JUDGMENT OF THE GENERAL COURT (Ninth Chamber, Extended Composition)
10 November 2021 (*)
(Competition – Abuse of dominant position – Online general search services and 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 or anticompetitive practice – Conditions of access by competitors to a dominant undertaking’s service the use of which cannot be effectively replaced – Dominant undertaking favouring the display of results from its own specialised search service – Effects – Need to establish a counterfactual scenario – None – Objective justifications – None – Possibility of imposing a fine having regard to certain circumstances – Guidelines on the method of setting fines – Unlimited jurisdiction)
In Case T‑612/17,
Google LLC, formerly Google Inc., established in Mountain View, California (United States),
Alphabet, Inc., established in Mountain View,
represented by T. Graf, R. Snelders, C. Thomas, K. Fountoukakos-Kyriakakos, lawyers, R. O’Donoghue QC, M. Pickford QC, and D. Piccinin, Barrister,
applicants,
supported by
Computer & Communications Industry Association, established in Washington, DC (United States), represented by J. Killick and A. Komninos, lawyers,
intervener,
v
European Commission, represented by T. Christoforou, N. Khan, A. Dawes, H. Leupold and C. Urraca Caviedes, acting as Agents,
defendant,
supported by
Federal Republic of Germany, represented by J. Möller, S. Heimerl and S. Costanzo, acting as Agents,
by
EFTA Surveillance Authority, represented by C. Zatschler and C. Simpson, acting as Agents,
by
Bureau européen des unions de consommateurs (BEUC), established in Brussels (Belgium), represented by A. Fratini, lawyer,
by
Infederation Ltd, established in Crowthorne (United Kingdom), represented by A. Morfey, S. Gartagani, L. Hannah, A. D’heygere, K. Gwilliam, Solicitors, and T. Vinje, lawyer,
by
Kelkoo, established in Paris (France), represented by J. Koponen and B. Meyring, lawyers,
by
Verband Deutscher Zeitschriftenverleger eV, established in Berlin (Germany), represented by T. Höppner, professor, P. Westerhoff and J. Weber, lawyers,
by
Visual Meta GmbH, established in Berlin, represented by T. Höppner, professor, and P. Westerhoff, lawyer,
by
BDZV – Bundesverband Digitalpublisher und Zeitungsverleger eV, formerly Bundesverband Deutscher ZeitungsverlegereV, established in Berlin, represented by T. Höppner, professor, and P. Westerhoff, lawyer,
and by
Twenga, established in Paris, represented by L. Godfroid, S. Hautbourg and S. Pelsy, lawyers,
interveners,
APPLICATION under Article 263 TFEU, principally, for annulment of Commission Decision C(2017) 4444 final of 27 June 2017 relating to proceedings under Article 102 TFEU and Article 54 of the EEA Agreement (Case AT.39740 – Google Search (Shopping)), and, in the alternative, for annulment or reduction of the fine imposed on the applicants,
THE GENERAL COURT (Ninth Chamber, Extended Composition),
composed of S. Gervasoni, President, L. Madise (Rapporteur), R. da Silva Passos, K. Kowalik-Bańczyk and C. Mac Eochaidh, Judges,
Registrar: E. Artemiou, Administrator,
having regard to the written part of the procedure and further to the hearing on 12, 13 and 14 February 2020,
gives the following
Judgment
I. Background to the dispute
A. Context
1 Google LLC, formerly Google Inc., is a United States company specialising in internet-related products and services. It is principally known for its search engine, which allows internet users (also referred to as ‘users’ or ‘consumers’, depending on the context) to locate and access websites that match their requirements by means of the browser they are using and hyperlinks. Since 2 October 2015, Google LLC has been a wholly owned subsidiary of Alphabet, Inc., the ultimate parent company of the group (together, ‘Google’).
2 Google’s search engine, accessible at www.google.com or at similar addresses with a country code extension, enables search results to be obtained and displayed on pages appearing on internet users’ screens. Those results are either selected by the search engine according to general criteria and without the websites to which they link paying Google in order to appear (‘general search results’ or ‘generic results’), or selected in accordance with a specialised logic for the particular type of search carried out (‘specialised search results’, also referred to as ‘vertical’ or ‘universal search results’; ‘specialised search results’). Specialised search results may appear without any specific intervention on the part of the internet user alongside general search results on the same page (‘general results page(s)’), or they may appear alone in response to a query entered by the internet user on one of the specialised pages of Google’s search engine or after links appearing in certain areas of Google’s general results pages have been activated. Google has developed various specialised search services, for example for news, local business information and offers, flights or shopping. It is the last category that is at issue in this case.
3 Specialised search services for shopping (‘comparison shopping services’) do not sell products themselves, but compare and select the offers of online sellers offering the product sought. Those sellers may be direct sellers or sales platforms grouping together the offers of numerous sellers from which the product sought can be ordered immediately (eBay, Amazon, PriceMinister or Fnac being among the best known).
4 Like general search results, specialised search results may be what are sometimes referred to as ‘natural’ results, which are not paid for by the websites to which they link, even if they are merchant websites. The order in which those natural results are displayed in the results pages is also independent of payment.
5 Google’s results pages, like those of other search engines, additionally contain results which, on the other hand, are paid for by the websites to which they link. Those results, commonly called ‘ads’, are also related to the internet user’s search and are distinguished from the natural results of a general or specialised search, for example by the word ‘Ad’ or ‘Sponsored’. They appear in specific spaces on the results pages or among the other results. They may take the form of specialised search results and in fact some of Google’s specialised search services are based on a paid inclusion model. The display of those results is linked to payment commitments entered into by advertisers at auctions. In some circumstances, additional selection criteria may be applied. Advertisers pay Google when an internet user clicks on, and thus activates, the hyperlink in their ad, which leads to their own website.
6 Google’s general results pages can include or have included all types of result referred to in paragraphs 2 to 5 above. As is also explained in paragraph 2 above, specialised search results, whether natural results or ads, may also appear alone on a specialised results page in response to a query entered by the internet user on one of the specialised search pages of Google’s search engine or after links in certain areas of Google’s general results pages have been activated.
7 Search engines other than Google’s own offer or have offered general search services and specialised search services, such as Alta Vista, Yahoo, Bing or Qwant. There are also specific search engines for comparison shopping, such as Bestlist, Nextag, IdealPrice, Twenga, Kelkoo or Prix.net.
8 According to Google’s uncontested account, it began providing internet users with a comparison shopping service in 2002, after or at the same time as other search engines such as Alta Vista, Yahoo, AskJeeves or America On Line (AOL). That initiative was in recognition of the fact that the processes that had hitherto been used by search engines did not necessarily return the most relevant results in response to specific searches, such as those relating to news or shopping. Google thus began providing comparison shopping results (‘product results’) from the end of 2002 in the United States, and, approximately two years later, gradually extended that provision to certain countries in Europe. Those results were not the results of its ordinary general search algorithms being applied to information presented in websites – such information being first extracted by a process known as ‘crawling’ by which Google explores web content for the purpose of indexing it, then selected in order to be added to Google’s ‘web index’ and, lastly, sorted by relevance for display in response to the internet user’s query – but the results of specific algorithms being applied to information contained in a database fed by the sellers themselves, called the ‘product index’. These results were first provided through a specialised search page, called Froogle, that was separate from the search engine’s general search page, then, as from 2003 in the United States and 2005 in certain countries in Europe, they were also available from the search engine’s general search page. In the latter case, product results were grouped together on the general results pages in what was called the Product OneBox (‘Product OneBox’), either below or parallel to the advertisements appearing at the top or at the side of the page and above the general search results, as shown in the following annotated illustration, supplied by Google:
9 If internet users used the general search page to enter their query in relation to a product, the responses returned by the search engine included both those produced by the specialised search and those produced by the general search. When internet users clicked on the result link in a Product OneBox, they were taken directly to the appropriate page of the website of the seller offering the product sought, where it could be purchased. Furthermore, a special link in the Product OneBox directed users to a Froogle results page with a wider selection of specialised product results. Google explains that Froogle results never appeared in general search results, however, while the results of other specialised search engines for comparison shopping did.
10 Google states that, as from 2007, it changed the way in which it developed product results.
11 The changes made included Google abandoning the name Froogle in favour of Product Search for its specialised comparison shopping search and results pages.
12 As regards product results displayed from the general search page on the general results pages, first, Google enriched the content of the Product OneBox by adding images. Google has provided the following illustration of the first type of image addition:
13 Google also diversified the possible outcomes of the action of clicking on a result link shown: depending on the circumstances, internet users were, as before, taken directly to the appropriate page of the website of the seller of the product sought, where the product could be purchased, or they were taken to the specialised Product Search results page to view more offers of the same product. Over time, the Product Onebox was renamed the Product Universal (‘Product Universal’) in different countries (for example in 2008 in the United Kingdom and Germany), while at the same time being made more appealing. Google has provided the following annotated illustration of the two variants of a Product Universal:
14 Secondly, Google established a mechanism called Universal Search which, if a shopping search was identified, made it possible to rank, on the general results page, products covered by the Product Onebox, subsequently the Product Universal, against general search results.
15 As regards paid product results appearing on its results pages, in September 2010 Google introduced in Europe an enriched format compared to that of text-only ads (‘text ads’) that had appeared previously. If the advertiser so wished, by clicking on the text, internet users could see, in a larger format than the initial text ad, images of the products searched for and the prices charged by the advertiser. Google has provided an annotated illustration of such a text ad extension: