Google fined €1.49b for practices on the online advertising market

The formal investigation was prompted by complaints examined by the Commission in 2010. Following a nine year investigation, the Commission decided to fine Google €1.49 billion in respect of alleged misconducts that lasted over 10 years regarding online search advertising intermediation services on third-party websites. The Commission considered that the relevant restrictive clauses contributed to denying Google's rivals the possibility to compete on the merits and to innovate.

The Commission found that Google was the market leader in online search advertising intermediation in the European Economic Area with a market share above 70% from 2006 to 2016.

The Commission states that Google's rivals were not able to compete on the merits due to:

• the imposition, from 2006, of an exclusive supply obligation which prohibited publishers from placing search adverts from competitors on their search results pages;
• the replacement, from March 2009, of these exclusivity clauses by "Premium Placement" clauses that required publishers to reserve the "most profitable space" on their search results pages for Google's adverts and request a minimum number of Google ads;
• the inclusion, from March 2009, of an obligation for publishers to seek written approval from Google before making changes to the way in which any rival adverts were displayed.

According to the findings of the Commission, the above-mentioned clauses concerned over half the market by turnover from 2006 to 2016. The exclusivity clauses prevented publishers from placing search adverts of Google's competitors on their search results pages while the 'relaxed exclusivity' provisions prevented Google's rivals from placing these adverts in the most visible and clicked parts of the websites' search results pages and enabled Google to monitor how attractive and clicked on competing search adverts could be.

In 2014, a series of commitments that would have seen Google make various changes to its contract terms were tested and eventually rejected by the Commission following submissions from third parties. Nevertheless, despite the Commission's continued antitrust probe, in 2016 Google voluntarily introduced the changes discussed in its proposed 2014 commitments, which marks the point when the infringement is considered to have terminated.

With thanks to Camille Ammeloot of Ashurst for her contribution.