Google Shopping (C48/22P) – Implications, Outlook and the ECJ’s judgment

The recent Google Shopping judgment has already sparked many debates, and an earlier post provides a detailed overview. This contribution builds on the previous work and focuses on a few aspects of the academic analysis. It also discusses the judgment’s broader implications, and the outlook for future actions. It builds upon a recently published working paper.

What we took from Google Shopping in a nutshell

At the heart of our analysis is the nuanced approach to defining self-preferencing as an independent form of abuse under Article 102 TFEU. We argue that this ruling goes beyond economic assessments and incorporates a principled interpretation on fairness, market structure and discrimination. We emphasize the need to demonstrate significant foreclosure effects along with specific circumstances in order to establish a form of self-preferencing abuse. This ensures that not all self preferencing is considered harmful. One of the most notable outcomes of this ruling is that it articulates what “plus” is required for self preferencing to be abuse. The Court stressed that mere discrimination was not enough, and that evidence of significant foreclosure effects as well as specific circumstances amplifying harm were required. This avoids treating all self-preferencing as inherently harmful but provides a robust framework for evaluating its impact on competition.

Importantly, the judgment also underscores the EC’s procedural latitude in proving abuse. The Court confirmed that indirect or circumstantial evidence is sufficient to establish an infringement if it is convincing and plausible. The EC may use counterfactual analyses to enhance the robustness and reliability of evidence. However, this is only if the complexity of a case or the nature the defence being raised warrants it. This pragmatic approach allows for more timely enforcement in fast-moving market, but it also raises questions regarding the burden of proof on defendants who wish to refute claims of abuse.

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Broader implications and outlook of case

The delays in Google Shopping highlight the limitations of ex post enforcement in the digital age. The long-running litigation allowed Google’s market position to be cemented, reducing the practical impact of the judgement. This highlights the need for quicker remedies, e.g. Through interim measures or ex-ante regulations that complement them, like the DMA. Nevertheless, finding the right balance between legal certainty and flexibility remains a challenge. This is especially true as national authorities adopt different approaches, like Germany’s SS 19a GWB. The ruling, despite some notable advances, leaves many questions unanswered. The threshold for “specific circumstance” in self-preferencing is still open to interpretation and will require future jurisprudence refine its contours. The interplay between Article 102 TFEU, and emerging regulatory frameworks such as the Digital Markets Act, or SS19a GWB introduces potential conflict. The DMA’s explicit prohibition of self-preferencing by gatekeepers contrasts with the case-specific, effects-based analysis endorsed in Google Shopping, suggesting a divergence in enforcement priorities that may complicate compliance for digital platforms.

Looking ahead, the Google Shopping ruling serves as both a milestone and a cautionary tale. It highlights the importance of adapting the competition law to digital markets, while still respecting procedural safeguards. It also calls for an integrated enforcement ecosystem to bridge the gap between ex ante and ex post mechanisms. The true legacy of this case depends on how well policymakers, regulators and enforcement personnel navigate these complex dynamics. While the public enforcement phase for Google Shopping is complete, private enforcement continues. Several private actions were initiated at the national-level, many of which were put on hold pending the final ECJ ruling and are now back on track. Remind everyone of Heureka

, (also discussed here) that limitation periods were suspended during the Commission investigation as well as any now closed follow-up legal proceedings. This allows many harmed parties to pursue private actions at national level despite the long duration of the EU proceedings. The only thing left to tackle is proving harm and causality in self-preferencing cases – a possible courageous but still to overcome endeavour

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