerations (second part) is devoid of purpose. Those considerations did not replace the reasoning set out in the contested decision but simply elaborated on the explanation as to why the alleged practices deviated from the means of competition on the merits. Those considerations of the General Court are not open to objection from the point of view of their substance either (third part).

131. I will deal first with the admissibility of the first part of the second ground of appeal.

(b)    Admissibility of the first part of the second ground of appeal

132. The first part of the second ground of appeal relates in particular to the fifth plea in law, which the General Court considered first, in paragraph 136 et seq. of the judgment under appeal, under the heading ‘[Fifth plea in law and first part of the first plea in law, contending that the practices at issue are] consistent with competition on the merits’.

133. The summary contained in paragraph 122 of the judgment under appeal states that, by that plea in law, the appellants submitted in essence that the alleged practices are in fact quality improvements in Google’s general search service. Because the Commission failed to identify any elements of those improvements that represent a departure from competition on the merits, there cannot have been any abuse. Rather, the Commission imposed on Google a duty to grant its competitors access to an ‘essential facility’ indispensable to them, without satisfying the strict Bronner criteria. In addition, the General Court announces in paragraph 122 that, in that context, it will examine the argument that Google did not have an anticompetitive objective in implementing the specialised search results, because these constitute quality improvements in its search service. (71)

134. The first part of the second ground of appeal is directed in particular against the findings made in response to that fifth plea in law in paragraph 162 et seq. of the judgment under appeal. In those paragraphs, the General Court sets out the reasons why the Commission was entitled to conclude that the alleged practices deviated from the means of competition on the merits. Contrary to the view taken by the Commission, therefore, the fifth plea in law called into question the findings contained in recital 341 of the contested decision, according to which that conduct falls outside the scope of competition on the merits. The first part of the second ground of appeal takes up this point again.

135. It is settled case-law, however, that points of law examined at first instance can be argued again in the course of an appeal, provided that the appellant challenges the interpretation or application of EU law by the General Court. The appeal would otherwise be deprived of part of its purpose. (72)

136. The objection of inadmissibility raised by the Commission must therefore be dismissed and the first part of the second ground of appeal is accordingly admissible.

(c)    Merits of the first part of the second ground of appeal

137. In my opinion, however, the first part of the second ground of appeal is unfounded.

138. Contrary to what the appellants submit, it is not the case that the assertions contained in paragraph 162 et seq. of the judgment under appeal relate only to the likely effects of the alleged practices, but not to those practices per se. On the contrary, the General Court, having regard to the content of the contested decision, carries out a legal characterisation of those practices as such in order to substantiate the proposition that they deviate from the means of competition on the merits and thus satisfy the definition of abuse.

139. In those assertions, after all, the General Court relies in particular on recital 344 of the contested decision, in which the Commission finds a difference in the treatment of competing comparison shopping services in the form of Google’s favouring of its own comparison shopping service. (73) It further refers to the findings in the contested decision to the effect that that difference in treatment was capable of weakening competition on the market, on account of, first, the importance of the data traffic from Google’s general results page, secondly, the behaviour of users when searching online, and, thirdly, the fact that diverted data traffic accounts for a large proportion of traffic to competing comparison shopping services and cannot be effectively replaced by other sources. (74)

140. The General Court explains the foregoing in detail as follows.

141. First, it recalls how important data traffic and the positive network effects associated with it are to the economic success of a comparison shopping service, as is explained in recitals 444 to 450 of the contested decision; conversely, loss of traffic can lead to a downward spiral and, eventually, to market exit. (75) Next, the General Court considers the analysis of user behaviour set out in recitals 454 to 461 and 535 of the contested decision. According to that analysis, users typically concentrate on the first three to five search results and pay little or no attention to the remaining results, particularly those below the part of the screen that is immediately visible (the fold). (76) The General Court further relies on the findings contained in Sections 7.2.4.1 and 7.2.4.2 of the contested decision (77) in relation to the impact of data traffic which is diverted from Google’s general search results. This accounts for a large proportion of the traffic to competing comparison shopping services and cannot be effectively replaced by other sources such as text ads, mobile applications, direct traffic, referrals from affiliate websites, social networks or other search engines. (78)

142. The General Court concludes from this that the Commission, without committing any error of law, treated the importance of the data traffic from Google’s general search pages and the fact that that traffic is not effectively replaceable as relevant circumstances capable of characterising conduct falling outside the scope of competition on the merits. It did not merely identify leveraging but classified Google’s accompanying practices in law on the basis of relevant criteria. If the Commission validly demonstrated the favouring and its effects, it was therefore entitled to assume that that favouring was a departure from competition on the merits. (79)

143. Those assertions show that the General Court looked closely at the question of whether the Commission could lawfully conclude in the contested decision that the alleged practices as such – and not just their effects – were incompatible with the means of competition on the merits. Given that those practices were not only aimed at Google’s comparison shopping service but also had the effect of favouring it over competing comparison shopping services, the Commission took the view, which the General Court confirmed, that this was indeed the case. In the opinion of the Commission and the General Court, this is a legal characterisation, based on the Commission’s comprehensive findings of fact and evidence, of the question whether, regard being had to the way in which the digital markets work, Google complied with the means of competition on the merits or acted abusively.

144. That approach is compatible with the requirements recognised in case-law. According to this, the abusive nature of a practice must be assessed and demonstrated by reference to all of the relevant factual circumstances of the case. (80) Moreover, as the Commission submits, with reference to, inter alia, paragraph 152 of the judgment under appeal, the question as to whether a practice departs from the means of competition on the merits must be distinguished conceptually from that as to whether it is also capable of restricting competition, even though both criteria are constituent elements of the concept of abuse.

145. The appellants cannot successfully counter the foregoing with the argument that the General Court criticised recital 341 of the contested decision from the point of view of the complaint, raised by CCIA, as to infringement of the principle of legal certainty. (81) In the General Court’s view, after all, that recital, read in isolation, could be misconstrued as meaning that the Commission inferred solely from the (potential) exclusionary effects which it had established that the alleged practices deviated from competition on the merits. As explained in point 143 above, this is not an assessment which I can endorse. As the General Court itself finds, however, recital 341 of the contested decision must be read in conjunction with recital 342 of that decision. (82) Given that, in the latter recital, the Commission referred to the circumstances set out in points 139 to 141 above in order specifically to substantiate the deviation from the means of competition on the merits, the General Court ultimately dismisses the complaint raised by CCIA. (83) The appellants’ line of argument is therefore ineffective.

146. Consequently, the first part of the second ground of appeal cannot succeed and must be dismissed.

(d)    Additional reasons in the judgment under appeal (second part of the second ground of appeal)

147. By the second part of the second ground of appeal, the appellants allege that the General Court relied on additional reasons in support of the proposition as to deviation from the means of competition on the merits that were not contained in the contested decision. It thus committed an error of law in substituting its own considerations for those of the Commission.

148. Those additional reasons, it is contended, have to do, in the first place, with a stricter legal criterion for assessing ‘superdominant’ undertakings; (84) in the second place, with the assessment that, in the light of the fundamentally open infrastructure of Google’s search engine, the fact that some of its own specialised search results are promoted over competing search results is an ‘abnormality’; (85) and, in the third place, with the assessment that that practice is discriminatory. (86)

149. The appellants’ contention is correct inasmuch as, in paragraphs 176 to 185 of the judgment under appeal, the General Court sets out additional considerations which are not, at least in part, reflected in the reasoning given in the contested decision.

150. In the light of the fundamentally open infrastructure provided by Google, the General Court regards it as an abnormality in that context that search results from Google’s own comparison shopping service should be promoted over those from competing comparison shopping services. It falls to the person responsible for such a difference in treatment to justify it in the light of competition law. (87) This is also apparent from Regulation (EU) 2015/2120, (88) which imposes on online universal service providers a general obligation of equal treatment, that is to say without discrimination, restriction or interference with traffic. (89) That there was a deviation from the means of competition on the merits is all the more obvious given that the alleged practices – which came about following Froogle’s failure on the market for specialised product searches – are attributable to a change in Google’s behaviour on the market for general search services, on which it holds a ‘superdominant’ position. In the light of that position, its role as a gateway to the internet and the very high barriers to entry on the market for general search services, Google was under a particular obligation to ensure that its conduct did not impair competition on the associated market for specialised product searches. (90)

151. In my view, the second part of the second ground of appeal is nonetheless ineffective. After all, even if the General Court had thus, impermissibly, expanded upon or even replaced some of the reasons set out in the contested decision, (91) the assertions contained in paragraph 162 et seq. of that judgment, as set out in point 138 et seq. above, were in themselves sufficient to shield from objection the contested decision’s finding that the alleged practices deviated from the means of competition on the merits. (92)

152. Consequently, the additional reasons provided by the General Court – in this context at least and however they fall to be characterised in law – would have been unnecessary. With the exception of the finding that, in the light of the fundamentally open infrastructure provided by Google, the alleged practices are an abnormality and discriminatory, it is, moreover, untrue that there is no express support for those considerations in the reasoning contained in the contested decision.

153. This follows from the following.

154. In the first place, as the opening words of paragraph 180 of the judgment under appeal confirms, (93) the assessment of Regulation 2015/2010 – which is not considered in the contested decision – consists only of ancillary considerations which do not support the conclusion reached in paragraph 179 of that judgment. In the second place, the reference to Google’s ‘superdominant’ position on the various (national) markets for general search services in paragraphs 182 and 183 of that judgment is based at least implicitly on recitals 271 to 283 of that decision, in which the Commission established shares in those markets of well over 90% in most cases. In the third place, the assertion in paragraphs 181 and 184 of that judgment that Google changed its conduct on those markets following the termination of its specialised product search service Froogle can be traced back to the findings in recitals 343, 490 and 491 of that decision. In the fourth place, the assertions in paragraph 184 of that judgment merely repeat the findings concerning Google’s self-preferencing contained in recital 344. (94)In the fifth place, and finally, the conclusion reached at the end of paragraph 185 that the alleged practices go beyond competition on the merits refers only to the supporting considerations in paragraphs 170 to 173, but not to the General Court’s additional considerations, as complained of by the appellants, in paragraph 176 et seq. of that judgment.

155. The second part of the second ground of appeal must therefore also be dismissed.

156. Since the appellants’ complaints in respect of the second part are ineffective, there is no need to assess the third part of the second ground of appeal, that is to say the question as to whether the additional considerations in paragraph 176 et seq. of the judgment under appeal constitute in themselves an error of law. The same applies to the complaint that the General Court committed an error of law in that it did not include in its assessment the pro-competitive aspects [of Google’s conduct] which had been cited, but examined them only as a possible justification.

157. Finally, in so far as those complaints relate to the applicability of the Bronner criteria, a reference to the assertions contained in point 83 et seq. above is a sufficient basis on which to dismiss them.

158. The second ground of appeal must therefore be dismissed as unfounded in its entirety.

D.      Causal link between the alleged practices and potential restrictive effects on competition – Requirement of a counterfactual analysis (third ground of appeal)?

1.      Subject matter and admissibility of the third ground of appeal

159. By the third ground of appeal, the appellants accuse the General Court of having committed several errors of law in that it failed to challenge the absence of a counterfactual analysis in the contested decision. Such an analysis, they argue, is the only way of demonstrating that the potential restrictive effects on competition which are purported to be present are attributable, in essence, to the alleged practices and not to other circumstances.

160. That ground of appeal is directed against the findings in paragraph 368 et seq. of the judgment under appeal, made in answer to the first part of the third plea in law. In those paragraphs, the General Court dismisses the complaints to the effect that the Commission did not demonstrate that the alleged practices led to a decline in data traffic detrimental to competing comparison shopping services. According to the application, after all, that decline was due only to the effect – uncontested but unchallenged by the Commission – of the special adjustment algorithms. These, however, served only to improve the quality of search results. A causal link between the contested promotion of Google’s comparison shopping service, on the one hand, and the alleged exclusion of competing comparison shopping services, on the other, has not therefore been proved. The Commission should instead have determined how the data traffic would have evolved if the preferential positioning and presentation of search results from Google’s comparison shopping service in its Shopping Units had not taken place.

161. The third ground of appeal is divided into three parts. In the first place, it is submitted that, in paragraphs 377 to 379 of the judgment under appeal, the General Court erred in law in finding that that counterfactual analysis should have been carried out by Google and not by the Commission. In the second place, it is submitted that paragraphs 374 and 376 of that judgment are vitiated by an error of law, in that the General Court held there that, for the purposes of such an analysis, both of the elements comprising the alleged practices must be removed. In the third place, it is submitted that, in paragraph 572 of that judgment, the General Court erred in law in assessing the effects of, and the objective justification for, those practices.

162. Contrary to the view taken by some of the parties intervening in support of the Commission, the first and second parts of that ground of law are admissible. Those parts do not seek a reassessment of the facts or evidence by the Court of Justice. Rather, they call into question the lawfulness of the criteria which the General Court used in order to examine whether and, if so, how the Commission should have carried out a counterfactual analysis to demonstrate causality between a practice consisting of a number of elements and its possible anti-competitive effects.

2.      First part of the third ground of appeal

163. Under the first part, the appellants allege to begin with that, in recital 462 of the contested decision, the Commission did in fact find that the alleged practices had had actual and not only potential effects on competition. They led, after all, to a decrease in data traffic from Google’s general results pages to competing comparison shopping services. The General Court also relied on that finding in paragraph 519 of the judgment under appeal. The Commission should therefore have conducted a counterfactual analysis of those actual effects. Consequently, the General Court should not have assumed that the Commission proceeded on the premiss that those practices had had only potential effects.

164. This first part of the third ground of appeal is, in my view, manifestly unfounded.

165. For, on the one hand, in paragraphs 67, 228, 450, 454, 519 and 667 of the judgment under appeal, the General Court relies on Section 7.3 of the contested decision, (95) in which the Commission stated that the alleged practices had potential anti-competitive effects on several national markets. On the other hand, in paragraphs 438 et seq., and 518 et seq. of that judgment, it also proceeds on the basis of the principle that, in order to demonstrate abuse of a dominant position, the Commission had to prove only that the conduct in question had potential effects, it therefore being unnecessary to demonstrate that that conduct had actual restrictive effects on competition. What is more, the findings thus made by the General Court in response to the first part and the fourth part of the fourth plea in law have not been challenged by the appellants on appeal.

166. By contrast, the finding cited by the appellants, made in recital 462 of the contested decision, relates only to the – now uncontested – actual decrease in data traffic from Google’s general results pages to competing comparison shopping services. As the Commission rightly submits, the appeal is not directed against the corresponding findings in paragraphs 401 to 422 of the judgment under appeal, either. The reference to those paragraphs in paragraph 519 of that judgment cannot therefore be reinterpreted as meaning that the General Court proceeded on the premiss that the Commission wished or was required to demonstrate that the alleged practices had had actual effects on competition. The appellants’ argument that it was necessary to demonstrate a causal link with actual effects is therefore ineffective and must be dismissed.

167. The appellants, supported by CCIA, further accuse the General Court of having failed to acknowledge, in paragraphs 377 to 379 of the judgment under appeal, that the Commission should have conducted, and substantiated in the contested decision, a counterfactual analysis of the alleged actual or potential restrictive effects on competition produced by those practices, and, in so doing, of having reversed the burden of proof.

168. The General Court’s assertions in this regard are, admittedly, difficult to understand. In paragraph 377 of the judgment under appeal, it notes that identifying a counterfactual scenario may, in a situation such as that of the present case, be an arbitrary or even impossible exercise if that counterfactual scenario ‘does not really exist for a market that originally had similar characteristics to the market … in which those practices were implemented’. In principle, after all, a credible counterfactual scenario reflects an actual situation ‘that is initially similar but whose development is not affected by all of the practices at issue’. The General Court goes on to say, in essence, that, other than in a situation in which two actual developments can be compared to each other, an assessment of potential effects, although it must be realistic, necessarily describes a probable situation. In paragraphs 378 and 379 of that judgment, it rejects the argument that the Commission is under an obligation to respond to a counterfactual analysis put forward by the undertaking being challenged by either spontaneously or systematically establishing a counterfactual scenario. That would amount to an obligation on its part – which it does not have – to demonstrate that the alleged practices had actual effects. What is more, a counterfactual analysis put forward by that undertaking with a view to countering the Commission’s assessment of the potential effects of those practices must enable the full effects of those practices to be established, not only their partial effects.

169. In my view, those findings cannot be understood as meaning that, in principle, the General Court rejected the proposition that the Commission has an obligation to conduct a counterfactual analysis of the actual or potential effects of a given practice; nor are they indicative of an impermissible reversal of the burden of proof in this regard that is detrimental to the undertaking being challenged. They must, rather, be placed within the overall context of the General Court’s response to the arguments put forward in the first part of the third plea in law, and are to be understood in that context alone.

170. As is apparent in particular from paragraphs 372 and 374 of the judgment under appeal, the General Court rejects the complaint as to the absence of a counterfactual analysis on the ground, in essence, that that argument and the counterfactual scenarios put forward in support of it arbitrarily split a practice consisting of two indivisible elements. This, it states, is because the cumulative effects of that combination of elements – the promotion of Google’s comparison shopping service through the highlighted presentation of its search results in the Shopping Units boxes, on the one hand, and the application of special algorithms to demote results from competing comparison shopping services, on the other – cannot be assessed separately. In paragraph 376 of that judgment, the General Court therefore concludes that the only valid counterfactual scenario would have been one in which neither of those elements was used, as otherwise the cumulative effects of those practices would be only partially understood.

171. This shows that the General Court’s response to the application is contained primarily in paragraphs 372 to 376, whereas the assertions found in paragraphs 377 to 379 of the judgment under appeal, which start with the word ‘furthermore’, serve, as the Commission submits, only a supplementary or ancillary function.

172. The appellants and CCIA are nonetheless right to say that the distinction drawn in paragraph 377 of the judgment under appeal between counterfactual analyses depending on whether they relate to actual or potential effects is not valid. In both cases, after all, an actual development in the past viewed in the light of the infringement in question must be compared ex post with a hypothetical development viewed in the absence of that infringement. (96) What is more, it is not clear why, as the General Court may have thought, a systematic obligation on the Commission to establish a counterfactual scenario in the event of only potential effects would amount to requiring it to furnish evidence of actual effects.

173. Nonetheless, those assertions do not support the inference that the General Court did not consider the Commission to be under an obligation to take into account and, if appropriate, reject a viable counterfactual analysis by the undertaking being challenged which might call its findings into question. On the contrary, in paragraph 380 et seq. of the judgment under appeal, it looked closely at the question of whether the Commission was entitled to reject the analyses which had been submitted by Google in the administrative procedure (97) and establish a causal link between the conduct of which Google was accused and the decrease in data traffic from its general results pages to competing comparison shopping services. (98)

174. In so far as the appellants specifically challenge the assertions contained in paragraphs 377 to 379 of the judgment under appeal, their argument is ineffective and must be dismissed.

175. I will examine the question as to whether paragraphs 372 to 376 of the judgment under appeal are vitiated by an error of law but a counterfactual analysis in the sense argued by the appellants was nonetheless necessary in the context of the second part of the third ground of appeal.

176. The first part of the third ground of appeal must therefore be dismissed.

3.      Second part of the third ground of appeal

177. By the second part, the appellants, supported by CCIA, accuse the General Court of having committed an error of law in assuming that a counterfactual analysis may relate only to a combination of the two elements of the conduct of which Google is accused, as mentioned in point 170 above. It is submitted that paragraphs 374, 376 and 525 of the judgment under appeal are vitiated by an error of law because they misconstrue the concept of a counterfactual analysis, for two reasons. First, it is sufficient to remove only one of those elements, that is to say the positioning of results and their presentation in the Shopping Units boxes, in order to eliminate the abuse. Secondly, the General Court applied a criterion which is not in keeping with the requirement, recognised in case-law, that a counterfactual scenario must be realistic, plausible and likely. The requirement in paragraph 376 of that judgment that both elements be removed, including the special adjustment algorithms, goes beyond what is necessary, is unrealistic and impermissibly confuses the respective effects of the lawful and unlawful elements of that combination of practices.

178. I consider this second part of the third ground of appeal also to be unfounded.

179. As is apparent from the General Court’s findings in paragraphs 372, 417, 419 and 525 of the judgment under appeal, which are not contested in this regard by the appellants, the alleged conduct comprises two inextricably combined elements, that is to say, first, the use of special adjustment algorithms to demote only search results from competing comparison shopping services, and, secondly, the highlighted presentation in Shopping Units boxes only of results from Google’s comparison shopping service. Those two elements operate together to support Google’s self-preferencing. For it is only in combination that their influence on user behaviour is such as to cause data traffic to be redirected to this extent to Google’s own comparison shopping service.

180. Contrary to the appellants’ submission, that unbreakable link cannot be severed for the purposes of a counterfactual analysis of the causal link between the alleged practices and their (factual or potential) effects. Such an approach would not take into account the combined technical and economic effects of the two elements. It would, in particular, disregard their joint influence on user behaviour. After all, the increased number of clicks by users in favour of Google’s comparison shopping service comes not only from the preferential positioning and presentation of its search results in Shopping Units boxes, but also from the parallel, algorithm-controlled demotion and the less attractive presentation of search results from competing comparison shopping services, as a result of which such results escape the attention of users. The split counterfactual analysis favoured by the appellants would therefore be neither plausible nor realistic but, rather, arbitrary. (99)

181. The General Court was therefore able to find, without erring in law, in paragraph 372 of the judgment under appeal that ‘the effects of those combined [elements] cannot be analysed by isolating the effects of one [element] from those of the other [element]’. Neither is there any error of law in the assessment in paragraph 376 of that judgment to the effect that the only valid counterfactual scenario would have been one based on neither of those elements, ‘as otherwise the combined effects of those combined [elements] would be only partially understood’.

182. The appellants cannot counter the foregoing with the argument that the use of the special adjustment algorithms was not per se challenged by the Commission. This, as the General Court rightly found, is immaterial. It is, after all, the specific combination of the use of those algorithms in conjunction with the preferential presentation of product search results from Google’s comparison shopping service which made the potential harmful effects on competition established in the contested decision (100) possible in the first place.

183. Consequently, the findings contained in paragraphs 372 to 376 of the judgment under appeal are not open to objection.

184. The second part of the third ground of appeal must therefore also be dismissed.

4.      Third part of the third ground of appeal

185. It follows from the assessment of the first and second parts that the third part of the third ground of appeal cannot succeed either. This alleges that, in paragraph 572 of the judgment under appeal, the General Court erred in law in assessing the effects of, and objective justification for, the alleged practices.

186. On the contrary, in paragraph 572, the General Court was able, without erring in law, to conclude from its findings on the inseparability of the two elements of the alleged conduct that the potential harmful effects of that conduct on competition and on consumer welfare cannot be counteracted solely by any efficiency attributed to only one of those elements, that is to say the special algorithms. This is true whether specific efficiency gains from the use of the special adjustment algorithms per se are demonstrated or not. (101)

187. Consequently, the third part and the third ground of appeal in its entirety must also be dismissed as unfounded.

E.      Applicability of the as-effective-competitor test (fourth ground of appeal)?

188. By the fourth ground of appeal, the appellants accuse the General Court of not having challenged the fact that the Commission omitted to assess the effects of the alleged practices on as-efficient competitors. In accordance with the objective pursued by Article 102 TFEU, as recognised in case-law, restrictive effects on competition are generally shown to be present only if they are detrimental to existing or hypothetical as-efficient competitors. In the contested decision, however, the Commission did not examine the efficiency of competing comparison shopping services, or take into account such a hypothetical competitor. It is alleged that, in paragraph 538 of the judgment under appeal, the General Court therefore erred in law in finding that, in the absence of any price competition, the Commission was not under any obligation to apply the as-efficient-competitor test.

189. The Commission, supported by its interveners, argues in rebuttal that, in the absence of any price competition, a comparison with an existing or hypothetical as-efficient competitor was not necessary. Since Google is not accused of any abuse relating to price, it did not have to apply the as-efficient-competitor test. On the contrary, the Commission can adduce evidence of potential effects on competition in any form whatsoever, which it duly did in the contested decision.

190. The General Court addresses the restrictive effects on competition produced by the alleged practices in paragraph 518 et seq. of the judgment under appeal, and the as-efficient competitor test in paragraphs 538 to 543 thereof. In paragraph 527 of that judgment, it first confirms (102) that the Commission was right to find that those practices led to a decrease in data traffic to competing comparison shopping services and an increase in traffic to Google’s own comparison shopping service, and thus adversely affected the situation of a large group of its competitors to an extent sufficient to support a finding as to the presence of restrictive effects on competition. Next, in paragraphs 538 to 541 of the judgment under appeal, the General Court finds in essence that the Commission was not under an obligation to apply the as-efficient-competitor test for that purpose. It states that this makes sense only in the event of price competition, which is not present here. The Commission was therefore required to demonstrate only potential restrictive effects on competition produced by the alleged practices. (103) It is immaterial in this regard whether Google’s product search engine was more efficient than those of competing comparison shopping services.

191. In my view, the General Court thus found without erring in law that the Commission was not under an obligation to apply the as-efficient-competitor test.

192. The application of the as-efficient competitor test generally consists in examining whether the pricing strategy of a dominant undertaking is capable of driving a competitor which is as efficient as that undertaking from the market. (104) This necessitates a price-cost analysis which is generally based on the cost structure of the dominant undertaking itself. (105)

193. It is settled case-law that Article 102 TFEU is not intended to ensure that competitors which are less efficient than the dominant undertaking remain on the market. The efficiency protected by that provision may, by definition, lead to the departure from the market or marginalisation of competitors that are less efficient and so less attractive to consumers from the point of view of, among other things, price, choice, quality or innovation. (106)

194. However, that case-law should not be misunderstood as meaning that the activities of less efficient, in particular smaller, competitors that do not possess or cannot make up for the economies of scale or cost advantages of a dominant undertaking do not merit protection at all or have no role to play in maintaining functioning competition. (107)

195. On the contrary, depending on the structure of the market in question, and in particular on those where there are high barriers to entry, even a less efficient competitor can increase competitive pressure and thus influence the conduct of a dominant undertaking. (108) This is especially true where such a market structure makes it unlikely that another undertaking will be capable of being as efficient as the dominant undertaking. Moreover, particularly in the case where the presence of such an undertaking weakens competition on a market to such an extent that even as-efficient competitors cannot establish themselves there in the first place, the competitive pressure exerted by less efficient undertakings cannot be left out of account. For even that pressure is capable of ensuring that the market structure and the choices available to consumers do not deteriorate further because of the commercial conduct of the dominant undertaking, and thus serves the fundamental objective pursued by Article 102 TFEU of maintaining competition. (109) In such cases too, the Court of Justice has consistently held that the as-efficient competitor test is not applicable. (110)

196. Contrary to the appellants’ submission, therefore, the as-efficient-competitor test is not generally applicable, let alone an essential prerequisite for determining whether the conduct of an undertaking in a dominant position is in keeping with the means of competition on the merits. (111) The Court of Justice has also confirmed that understanding on a number of occasions, emphasising that, in principle, the competition authorities are under no legal obligation to apply that test. This, after all, is just one of a number of means by which it is possible to assess whether a price-related practice is capable of producing exclusionary effects. (112) What is more, in so far as that test is not applicable, neither the Commission nor the General Court can be compelled to consider arguments by the dominant undertaking in connection with its use. (113)

197. In particular, the scope of application of the as-efficient-competitor test should not be extended to practices which bear no relation to price competition, for which, according to the Commission’s Priorities Communication, that test was originally designed. (114) Assertions in case-law which are at least ambiguous in this regard should, in my view, be clarified, if not corrected. (115)

198. The alleged practices bear no relation to price competition. The General Court was therefore able to find, without committing an error of law, that the Commission was under no obligation to apply the as-efficient-competitor test to competing comparison shopping services or to corresponding hypothetical competitors in order to be able find that those practices produced potential exclusionary effects to their detriment.

199. The fourth ground of appeal is therefore unfounded and must also be dismissed.

F.      Interim conclusion

200. It follows from the foregoing assertions that the four grounds of appeal and, therefore, the appeal in its entirety must be dismissed.

V.      Costs

201. Consequently, the Court of Justice will make a decision as to costs, in accordance with Article 184(2) of the Rules of Procedure.

202. Under 138(1) of the Rules of Procedure, which applies to appeal proceedings pursuant to Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs of those proceedings if they have been applied for in the successful party’s pleadings. Since the Commission and the interveners supporting it have applied for costs, the appellants are to bear their own costs and pay the costs of the appeal proceedings and those incurred by the interveners.

203. Under Article 140(1) and (2) of the Rules of Procedure, which also apply to appeal proceedings, the Member States and the EFTA Surveillance Authority, which joined the proceedings as interveners, are to bear their own costs. What is more, under Article 184(4) of the Rules of Procedure, the Court of Justice may order an intervener at first instance who has not brought the appeal himself to bear his own costs only if he has participated in the written or oral part of the proceedings before the Court of Justice.

204. The decision must therefore be made to order the EFTA Surveillance Authority to bear its own costs. In the light of paragraph 5 of the operative part of the judgment under appeal, a decision as to costs in respect of the Federal Republic of Germany, which has not participated in the appeal proceedings, is not necessary.

205. Under Article 140(3) of the Rules of Procedure, which also applies to appeal proceedings, the Court of Justice may decide that an intervener other than those referred to in paragraphs 1 and 2 must bear his own costs. Since CCIA supported the forms of order sought by the unsuccessful appellants, it is to be ordered to bear its own costs.

VI.    Conclusion

206. In the light of the foregoing considerations, I propose that the Court of Justice rule as follows:

1.      The appeal is dismissed.

2.      Google LLC and Alphabet Inc. shall bear their own costs, the costs of the appeal and the costs incurred by the Commission, the Bureau européen des unions de consommateurs (BEUC), Infederation Ltd, Verband Deutscher Zeitschriftenverleger e. V., BDZV – Bundesverband Digitalpublisher und Zeitungsverleger e. V., Visual Meta GmbH, Twenga and Kelkoo.

3.      The EFTA Surveillance Authority and Computer & Communication Industry Association shall bear their own costs.

1      Original language: German.

2      T‑612/17, EU:T:2021:763.

3      Decision C(2017) 4444 final relating to a proceeding under Article 102 TFEU and Article 54 of the Agreement on the European Economic Area (EEA) (Case AT.39740 – Google Search (Shopping)).

4      C‑7/97, EU:C:1998:569, paragraph 37 et seq..

5      Also known as ‘the AEC test’.

6      See in particular recital 356 et seq. of the contested decision and paragraphs 59 et seq., 282 et seq. and 369 et seq. of the judgment under appeal.

7      Paragraphs 59 to 62 of the judgment under appeal; see also recital 371 et seq. of the contested decision.

8      Commission Regulation of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles [101] and [102 TFEU] (OJ 2004 L 123, p. 18).

9      Council Regulation of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101] and [102 TFEU] (OJ 2003 L 1, p. 1).

10      See also paragraphs 40 to 78 of the judgment under appeal.

11      Recital 154 et seq. of the contested decision.

12      See also paragraph 43 of the judgment under appeal.

13      Recitals 254, 269, 270 and 285 et seq. of the contested decision; see also paragraphs 46 and 47 of the judgment under appeal.

14      Recital 264 et seq. of the contested decision; paragraph 54 of the judgment under appeal.

15      Recital 444 of the contested decision; paragraph 64 of the judgment under appeal.

16      Recital 452 et seq. of the contested decision; paragraph 65 of the judgment under appeal.

17      Recital 539 et seq. of the contested decision; paragraph 66 of the judgment under appeal.

18      Recital 89 et seq. of the contested decision; paragraph 67 of the judgment under appeal.

19      Recital 710 et seq. and Article 2 of the contested decision; paragraph 78 of the judgment under appeal.

20      Order of the President of the Court of Justice of 22 March 2022, Google and Alphabet v Commission (C‑48/22 P, not published, EU:C:2022:207).

21      See, to this effect, the judgments of 3 September 2020, Vereniging tot Behoud van Natuurmonumenten in Nederland and Others v Commission (C‑817/18 P, EU:C:2020:637, paragraph 46), and of 22 June 2023, DI v BCE (C‑513/21 P, EU:C:2023:500, paragraph 53 and the case-law cited therein).

22      Judgment of 26 November 1998 (C‑7/97, EU:C:1998:569, paragraph 37 et seq.).

23      See, more recently, the Opinion of Advocate General Saugmandsgaard Øe in Deutsche Telekom v Commission and Slovak Telekom v Commission (C‑152/19 P and C‑165/19 P, EU:C:2020:678, point 56 et seq.) and the Opinion of Advocate General Rantos in Lietuvos geležinkeliai v Commission (C‑42/21 P, EU:C:2022:537, point 55 et seq.).

24      See paragraph 136 et seq. of the judgment under appeal.

25      Paragraph 212 of the judgment under appeal.

26      Paragraphs 213 to 217 of the judgment under appeal.

27      Paragraph 218 et seq. of the judgment under appeal.

28      Paragraphs 219 to 222 of the judgment under appeal.

29      Paragraph 223 of the judgment under appeal.

30      Paragraphs 224 to 227 of the judgment under appeal, with reference to recitals 285 to 305, 544, 568, 580 and 588 of the contested decision.

31      Paragraph 228 of the judgment under appeal, with reference to recital 594 of the contested decision.

32      Paragraphs 229 to 231 of the judgment under appeal, with reference to recital 649 of the contested decision.

33      See, to this effect, paragraphs 232 and 233 of the judgment under appeal, reworded by me so as to make them more readily understandable.

34      Paragraph 234 of the judgment under appeal, with reference to the Opinion of Advocate General Saugmandsgaard Øe in Deutsche Telekom v Commission and Slovak Telekom v Commission (C‑152/19 P and C‑165/19 P, EU:C:2020:678, paragraphs 85 to 89).

35      Paragraph 235 of the judgment under appeal, with reference to the judgments of 17 February 2011, TeliaSonera Sverige (C‑52/09, EU:C:2011:83, paragraphs 55 to 58); of 10 July 2014, Telefónica and Telefónica de España v Commission (C‑295/12 P, EU:C:2014:2062, paragraph 75); and of 17 September 2007, Microsoft v Commission (T‑201/04, EU:T:2007:289, paragraph 961).

36      Paragraph 236 of the judgment under appeal, with reference to the judgment of 26 November 1998, Bronner (C‑7/97, EU:C:1998:569, paragraphs 48 and 49).

37      Paragraphs 237 to 240 of the judgment under appeal, with reference to, inter alia, the Opinion of Advocate General Mazák in TeliaSonera Sverige (C‑52/09, EU:C:2010:483, paragraph 32), and the judgment of 25 March 2021, Deutsche Telekom v Commission (C‑152/19 P, EU:C:2021:238, paragraph 45).

38      Paragraphs 241 to 247 of the judgment under appeal.

39      See recitals 331 et seq., in particular recital 334, and 341 et seq. of the contested decision.

40      Judgment of 14 November 1996, Tetra Pak v Commission (C‑333/94 P, EU:C:1996:436, paragraph 25).

41      See, to this effect, the judgment of 19 April 2018, MEO – Serviços de Comunicações e Multimédia (C‑525/16, EU:C:2018:270, paragraphs 24 and 25 and the case-law cited therein). See also the Opinion of Advocate General Mazák in TeliaSonera Sverige (C‑52/09, EU:C:2010:483, paragraph 32).

42      Judgments of 14 October 2010, Deutsche Telekom v Commission (C‑280/08 P, EU:C:2010:603, paragraph 172); of 17 February 2011, TeliaSonera Sverige (C‑52/09, EU:C:2011:83, paragraph 26); and of 16 March 2023, Towercast (C‑449/21, EU:C:2023:207, paragraph 46).

43      Settled case-law; see, inter alia, the judgments of 30 January 2020, Generics (UK) and Others (C‑307/18, EU:C:2020:52, paragraph 153), and of 12 January 2023, Lietuvos geležinkeliai v Commission (C‑42/21 P, EU:C:2023:12, paragraph 76 and the case-law cited therein).

44      See, to this effect, the judgment of 12 January 2023, Lietuvos geležinkeliai v Commission (C‑42/21 P, EU:C:2023:12, paragraph 77 and the case-law cited therein).

45      See, to this effect, the judgments of 12 January 2023, Lietuvos geležinkeliai v Commission (C‑42/21 P, EU:C:2023:12, paragraph 78), and of 19 January 2023, Unilever Italia Mkt. Operations (C‑680/20, EU:C:2023:33, paragraphs 40 and 44 and the case-law cited therein).

46      See, to this effect, the judgments of 26 November 1998, Bronner (C‑7/97, EU:C:1998:569, paragraph 41); of 25 March 2021, Deutsche Telekom v Commission (C‑152/19 P, EU:C:2021:238, paragraph 44); and of 12 January 2023, Lietuvos geležinkeliai v Commission (C‑42/21 P, EU:C:2023:12, paragraph 79). See also the Opinion of Advocate General Rantos in Lietuvos geležinkeliai v Commission (C‑42/21 P, EU:C:2022:537, point 61).

47      Judgment of 6 April 1995, RTE and ITP v Commission (C‑241/91 P and C‑242/91 P, EU:C:1995:98, paragraph 50 et seq.). See also the judgment of 29 April 2004, IMS Health (C‑418/01, EU:C:2004:257, paragraph 35 et seq.).

48      See, to this effect, the judgments of 25 March 2021, Deutsche Telekom v Commission (C‑152/19 P, EU:C:2021:238, paragraph 45 et seq.), and of 12 January 2023, Lietuvos geležinkeliai v Commission (C‑42/21 P, EU:C:2023:12, paragraph 78 et seq.).

49      Advocate General Saugmandsgaard Øe summed this up neatly in the Opinion in Deutsche Telekom v Commission and Slovak Telekom v Commission (C‑152/19 P und C‑165/19 P, EU:C:2020:678, point 63): ‘The conditions laid down in Bronner subject the finding of an abusive practice to a particularly high legal standard. They represent, to some extent, a “peak” in the regulatory landscape of Article 102 TFEU’.

50      See, in short, the Opinion of Advocate General Rantos in Lietuvos geležinkeliai v Commission (C‑42/21 P, EU:C:2022:537, points 63 to 65).

51      See, to this effect, the judgment of 25 March 2021, Deutsche Telekom v Commission (C‑152/19 P, EU:C:2021:238, paragraph 46); Opinion of Advocate General Rantos in Lietuvos geležinkeliai v Commission (C‑42/21 P, EU:C:2022:537, point 64).

52      This issue, also known as hold-up, is described in more detail by the Commission in recital 16(e) and (f) of its Guidelines on vertical restraints (OJ 2022 C 248, p. 1).

53      See, to this effect, the judgment of 25 March 2021, Deutsche Telekom v Commission (C‑152/19 P, EU:C:2021:238, paragraph 47); Opinion of Advocate General Rantos in Lietuvos geležinkeliai v Commission (C‑42/21 P, EU:C:2022:537, point 65).

54      See, to this effect, the judgment of 12 May 2022, Servizio Elettrico Nazionale and Others (C‑377/20, EU:C:2022:379, paragraph 73). See also the Opinion of Advocate General Rantos in Lietuvos geležinkeliai v Commission (C‑42/21 P, EU:C:2022:537, point 65).

55      See the judgment of 17 February 2011, TeliaSonera Sverige (C‑52/09, EU:C:2011:83, paragraph 58 in fine).

56      See, to this effect, the judgments of 25 March 2021, Deutsche Telekom v Commission (C‑152/19 P, EU:C:2021:238, paragraph 50 et seq.), and Slovak Telekom v Commission (C‑165/19 P, EU:C:2021:239, paragraph 50 et seq.). See also the judgments of 17 February 2011, TeliaSonera Sverige (C‑52/09, EU:C:2011:83, paragraphs 54 to 58 and 70 to 72), and of 10 July 2014, Telefónica and Telefónica de España v Commission (C‑295/12 P, EU:C:2014:2062, paragraphs 75 and 96).

57      Recitals 331 et seq. and 652 of the contested decision; paragraphs 223 and 237 to 240 of the judgment under appeal.

58      Judgments of 14 October 2010, Deutsche Telekom v Commission (C‑280/08 P, EU:C:2010:603); of 17 February 2011, TeliaSonera Sverige (C‑52/09, EU:C:2011:83); of 10 July 2014, Telefónica and Telefónica de España v Commission (C‑295/12 P, EU:C:2014:2062); and of 25 March 2021, Deutsche Telekom v Commission (C‑152/19 P, EU:C:2021:238), and Slovak Telekom v Commission (C‑165/19 P, EU:C:2021:239).

59      See the situations described in the judgments of 14 October 2010, Deutsche Telekom v Commission (C‑280/08 P, EU:C:2010:603, paragraph 4); and of 25 March 2021, Deutsche Telekom v Commission (C‑152/19 P, EU:C:2021:238, paragraph 16) and Slovak Telekom v Commission (C‑165/19 P, EU:C:2021:239, paragraph 16).

60      See paragraphs 287 and 288 of the judgment under appeal, according to which the difference in treatment is attributable not to an objective difference between two types of search result, but to Google’s opting to treat results from competing comparison shopping services less favourably than those from its own comparison shopping service, by displaying and positioning them visibly.

61      See also paragraph 61 of the judgment under appeal.

62      Paragraph 224 of the judgment under appeal.

63      Paragraph 227 of the judgment under appeal.

64      Paragraph 228 of the judgment under appeal.

65      Paragraph 226 of the judgment under appeal, with reference to recitals 285 to 305, 544, 568, 580 and 588 of the contested decision.

66      See to this effect, not least, paragraph 239 of the judgment under appeal.

67      See recital 335 et seq. of the contested decision, with reference to the case-law on margin squeezing.

68      The title of that section reads: ‘The Conduct has potential anti-competitive effects on several markets’.

69      That recital actually says: ‘… the Conduct is capable of leading competing comparison shopping services to cease providing their services’ (my emphasis).

70      See paragraphs 333 to 335 of the judgment under appeal, with reference to recital 414 et seq. of the contested decision, where the General Court had dismissed the second part of the second plea in law.

71      See also paragraphs 136, 139, 142 to 145 and 158 of the judgment under appeal.

72      See, to this effect, the judgment of 3 December 2015, Italy v Commission (C‑280/14 P, EU:C:2015:792, paragraph 43 and the case-law cited therein).

73      Paragraph 168 of the judgment under appeal.

74      Paragraph 169 of the judgment under appeal, with reference to Sections 7.2.2 to 7.2.4 of the contested decision.

75      Paragraphs 170 and 171 of the judgment under appeal.

76      Paragraph 172 of the judgment under appeal.

77      Recital 539 et seq. of that decision.

78      Paragraph 173 of the judgment under appeal.

79      Paragraphs 174 and 175 of the judgment under appeal (my emphasis).

80      See, to this effect, the judgments of 12 January 2023, Lietuvos geležinkeliai v Commission (C‑42/21 P, EU:C:2023:12, paragraph 78), and of 19 January 2023, Unilever Italia Mkt. Operations (C‑680/20, EU:C:2023:33, paragraphs 40 and 44 and the case-law cited therein). See also the Opinion of Advocate General Rantos in Lietuvos geležinkeliai v Commission (C‑42/21 P, EU:C:2022:537, point 92).

81      Paragraph 195 of the judgment under appeal.

82      Paragraph 196 of the judgment under appeal.

83      Paragraph 197 of the judgment under appeal.

84      Paragraphs 180, 182 and 183 of the judgment under appeal.

85      Paragraphs 176 to 184 of the judgment under appeal.

86      Paragraph 180 of the judgment under appeal; see also paragraphs 240 and 279 et seq. of that judgment.

87      Paragraphs 176 to 179 of the judgment under appeal.

88      Regulation of the European Parliament and of the Council of 25 November 2015 laying down measures concerning open internet access and amending Directive 2002/22/EC on universal service and users’ rights relating to electronic communications networks and services and Regulation (EU) No 531/2012 on roaming on public mobile communications networks within the Union (OJ 2015 L 310, p. 1).

89      Paragraph 180 of the judgment under appeal.

90      Paragraphs 181 to 184 of the judgment under appeal.

91      On that prohibition of substitution, see the judgments of 10 April 2014, Areva and Others v Commission (C‑247/11 P and C‑253/11 P, EU:C:2014:257, paragraph 56); of 21 January 2016, Galp Energía España and Others v Commission (C‑603/13 P, EU:C:2016:38, paragraph 73); and of 28 September 2023, Ryanair v Commission (C‑321/21 P, EU:C:2023:713, paragraph 105).

92      See also point 83 et seq. above.

93      ‘It may be observed, for the sake of completeness …’, in the English-language version, and, even more clearly, ‘Il peut d’ailleurs être observé, à titre surabondant …’, in the French-language version.

94      See also recital 378 et seq. of the contested decision and paragraph 168 of the judgment under appeal.

95      Recital 589 et seq. of that decision.

96      In relation to an infringement of Article 101 TFEU, see the judgments of 30 January 2020, Generics (UK) and Others (C‑307/18, EU:C:2020:52, paragraphs 118 to 121); of 2 April 2020, Budapest Bank and Others (C‑228/18, EU:C:2020:265, paragraph 55 and the case-law cited therein); and of 18 November 2021, Visma Enterprise (C‑306/20, EU:C:2021:935, paragraph 74). See also my Opinion in Commission v Servier and Servier Laboratories (C‑176/19 P, EU:C:2022:576, point 288 et seq.).

97      Section 7.2.3.2 and recitals 464 et seq. and 523 et seq. of the contested decision.

98      See, in particular, paragraph 392 of the judgment under appeal.

99      On that understanding, the General Court’s assertion in paragraph 377 of the judgment under appeal is not open to objection either.

100      Recitals 344 et seq. and 589 et seq. of that decision.

101      See, in this regard, paragraphs 568, 577, 588 and 590 of the judgment under appeal.

102      With reference to the findings in paragraphs 420, 506 and 520 to 526 of the judgment under appeal.

103      The General Court refers in this regard to the finding contained in paragraph 441 of the judgment under appeal.

104      See, to that effect, the judgment of 6 October 2015, Post Danmark (C‑23/14, EU:C:2015:651, paragraph 53).

105      See the judgments of 6 October 2015, Post Danmark (C‑23/14, EU:C:2015:651, paragraph 54), and of 19 January 2023, Unilever Italia Mkt. Operations (C‑680/20, EU:C:2023:33, paragraph 56 in fine).

106      See, to this effect, the judgments of 27 March 2012, Post Danmark (C‑209/10, EU:C:2012:172, paragraphs 21 and 22); of 6 September 2017, Intel v Commission (C‑413/14 P, EU:C:2017:632, paragraph 134); and of 12 May 2022, Servizio Elettrico Nazionale and Others (C‑377/20, EU:C:2022:379, paragraph 45).

107      See, however, the Opinion of Advocate General Rantos in Servizio Elettrico Nazionale and Others (C‑377/20, EU:C:2021:998, point 45), who seeks to understand that case-law as meaning that it protects only the most efficient undertakings, which are able to act as drivers of market competitiveness, but not poorer-performing or less efficient undertakings.

108      See, to this effect, the judgment of 6 October 2015, Post Danmark (C‑23/14, EU:C:2015:651, paragraph 60).

109      See, to this effect, my Opinion in Post Danmark (C‑23/14, EU:C:2015:343, points 71 and 73).

110      Judgments of 6 October 2015, Post Danmark (C‑23/14, EU:C:2015:651, paragraph 59), and of 12 May 2022, Servizio Elettrico Nazionale and Others (C‑377/20, EU:C:2022:379, paragraph 101). See also my Opinion in Post Danmark (C‑23/14, EU:C:2015:343, points 71 to 73).

111      The judgment of 12 May 2022, Servizio Elettrico Nazionale and Others (C‑377/20, EU:C:2022:379, paragraph 82) does not permit any other understanding. With regard to exclusionary practices, the Court of Justice, in that judgment, classified the as-efficient-competitor test as being, in this regard, only one of the criteria which make it possible to determine whether the conduct of a dominant undertaking is based on the use of means of normal competition, in so far as this is amenable to examination (my emphasis).

112      Judgments of 6 October 2015, Post Danmark (C‑23/14, EU:C:2015:651, paragraphs 57 to 61); of 12 May 2022, Servizio Elettrico Nazionale and Others (C‑377/20, EU:C:2022:379, paragraphs 81 and 82); and of 19 January 2023, Unilever Italia Mkt. Operations (C‑680/20, EU:C:2023:33, paragraphs 56 to 58); see also my Opinion in Post Danmark (C‑23/14, EU:C:2015:343, points 61, 63 and 71 to 74).

113      See, by converse inference, the judgment of 6 September 2017, Intel v Commission (C‑413/14 P, EU:C:2017:632, paragraph 141).

114      See point 23 et seq. of the Communication from the Commission – Guidance on the Commission’s enforcement priorities in applying Article [102 TFEU] to abusive exclusionary conduct by dominant undertakings (OJ 2009 C 45, p. 7). See also my Opinion in Post Danmark (C‑23/14, EU:C:2015:343, points 59 and 60).

115      Judgment of 19 January 2023, Unilever Italia Mkt. Operations (C‑680/20, EU:C:2023:33, paragraph 59).