Google appealed against the European Commission’s findings in its 2017 Google Search (Shopping) Decision in the General Court (GC); however, the GC has dismissed Google’s action and upheld the €2.42bn fine imposed by the Commission in a judgment published on 10 November 2021. The GC found that Google had engaged in anti-competitive activity, having favoured its own comparison-shopping service on its general search results by means of preferential display and positioning of its product through ranking algorithms.
The GC also noted that Google’s general results page can be likened to an essential facility, as there is no actual or potential substitute available. However, it also affirmed that it was not necessary to apply the law on refusal to supply to the case at hand using the Bronner judgment. Even so, the harmful effects of Google’s self-preferential treatment on competition were highlighted by the GC, affirming that this behaviour could have resulted in the disappearance of competing comparison-shopping services, lessened innovation in the market and created less choice for consumers.
However, the GC annulled the Commission’s finding that there had been an infringement in the market for general search services, stating that the Commission did not establish that Google’s conduct had had actual or potential anti-competitive effects thereon.
Regardless, the judgment may be encouraging as to the possible success of future claims for damages where claimants can prove that they suffered a loss, financial or otherwise, or distress from Google’s ability to give preference to its own products in its search results. In particular, this will be relevant for suppliers who can prove that their loss arose from this self-preferential conduct, and that such consequences would not have arisen if Google had prioritised the best or most relevant search results.