FairSearch - for the right result

Google Android case:

European Commission must require effective remedies

12 January 2021

  • Google must comply with Android decision of more than two years ago
  • Damage to market is continuing without effective remedies
  • Commission credibility is at stake

FairSearch has asked the European Commission to commence proceedings against Google for failing to comply with its competition decision issued more than two years ago, which found the company muscled out competitors by abusing its dominance of the Android operating system.

In a letter to Executive Vice President and Competition Commissioner Margaret Vestager and Director General Olivier Guersent, FairSearch urged that action be taken now because there is no time to wait for months or years for a proposed law on dominant platforms to fix the problem. The Digital Services Act package was proposed by the Commission on 15 December 2020 but a final decision will require action by the Parliament, the Council, and agreement on final wording by the three EU institutions. Such legislation takes years to pass.

“Without strong enforcement of the Android Decision remedy, the years and resources spent on the Commission’s investigation in this case will remain meaningless,” said the letter to the two Commission officials.

Failure to enforce the decision would set a damaging precedent so that Google and others would not fear the consequences of future Commission decisions condemning anti-competitive behaviour.

“This ultimately undermines the credibility of the Commission’s enforcement of the competition laws”, the letter said.

FairSearch said Google designed its remedy to be ineffective, permitting the company to consolidate its illegal market gains and profit financially, as well to expand its dominance to other markets.

The Google remedy includes an auction-based search choice screen which it claims gives users an effective choice of various offerings. However, the proposal turns the remedy for its infringement into a revenue source for Google and fails to restore competition on the merits.

“Google’s proposed pay-for-play auction model weakens rivals, forcing them to pay for traffic that they would otherwise have generated organically, and introduces false scarcity by limiting the search screen to only three alternative search providers” alongside Google, the letter said.

“The Commission can make a real difference in the browser and search markets, but only if it makes a serious effort of ensuring its Android Decision is rapidly enforced, to prevent the damage inflicted by Google on these markets from worsening,” the letter said.

The letter recalled that the Commission acted swiftly and forcefully when Microsoft failed to carry out effective remedies following a decision against it in 2004. In that case Microsoft was fined millions of euros for each day of the many months during which it failed to provide an effective remedy.

Ends

Media Contact:

David Lawsky

david.lawsky@fipra.com