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Google Shopping and Article 106 of the Treaty on the Functioning of the European Union

A legal critique of the General Court’s ruling and the European Commission's decision against Google.

Published:
Edouard Bruc

In an article entitled “Google Shopping and Article 106 TFEU: A Legal Dystopia in the EU Constitutional Order,” alumnus Édouard Bruc (Competition Law LLM, 2017) analyses the EU General Court’s ruling and the European Commission’s antitrust decision against Google. He explains in particular why they depart radically from past case law and risk undermining the more economic approach and consumer welfare standard. The article is published in the Oxford Journal of European Competition Law & Practice.

Édouard elaborated on the details of the publication in his recent LinkedIn post: "This article is a legal critique of the General Court’s ruling and the Commission Decision.  In doing so, I analyse the interplay between Article 106 TFEU and Article 102 TFEU, shedding light on their distinct historical contexts, underlying logics, and established case-law.  The paper underscores the pitfalls of conflating these distinct instruments, as exemplified in the Google Shopping case, which threatens the very bedrock of the EU constitutional order by infringing many fundamental legal principles and settled case-law.

By way of illustration, the unfettered incorporation of Article 106’s “equality of opportunity” principle carries profound implications for Article 102 TFEU and suggests a paradigm shift. Indeed, the blind enforcement of this principle could mitigate selective market forces. Among other things, such a transposition will result in many pro-competitive behaviours being considered a priori unlawful, thereby fostering legal uncertainty and regulatory burden.  As explained, this offshoot will lead to the quasi-criminalisation of behaviours based on faulty legal and economic foundations, whereby the Commission can merely assert consumer harm because rivals stand to lose market share.  In many ways, such a departure with past case law may undermine the more economic approach and consumer welfare standard.

In addition, the paper delves into other topics such as superdominance, abnormality, judicial activism, and indispensability.

This publication arrives somewhat timely, just before the upcoming oral hearing.  Your insights and critiques are highly valued as always".

Read the article on the Journal of European Competition Law and Practice website.

Édouard is a Solicitor in Antitrust and Competition Law at WilmerHale in London. See Édouard's LinkedIn profile.

 

 

 

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