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Google’s antitrust proposals under scrutiny

8 May, 2013

On 25 April 2013, the European Commission invited all interested parties to comment on Google’s proposed commitments to meet the Commission’s concerns formally drafted in March 2013 regarding to Google’s four types of businesses that might violate EU antitrust rules prohibiting the abuse of a dominant position.

The Commission has concerns that Google might abuse its dominant position on the market by a favourable treatment of links to Google’s own specialised web search services as compared to links to competing specialised web search services. The practices under discussion are:
- the use without consent of original content from third party web sites in Google’s specialised web search services;
- the agreements that oblige third party web sites (“publishers”) to obtain all or most of their online search advertisements from Google;
- contractual restrictions on the transferability of online search advertising campaigns to rival search advertising platforms;
- the management of such campaigns across Google's Adwords and rival search advertising platforms.

In response, Google has made proposals to try to address the Commission's concerns. The proposals are now offered by the Commission for consultation and comments may be made during a month. The Commission will take the comments into account in its analysis, and in case it reaches the conclusion that Google’s proposals address the four competition concerns, it may adopt a decision to make them legally binding on Google. Even if there is no proof of infringement of EU antitrust rules, if the company breaks such commitments, the Commission can impose a fine of up to 10% of its annual worldwide turnover.

Google proposes, for a 5-year period, for the European Economic Area:
- to label promoted links to its own specialised search services so that users can distinguish them from natural web search results, clearly separating these promoted links from other web search results by clear graphical features (such as a frame);
- to display links to three rival specialised search services close to its own services, in a clearly visible place for users;
- to offer all websites the option to opt-out from the use of all their content in Google's specialised search services, providing at the same time that any opt-out does not negatively affect the ranking of those web sites in Google's general web search results;
- to offer all specialised search web sites focusing on product search or local search the option to mark certain categories of information so that such information is not indexed or used by Google;
- to provide a mechanism allowing newspaper publishers to control the display of their content in Google News, on a web page per web page basis; - to stop including in its agreements any written or unwritten obligations that would require publishers to source online search advertisements exclusively from Google;
- to stop imposing obligations preventing advertisers from managing search advertising campaigns across competing advertising platforms.

Some opinions on Google’s proposals are already critical, explaining that the proposals are too little and come too late: “While the three competitive links are likely to drive some traffic to Google alternatives, from a user experience standpoint this is not the radical change I was imagining. In addition there’s apparently no requirement or constraint around where Google can put universal search results on the page. In other words, it can still show products, maps, flight search and so on, where it likes,” says Search Engine Land contributing editor Greg Sterling.

“Labelling results will do little or indeed nothing to prevent Google from manipulating search results and discriminating against competing services. It may even shepherd consumers towards clicking on Google services now highlighted in a frame. Labelling should not be the sole solution…The proposal to display links to three rival specialised services raises the natural question of who decides the promotional criteria. If that is Google, it leaves too much discretion in their lap while most importantly, not solving the problem of non-discriminatory choices for consumers,” was the statement of BEUC, the European Consumer Organisation.

Anyone can send the Commission observations on the commitments proposed by Google. The deadline to send the observations to the Commission is one month from publication in the Official Journal of the European Union.

EC press Release - Antitrust: Commission seeks feedback on commitments offered by Google to address competition concerns (25.04.2013)

CE memo - Commission seeks feedback on commitments offered by Google to address competition concerns – questions and answers

Roundup of Comments on Google’s Proposed Commitments to European Commission (25.04.2013)

Google’s commitments: too little, too late? (25.04.2013)



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