Academic Year BRUSSELS SCHOOL OF COMPETITION SPECIALISED STUDY PROGRAMME (LL.M.) COMPETITION LAW AND ECONOMICS

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1 Academic Year BRUSSELS SCHOOL OF COMPETITION SPECIALISED STUDY PROGRAMME (LL.M.) COMPETITION LAW AND ECONOMICS GOOGLE AND EU COMPETITION LAW: A CASE STUDY Prf. A Lamadrid de Pabl Intr - What is a search engine? - Hrizntal v vertical search engines - Backgrund t the Eurpean Cmmissin s investigatin Market definitin/ Dminance - General intrductry questins n market definitin - Prblem: hw d yu apply the SSNIP test in tw-sided market where there is n price? - Is the service really given away fr free? - Can there be dminance in a market where services are prvided fr free? - Is a 90% market share meaningful in the case f Ggle? (see Micrsft/Skype) - Gales f perennial destructin? - Rle f netwrk effects as barriers t entry? (Here and past cases; Why culd Ggle take ver Yah? What is minimum viable scale? Are netwrk effects equally imprtant when they nly play n ne side?) - In what circumstances can netwrk effects lead t mnply? What are the reasns why pwerful netwrk effects may nt lead t mnply?

2 - Ability t switch ( cmpetitin is ne click away ): cmpare with (i) Msft cases; (ii) Micrsft/Skype (and Cisc& Messagenet/Cmmissin); Cntestable market? - Are there ther barriers t entry? - Des Ggle have pwer t keep price abve cmpetitive level r t slw dwn innvatin? Hw can yu gauge innvatin? - Lk at ther side f market; can Ggle price ads supra-cmpetitively? - Online v ffline? Search v nn-search? - Hypthetical: even under the assumptin f a natural mnply fr searches, wuld that be a cmpetitin law prblem? - Takeaway: is Ggle dminant? If s, in what market? Cnduct assessment - Leave aside alleged exclusivity and prtability restrictins and fcus n search-related practices + scraping - Several ther alleged vilatins reprtedly brught t EC s attentin; sme dn t appear t be self-standing vilatins but sme argue that several nn-vilatins put tgether=vilatin (N. Petit: Karate cmpetitin law); What d yu think? Hw can this cnceptually be framed in EU cmpetitin language? Scraping: - Explain cmplaints - Snippets: excerpts riginating frm publicly available cntent nt subject t cpyright - Useful fr users and use legitimate under IP; shuld/can cmpetitin law create a 2 nd layer f prtectin in additin t cpyright law? - Relate discussin t recent debates n privacy and data prtectin? - Read discussin abut scraping n Chillin Cmpetitin: - Explain FTC s statement + Cmmissiner Rsch s dissenting pinin - Explain cmmitments - Discuss parallel develpment by law in Spain, where newspapers frced t cllect mney frm Ggle News as cmpensatin fr shwing their snippets belw the links. Against this backgrund, Ggle has clsed dwn News in Spain, thereby leading news - 2 -

3 sites t lse a significant number f visits; editrs have publicly stated that this mve als cnstitutes an abuse f dminance n the part f Ggle; what d yu think? Search-related practices: - Impsing search neutrality principle thrugh cmpetitin law: Brainstrming; under which classic theries f harm culd rivals claim t have neutral access t Ggle s search results? - Is there a clsed categry f abuses? Is this a prblem? - Can we develp a nvel thery f harm by reference t its effects: if effect is diversin f traffic, culd the abuse be diversin f traffic? Essential facilities/refusal t deal: Premised n assumptin that search engines are essential facilities, that neutral access t Ggle is indispensable ; are these circumstances met? Gunther Oettinger, the Eurpean Cmmissiner fr the Digital Ecnmy, has recently declared that a search platfrm needs t be bjective and neutral. What d yu think f this statement? Is neutrality feasible; what des it mean? What s neutral, e.g. when it cmes t results f searches fr restaurants (quality f page, number f previus visits, crss references, reviews, quality f fd?) Are rankings (e.g. Chambers & Partners) ever neutral? Lack f human interventin? Is it a prblem f deceptin r perceptin? Rle f cnsumer prtectin laws? Wuld it make sense t impse an acrss-the-bard neutrality bligatin? Is cmpetitin law well-suited t impse any such bligatin? Discriminatin as a thery f harm In what cnditins can discriminatin be a cmpetitin law infringement? Cnceivably a thery f harm in casu if it were prved that Ggle verrde algrithms t disadvantage rivals withut an efficiency justificatin; has this happened? Organic results (FTC saw n evidence; des nt seem t be an EC cncern) - 3 -

4 Spnsred links (where Ggle makes the mney t recup csts incurred in prviding rganic search; des nt seem t be an EC cncern) Universal search? Mst interesting Explain alleged prblem Frm cmplainants viewpint Frm Ggle s viewpint Is this typical leverage? Tying? Tw prducts r ne way f respnding t users queries? Freclsure? Objective justificatin? Apparent effect n rivals? Evidence f freclsure? What is freclsure? Effect n cnsumer welfare? T what extent can a dminant cmpany favr its wn prducts/services? Can favring withut mre be an abuse? D cmpanies have the bligatin t generate cmpetitin fr themselves? Can/shuld cmpetitin law impse parity n the distributin f a dminant cmpany s wn prducts/services? Shuld we cndemn practices that harm rivals but which have a psitive effect n, at least, shrt-term cnsumer welfare? Secnd-guess innvative prduct design? (Cmpare with FTC s stance: Prduct design is an imprtant dimensin f cmpetitin and cndemning legitimate prduct imprvement risks harming cnsumers ) Rle f bjective justificatin in Art. 102? Is it legally relevant that ther nn-dminant search engines d the same? - 4 -

5 Prcedure, cmpetitin law as an element f business strategy and plitics - Business strategy: number and timing f cmplaints; game f perceptins. - Explain prcedure fr rejectin f cmplaints - When is a market test necessary? - Shuld cmplainants have access t preliminary assessments? - Culd the Cmmissin nw impse a sanctin after 4 years negtiating cmmitments? - Prs and cns f cmmitment decisin in rapidly evlving markets? - What wuld happen in Luxemburg in (a) a cmmitments scenari; (b) an infringement decisin scenari? - Discuss the rle f plitics in cmpetitin law enfrcement and the Cmmissin s decisin-making prcess - Substantive cnvergence at the internatinal level? Race t the bttm in standards? On the sufficiency f the prpsed cmmitments? Factual matter, but shw students fr them t have wn pinin - 5 -