Exclusionary Innovation in the European Commission’s Decisions Against Google

Exclusionary innovation poses a bigger threat to competition in digital platform markets than in other innovation markets given the relevance of data-driven network effects as well as the strong incentive and ability of digital platforms to pursue an envelopment strategy. This paper advocates a theory of harm called “platform-wide exclusionary innovation” which applies to conduct that plausibly creates short-term consumer benefit but is more likely to foreclose rivals and therefore reduce technological progress in the long run. This theory of harm can help to explain Google’s conduct that the European Commission condemned in its three decisions against Google between 2017 and 2019. Due to interconnections between Google’s practices in the three cases this article assesses whether they may be considered jointly for the purpose of finding of an infringement of Article 102 TFEU or under the proposed Digital Markets Act

Super-dominant and Super-problematic? The Degree of Dominance in the Google Shopping Judgement

In the Google Shopping judgment, the General Court refers to Google’s super-dominance and with it its stronger obligation not to allow its behaviour to impair effective competition. The concept of super-dominance suggests that certain conduct could breach Article 102 TFEU only when adopted by super-dominant undertakings, but it remains uncertain how exactly it contributes to finding an abuse. The aim of this paper is to analyze the Google Shopping judgment in relation to the concept of super-dominance. We explore how the concept has evolved in the case-law and what role it has played when establishing an abuse of dominance and analyze whether reliance on super-dominance in the case law is consistent with the effects-based approach. Finally, we examine how Google Shopping fits with the evolution of super-dominance in the case law and the effects-based approach and what it means for the regulation of digital gatekeepers going forward