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EU Commission fines Google €1.49 billion for abusive practices in online advertising

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The European Commission has fined Google €1.49 billion for breaching EU antitrust rules. Google has abused its market dominance by imposing a number of restrictive clauses in contracts with third-party websites which prevented Google’s rivals from placing their search adverts on these websites.

Commissioner Margrethe Vestager, in charge of competition policy, said: “Today the Commission has fined Google €1.49 billion for illegal misuse of its dominant position in the market for the brokering of online search adverts. Google has cemented its dominance in online search adverts and shielded itself from competitive pressure by imposing anti-competitive contractual restrictions on third-party websites. This is illegal under EU antitrust rules. The misconduct lasted over 10 years and denied other companies the possibility to compete on the merits and to innovate – and consumers the benefits of competition.”

Google’s strategy for online search advertising intermediation

Websites such as newspaper websites, blogs or travel sites aggregators often have a search function embedded. When a user searches using this search function, the website delivers both search results and search adverts, which appear alongside the search result.

Through AdSense for Search, Google provides these search adverts to owners of “publisher” websites. Google is an intermediary, like an advertising broker, between advertisers and website owners that want to profit from the space around their search results pages. Therefore, AdSense for Search works as an online search advertising intermediation platform.

Google was by far the strongest player in online search advertising intermediation in the European Economic Area (EEA), with a market share above 70% from 2006 to 2016. In 2016 Google also held market shares generally above 90% in the national markets for general search and above 75% in most of the national markets for online search advertising, where it is present with its flagship product, the Google search engine, which provides search results to consumers.

It is not possible for competitors in online search advertising such as Microsoft and Yahoo to sell advertising space in Google’s own search engine results pages. Therefore, third-party websites represent an important entry point for these other suppliers of online search advertising intermediation services to grow their business and try to compete with Google.

Google’s provision of online search advertising intermediation services to the most commercially important publishers took place via agreements that were individually negotiated. The Commission has reviewed hundreds of such agreements in the course of its investigation and found that:

Starting in 2006, Google included exclusivity clauses in its contracts. This meant that publishers were prohibited from placing any search adverts from competitors on their search results pages. The decision concerns publishers whose agreements with Google required such exclusivity for all their websites.

As of March 2009, Google gradually began replacing the exclusivity clauses with so-called “Premium Placement” clauses. These required publishers to reserve the most profitable space on their search results pages for Google’s adverts and request a minimum number of Google adverts. As a result, Google’s competitorswere prevented from placing their search adverts in the most visible and clicked on parts of the websites’ search results pages.

As of March 2009, Google also included clauses requiring publishers to seek written approval from Google before making changes to the way in which any rival adverts were displayed. This meant that Google could control how attractive, and therefore clicked on, competing search adverts could be.

Therefore, Google first imposed an exclusive supply obligation, which prevented competitors from placing any search adverts on the commercially most significant websites. Then, Google introduced what it called its “relaxed exclusivity” strategy aimed at reserving for its own search adverts the most valuable positions and at controlling competing adverts’ performance.

Google’s practices covered over half the market by turnover throughout most of the period. Google’s rivals were not able to compete on the merits, either because there was an outright prohibition for them to appear on publisher websites or because Google reserved for itself by far the most valuable commercial space on those websites, while at the same time controlling how rival search adverts could appear.

Breach of EU antitrust rules

Google’s practices amount to an abuse of Google’s dominant position in the online search advertising intermediation market by preventing competition on the merits.

Market dominance is, as such, not illegal under EU antitrust rules. However, dominant companies have a special responsibility not to abuse their powerful market position by restricting competition, either in the market where they are dominant or in separate markets.

Today’s decision concludes that Google is dominant in the market for online search advertising intermediation in the EEA since at least 2006. This is based in particular on Google’s very high market shares, exceeding 85% for most of the period. The market is also characterised by high barriers to entry. These include very significant initial and ongoing investments required to develop and maintain general search technology, a search advertising platform, and a sufficiently large portfolio of both publishers and advertisers.

Google has abused this market dominance by preventing rivals from competing in the online search advertising intermediation market.

Based on a broad range of evidence, the Commission found that Google’s conduct harmed competition and consumers, and stifled innovation. Google’s rivals were unable to grow and offer alternative online search advertising intermediation services to those of Google. As a result, owners of websites had limited options for monetizing space on these websites and were forced to rely almost solely on Google.

Google did not demonstrate that the clauses created any efficiencies capable of justifying its practices.

Consequences of the Decision

The Commission’s fine of €1 494 459 000 (1.29% of Google’s turnover in 2018) takes account of the duration and gravity of the infringement. In accordance with the Commission’s 2006 Guidelines on fines (see press release and MEMO), the fine has been calculated on the basis of the value of Google’s revenue from online search advertising intermediation in the EEA.

Google ceased the illegal practices a few months after the Commission issued in July 2016a Statement of Objections concerning this case. The decision requires Google to, at a minimum, stop its illegal conduct, to the extent it has not already done so, and to refrain from any measure that has the same or equivalent object or effect.

Finally, Google is also liable to face civil actions for damages that can be brought before the courts of the Member States by any person or business affected by its anti-competitive behaviour. The new EU Antitrust Damages Directive makes it easier for victims of anti-competitive practices to obtain damages.

Other Google cases

In June 2017, the Commission fined Google €2.42 billion for abusing its dominance as a search engine by giving an illegal advantage to Google’s own comparison shopping service.

In July 2018, the Commission fined Google €4.34 billion for illegal practices regarding Android mobile devices to strengthen the dominance of Google’s search engine.

Background

Today’s decision is addressed to Google LLC (previously Google Inc.) and Alphabet Inc., Google’s parent company.

The Commission’s investigation into the conduct covered by the present decision began as part of the broader Google Search investigation (case 39740).

On 14 July 2016, the Commission sent a Statement of Objections to Google setting out its preliminary views that the company had abused its dominant position by artificially restricting the possibility of third party websites to display search advertisements from Google’s competitors.

Article 102 of the Treaty on the Functioning of the European Union (TFEU) and Article 54 of the EEA Agreement prohibit the abuse of a dominant position.

Fines imposed on companies found in breach of EU antitrust rules are paid into the general EU budget. This money is not earmarked for particular expenses, but Member States’ contributions to the EU budget for the following year are reduced accordingly. The fines therefore help to finance the EU and reduce the burden for taxpayers.

More information on today’s decision is available on the Commission’s competition website in the public case register under the case number 40411.

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EU Politics

Innovation performance keeps improving in EU Member States and regions

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The Commission has today released the European Innovation Scoreboard 2021, which shows that Europe’s innovation performance continues to improve across the EU. On average, innovation performance has increased by 12.5% since 2014. There is continued convergence within the EU, with lower performing countries growing faster than higher performing ones, therefore closing the innovation gap among them. According to the 2021 Regional Innovation Scoreboard also published today, this trend applies to innovation across EU regions. In the global landscape, the EU is performing better than its competitors like China, Brazil, South Africa, Russia, and India, while South Korea, Canada, Australia, the United States, and Japan have a performance lead over the EU. This year’s European Innovation Scoreboard is based on a revised framework, which includes new indicators on digitalisation and environmental sustainability, bringing the scoreboard more in line with the EU political priorities.

Key findings 

 Based on their scores, EU countries fall into four performance groups: Innovation leaders, Strong innovators, Moderate innovators and Emerging innovators. 

  • Sweden continues to be the  EU Innovation Leader, followed by Finland, Denmark and Belgium, all with innovation performance well above the EU average. 
  • The performance groups tend to be geographically concentrated, with the Innovation Leaders and most Strong Innovators being located in Northern and Western Europe, and most of the Moderate and Emerging Innovators in Southern and Eastern Europe. 
  • On average, the innovation performance of the EU has increased by 12.5 percentage points since 2014.  Performance has increased the most in Cyprus, Estonia, Greece, Italy and Lithuania. 
  • Five Member States witnessed an improvement in performance of 25 percentage points or more (Cyprus, Estonia, Greece, Italy and Lithuania). Four Member States had a performance improvement of between 15 and 25 percentage points (Belgium, Croatia, Finland, and Sweden). For eight Member States, performance improved between 10 and 15 percentage points (Austria, Czechia, Germany, Latvia Malta, Netherlands, Poland and Spain). The remaining 10 Member States witnessed an improvement in performance of up to ten percentage points.
  • Comparing the EU average to a selection of global competitors, South Korea is the most innovative country, performing 36% above the score of the EU in 2014 and 21% above the EU in 2021. The EU is ahead of China, Brazil, South Africa, Russia, and India in this year’s EIS, while Canada, Australia, the United States, and Japan have a performance lead over the EU. 
  • Innovation performance has increased for 225 regions out of the total of 240 regions over the period since 2014. There has been a process of convergence in regional performance over time, with decreasing performance differences between regions. 
  • The most innovative region in Europe is Stockholm in Sweden, followed by Etelä-Suomi in Finland, and Oberbayern in Germany. Hovedstaden in Denmark is in fourth place, and Zürich in Switzerland is in fifth place. 

Members of the College said:

Thierry Breton, Commissioner for Internal Market, said: “European innovations like the technologies at the heart of new COVID-19 vaccines have been crucial to fighting and overcoming the current pandemic. The EU’s improved innovation performance is a very positive signal. Investing in innovation is investing in our ability to be at the technological forefront for a sustainable, digital and resilient economy and society.”

Mariya Gabriel, Commissioner for Innovation, Research, Culture, Education and Youth, said: “Europe’s commitment to innovation is shown by its continuous improvement in innovation performance. All EU Member States and regions are investing more on innovation and the innovation gap in the EU is decreasing. In support of Europe’s innovation capacity, Horizon Europe will promote excellence and support top researchers and innovators to drive the systemic changes needed to ensure a green, healthy and resilient Europe.”

Elisa Ferreira, Commissioner for Cohesion and Reforms, said: “Innovation is increasingly one of the deciding factors to promote development and convergence across the European. While these important reports highlight the progress made in much of Europe, a significant innovation divide still remains, particularly for less developed and peripheral regions. Addressing the innovation divide is critical for economic, social and territorial cohesion. Cohesion funds will continue to promote smart and place based innovation strategies.

Background 

The European innovation scoreboard provides a comparative analysis of innovation performance in EU countries, other European countries and regional neighbors. It assesses relative strengths and weaknesses of national innovation systems and helps countries identify areas they need to address. The first European innovation scoreboard was released in 2001. The European Innovation Scoreboard demonstrates the commitment of the EU and its Member States to research and innovation that is based on excellence and that it is competitive, open and talent-driven. It also supports the development of policies to enhance innovation in Europe and inform policy makers in the rapidly evolving global context. Moreover, research and innovation is an essential part of the coordinated EU response to the coronavirus crisis, supporting also Europe’s sustainable and inclusive recovery. Measuring innovation performance is a key element in achieving this goal.  

About two-thirds of Europe’s productivity growth over the last decades has been driven by innovation, according to the report ‘Science, Research and Innovation performance of the EU, 2020 (SRIP)‘. Research and innovation boost the resilience of our production sectors, the competitiveness of our economies and the digital and ecological transformations of our societies. They also ensure preparedness for the future and are critical to deliver on the European Green Deal and on the Digital Compass.  Horizon Europe, the EU’s research and innovation programme for the years 2021-2027 with a budget of €95.5 billion, will help accelerate Europe’s environmental and digital transformations. Over the same period, cohesion policy will invest over €56.8 billion in research and innovation capacities, digitalisation and skills to support the innovative and green economic transformation of the European regions. These aims also lie at the core of the EU’s updated Industrial Strategy, which proposes new measures to strengthen the resilience of our Single Market. The Strategy also proposes measures to respond to our dependencies in key strategic areas as well as accelerate the green and digital transitions – all of which will be instrumental in boosting the EU’s performance in innovation. In addition, the European Research Area (ERA) will create a single and borderless market for research, innovation and technology, based on excellence, while at the same time boosting the market uptake of research and innovation results across the EU.

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EU clears way for the EU Digital COVID Certificate

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Today, the Presidents of the three EU institutions, the European Parliament, the Council of the EU and the European Commission attended the official signing ceremony for the Regulation on the EU Digital COVID Certificate, marking the end of the legislative process. On this occasion Presidents David Sassoli and Ursula von der Leyen and Prime Minister António Costa said:

“The EU Digital COVID Certificate is a symbol of what Europe stands for. Of a Europe that does not falter when put to the test. A Europe that unites and grows when faced with challenges. Our Union showed again that we work best when we work together. The EU Digital COVID Certificate Regulation was agreed between our institutions in the record time of 62 days. While we worked through the legislative process, we also built the technical backbone of the system, the EU gateway, which is live since 1 June.

We can be proud of this great achievement. The Europe that we all know and that we all want back is a Europe without barriers. The EU Certificate will again enable citizens to enjoy this most tangible and cherished of EU rights – the right to free movement. Signed into law today, it will enable us to travel more safely this summer. Today we reaffirm together that an open Europe prevails.”

EU Digital COVID Certificate

The aim of the EU Digital COVID Certificate is to facilitate safe and free movement inside the EU during the COVID-19 pandemic. All Europeans have the right to free movement, also without the certificate, but the certificate will facilitate travel, exempting holders from restrictions like quarantine.

The EU Digital COVID Certificate will be accessible for everyone and it will:

  • cover COVID-19 vaccination, test and recovery;
  • be free of charge and available in all EU languages;
  • be available in a digital and paper-based format;
  • be secure and include a digitally signed QR code;

Member States shall refrain from imposing additional travel restrictions on the holders of an EU Digital COVID Certificate, unless they are necessary and proportionate to safeguard public health.

In addition, the Commission committed to mobilising €100 million under the Emergency Support Instrument to support Member States in providing affordable tests.

The Regulation will apply for 12 months as of 1 July 2021.

Background

On 17 March 2021, the European Commission presented a proposal to create an EU COVID Certificate to facilitate the safe free movement of citizens within the EU during the pandemic. On 20 May, co-legislators reached a provisional agreement. On 1 June, the technical backbone of the systems, the EU gateway, went live. The gateway allows the verification of the security features contained in the QR codes.

Following the official signature today, the Regulation will enter into application on 1 July, with a phasing-in period of six weeks for the issuance of certificates for those Member States that need additional time.

13 Member States have already started to issue EU Digital COVID Certificates.

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EU proposes a strong multilateral trade response to the COVID-19 pandemic

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EU has submitted its proposal seeking the commitment of World Trade Organization (WTO) members for a multilateral trade action plan to expand the production of COVID-19 vaccines and treatments, and ensure universal and fair access. With this proposal to the WTO, divided in two communications, the EU underlines the WTO’s central role in the response to the COVID-19 pandemic and urges fellow WTO members to agree on a set of commitments, including on intellectual property rights.

President von der Leyen said: “The EU has actively shown solidarity with the world since the beginning of the pandemic. The European Union authorized exports of around half of the total amount of vaccines produced in Europe. Our immediate, urgent goal is to ensure equitable access for low – and middle-income countries, to share vaccines wider and faster. And we continue to help ramping up production. The EU proposes concrete short and medium term solutions to ensure universal access at affordable prices. I am looking forward to discuss with the G7 leaders next week how to achieve this goal. Beyond the current crisis, it is important to ensure global preparedness for future pandemics: diversifying manufacturing so that it is not centralised only in a handful of countries and strengthening the resilience of the healthcare infrastructure in least developed countries”.

Executive Vice-President and Commissioner for Trade Valdis Dombrovskis said: “The pandemic is still with us and there can be no room for complacency. We need to urgently concentrate on proposals that accelerate the equitable distribution of COVID-19 vaccines worldwide. In this respect, a strong multilateral trade response could deliver a huge boost in the fight against COVID-19. In reality, the main problem at this moment relates to the lack of sufficient manufacturing capacity to rapidly produce the required quantities. The objective must be to ensure that any available and adequate manufacturing capacity anywhere in the world is used for the COVID-19 vaccines production.”

More on the EU’s proposal

The EU calls on governments to:

  1. Ensure that COVID-19 vaccines, treatments and their components can cross borders freely;
  2. encourage producers to expand their production, while ensuring that those countries most in need of vaccines receive them at an affordable price, and;
  3. facilitate the use of compulsory licensing within the WTO’s existing Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The TRIPS Agreement already provides this flexibility, which is a legitimate tool during the pandemic that can be used swiftly where needed

The first element aims to limit the use of export restrictions and keep supply chains open. Vaccine-producing countries should be ready to export a fair share of their domestic production. Supply chains are highly interconnected and should not be disrupted. In addition, the EU considers that supplies to the COVAX Facility should never be restricted, and no measures should limit trade in inputs necessary for the production of COVID-19 vaccines and treatments. 

The second element calls on governments to strongly encourage and support vaccine manufacturers and developers to expand production and ensure the affordable supply of vaccines to low- and middle-income countries. Such actions could include licensing agreements, the sharing of expertise, tiered pricing including non-profit sales to low-income countries, contract manufacturing and new investments in manufacturing facilities in developing countries. The EU expects all vaccine producers and developers to make concrete pledges that increase supplies to vulnerable developing countries. In this regard, the EU welcomes the commitment of companies such as BioNTech and Pfizer, Johnson & Johnson and Moderna, which have already committed to delivering 1.3 billion doses this year to low-income countries at no profit and to middle-income countries at lower cost.

The third element, on intellectual property, sets out that voluntary licences are the most effective instrument to facilitate the expansion of production and sharing of expertise. Where voluntary cooperation fails, compulsory licences, whereby a government grants a targeted licence allowing a willing producer to make a vaccine without the consent of a patent holder, are a legitimate tool in the context of a pandemic. The EU considers that all WTO members should be ready to:

  • agree that the COVID-19 pandemic is an exceptional circumstance of national emergency, and that the requirement to negotiate with the rights’ holder may be legitimately waived where needed;
  • support manufacturers that are ready to produce vaccines and/or treatments at affordable prices under a compulsory licence so that the level of remuneration paid by the manufacturer to the patent holder reflects such affordable prices;
  • agree that the compulsory licence could cover any exports destined to countries that lack manufacturing capacity, including via the COVAX facility.

The EU is also tabling a dedicated communication on intellectual property to the WTO body in charge of implementing the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Council). Here, the EU provides more detail and clarity on each of the three points on intellectual property and links them with the specific provisions in the TRIPS Agreement. As regards the broad waiver proposed by a number of WTO members, the European Commission, while ready to discuss any option that helps end the pandemic as soon as possible, is not convinced that this would provide the best immediate response to reach the objective of the widest and timely distribution of COVID-19 vaccines that the world urgently needs. Today’s proposals aim at achieving that objective in a swift and effective manner.

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