The European Union’s highest court has dismissed Google’s appeal regarding a ruling on abuse of dominance and a penalty of €2.42 billion in the Google Shopping case. The European Court of Justice upheld the decision that Google abused its dominant position by prioritizing its own comparison shopping service (Google Shopping) in the results of its general search engine while demoting the visibility of competing services.

Specifically, the Court of Justice rejected the appeal lodged by Google and its parent company Alphabet against the EU General Court’s November 2021 ruling that upheld the European Commission’s June 2017 Google Shopping decision.

The ruling by the Court of Justice holds significant importance for consumers across Europe. The Court has established that Google is prohibited from unjustly restricting European consumers’ access to comprehensive and impartial online information regarding the best available deals.

Google’s abuse of its dominant position in the search engine market, allowed it to unlawfully hinder competing comparison shopping services, such as Kelkoo, from competing on equal terms. As a result of Google’s actions, consumers were deprived of the opportunity to discover lower prices and valuable product information from alternative comparison shopping services for a wide range of products, including clothing and household appliances.

The ruling’s most significant aspect may be the formal acknowledgment of the Commission’s extensive discretion in constructing cases of abuse of dominance, especially concerning access limitations. The ECJ highlighted that demonstrating these restrictions, particularly when they entail intentional actions to disadvantage competitors, does not strictly necessitate the use of the conventional “refusal to supply” standard.

The ECJ made a distinction between two types of access restrictions. Firstly, there are “passive” refusals of access, which occur when a dominant firm denies access to infrastructure that it has developed solely for its own use. Secondly, there are “active” practices that favor a firm’s own products or services at the expense of competitors, which are considered illegal self-preferencing practices. In this scenario, the dominant company may allow access to its infrastructure but imposes unfair conditions on that access. The abusive behavior, in this case, is not primarily in the refusal itself, but rather in the deliberate actions taken to disadvantage rival firms.

The ECJ ruling has considerable ramifications for dominant firms, as it expands the Commission’s power to address abuse of dominance through novel and creative methods. It is anticipated that this judgment will encourage the Commission to adopt a more assertive and proactive stance regarding the enforcement of Article 102, thereby extending the limits of what may be deemed an abuse of dominance.

Any person or company affected by the anti-competitive behaviour described in this case may bring the matter before the courts of the Member States and seek damages, individually or collectively. Several damages actions have already been filed against Google.