General Court in Google Search (Shopping). Chronicle of a renunciation foretold

Is so much of a stir justified?

The General Court’s ruling in Google Search (Shopping)[1] is perhaps the most eagerly-awaited judgement in the last years in the field of abuse of a dominance under Article 102 of the Treaty on the Functioning of the European Union (the “TFEU”) and even in the domain of competition law. The reason is not only the size of the interests at stake but also that it was expected to re-define the limits of competition rules by establishing whether a dominant company’s refusal to share its own competitive advantage can only be regarded as abusive if the qualified standard of “essential facilities” is met. Traditionally, this doctrine, instituted by United State case law to regulate the use of irreplicable physical facilities (e.g. railways or ports) by operators competing with the facility owner in a related market (e.g. freight transport), determined that the latter’s refusal to allow access by the former was only abusive if such access could be seen as indispensable for rivals to compete in the related market and, consequently, refusal would lead to elimination of competition in this market. However, its applicability has declined especially in digital economy where it is difficult to predicate the indispensability of a platform given the multiplicity of alternative channels (competition is “one click away” as Google put it).

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