The Google Shopping case is now one last step away from final decision following Advocate General Kokott’s opinion from last week. The AG sided with the European Commission and the General Court which upheld Google’s 2.4bn fine for preferencing its comparison shopping service over rivals in Google’s general search results website.

A few interesting takeaways from the AG’s opinion:

• The strict criteria established in the Bronner case-law regarding refusal to supply are meant to be applied strictly, they “typically concern a situation in which a dominant undertaking refuses to grant its competitors access to infrastructure developed by that undertaking for the purposes of its own business owned by it”.
• The self-preferencing by Google of its own comparison shopping service on the general results page is not a refusal to supply, but a separate and independent type of abuse of dominance which concerns “unreasonable conditions of access” and shares similarities with the unequal treatment of competitors and margin squeeze.
• Google’s argument that the EC has omitted to assess the effects of the alleged practices on as-efficient competitors should be rejected as “the scope of application of the as-efficient-competitor test should not be extended to practices which bear no relation to price competition”. Case-law which is “at least ambiguous in this regard” should, in AG’s opinion, “be clarified, if not corrected”.

The full opinion is available here.

With regard to the last point – while the European Court of Justice has different possible ways to side with the AG’s opinion without entering into much details, it would be interesting to see whether and how it will approach it. It makes a direct reference to last year’s Unilever case in which the ECJ left the door open for accepting the probative value of the as-efficient-competitor test in exclusionary practices not related to pricing.

The information contained in this article is not a legal advice and should be relied or acted upon as such.