The European Commission’s Google Shopping decision: Could bias have anything to do with it?
| DOI | 10.1177/1023263X19853712 |
| Date | 01 August 2019 |
| Published date | 01 August 2019 |
| Subject Matter | Articles |
Article
The European Commission’s
Google Shopping decision:
Could bias have anything
to do with it?
Penelope A Bergkamp*
Abstract
Google has been on the radar of the European Commission’s Directorate-General for
Competition for some time. Over the last few years, the European Commission has laun-
ched competition law investigations into three Google services: Google Shopping, Android
and AdSense. In June 2017, the Commission released its decision in the Google Shopping
case. The Commission imposed a record fine of €2.42 billion on Google for violating EU
antitrust rules. According to the Commission, Google abused its market dominance as a
search engine by giving an ‘illegal advantage’ to its own advertisers through its comparison
shopping service. The Google Shopping decision can be understood to a significant degree
by reference to conscious and unconscious biases. These biases, of course, are not overt –
in administrative decision-making, decision-makers have to apply the law and support their
decisions with reasons. Legal reasoning, however, provides an opportunity to test the
plausibility of hypothesized bias: if the reasoning is strong, persuasive and objective, bias is
either irrelevant (that is, it has not influenced the decision) or unlikely. If reasoning is weak,
unpersuasive, or subjective, bias may have played a role. As this article demonstrates, based
on careful analysis of the Commission’s reasoning in the Google Shopping case, the hypothesis
of possible bias is confirmed.
Keywords
European Commission decision, EU competition law, product market, dominance, Google
shopping, Panda algorithm, bias
* National University of Singapore
Corresponding author:
Penelope A Bergkamp, National University of Singapore, 5 College Green, 299723 Singapore.
E-mail: pabergkamp@u.nus.edu
Maastricht Journal of European and
Comparative Law
2019, Vol. 26(4) 524–539
ªThe Author(s) 2019
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sagepub.com/journals-permissions
DOI: 10.1177/1023263X19853712
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1. Introduction
Google has been on the radar of the Directorate-General for Competition for some time.
Over the last few years, the European Commission has launched competition law investiga-
tions into three Google services, including Google Shopping, Android
1
and AdSense.
2
In
June 2017, the European Commission released its decision in the Google Shopping case.
3
The European Commission imposed a record fine on Google of €2.42 billion for violating
EU antitrust rules. According to the Commission, Google abused its market dominance as a
search engine by giving an ‘illegal advantage’ to its own advertisers through a comparison
shopping service. The Commission found that Google systematically gave ‘prominent place-
ment to its own comparison shopping service: when a consumer enters a query into the
Google search engine in relation to which Google’s comparison shopping service wants to
show results, these are displayed at or near the top of the search results’. At the same time,
competing comparison shopping services were demoted in Google’s search results.
4
Google
had90daystoremedytheinfringementandrankitsownshoppingcomparisoninthesame
way it lists competing services.
Expectedly, the decision drew much attention in the US.
5
Some commentators have applauded
the Commission’s decision and its leadership in confronting Google’s practices.
6
According to
George Soros, Google deceives users ‘by manipulating their attention, directing it towards their
own commercial purposes’.
7
Claims of protectionism and bias against US companies abounded,
however, including from the US government. In 2015, former US President Barack Obama com-
mented that US companies ‘have owned the Internet. Our companies have created it, expanded it,
perfected it in ways that they [European companies] can’t compete. And oftentimes what is
portrayed as high-minded positions on issues sometimes is just designed to carve out some of
their commercial interests ’.
8
The US Consumer Technology Asso ciation, a trade association,
expressed ‘grave concerns about [the Google] fine which appears, once again, to justify our long
1. The Commission has recently fined Google €4.34 billion in the Android case, effectively beating the record set in the
Google Shopping case of €2.42 billion. European Commission Press Release, Antitrust: Commission fines Google €4.34
billion for illegal practices regarding Android mobile devices to strengthen dominance of Google’s search engine,18
July 2018; see Ec.europa.eu/competition/antitrust/cases/dec_docs/39740/39740_14996_3.pdf.
2. S. Hubbard, ‘Seven Reasons Why Europe’s Antitrust Cases Against Google Are A Big Deal’, Forbes (2017), https://
www.forbes.com/sites/ washingtonbytes/2017/ 03/16/7-reasons-why- europes-antitrust-ca ses-against-google-a re-a-big-
deal/#7d7ca9bf1498.
3. European Commission, Commission Decision of 27 June 2017 relating to proceedings under Article 102 of the Treaty of
the Functioning of the European Union and Article 54 of the Agreement on the European Economic Area, AT.39740 –
Google Search (Shopping) (hereafter ‘the decision’).
4. European Commission Press Release, ‘Antitrust: Commission fines Google €2.42 billion for abusing dominance as
search engine by giving illegal advantage to own comparison shopping service’, European Commission (2017), http://
europa.eu/rapid/press-release_IP-17-1784_en.htm.
5. K. Finley, ‘Google Big EU Fine Isn’t Just About the Money’, Wired (2017), https://www.wired.com/story/google-big-
eu-fine/.
6. I. Kottasov´a, ‘European Union: We’re not biased against American companies’, CNN (2017), http://money.cnn.com/
2017/06/27/technology/eu-google-biased-protectionism/index.html.
7. G. Soros, ‘Only the EU can break Facebook and Google’s dominance’, The Guardian (2018), https://www.theguardian.
com/business/2018/feb/15/eu-facebook-google-dominance-george-soros.
8. K. Swisher, ‘White House. Red Chair. Obama Meets Swisher.’, Recode (2015), https://www.recode.net/2015/2/15/
11559056/white-house-red-chair-obama-meets-swisher.
Bergkamp 525
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