Abuse of dominance and related rights – French Competition Authority accepts commitments proposed by Google

On 21 June, in its decision n°22-D-13, the French Competition Authority (FCA) has accepted commitments proposed by Google and has consequently put an end to the proceedings opened in 2019 regarding abuse of dominance and press publishers’ related rights (see press release and full text of the decision in French). However, whether this decision signals the end of the antitrust battle between Google, the FCA, press publishers and news agencies is uncertain, as the implementation of the commitments may raise difficulties in coming years.

The procedure so far 

The dispute stems from the conditions of implementation of Directive (EU) 2019/790 in France by Google. In short, the Directive has created a right for remuneration for press publishers and news agencies applicable when Internet platforms re-use their content (related rights). When the French law implementing the directive entered into force, Google sought to compel press publishers and news agencies to grant Google free licenses over their content.

Following complaints filed in 2019 by several unions representing press publishers and news agencies, the FCA decided to investigate the case which opened the door to an antitrust saga:

• In a decision n°20-MC-01 dated April 9th 2020, the FCA considered that Google may have abused its dominant position and to this end ordered interim measures. The FCA notably ordered Google to negotiate in good faith with press publishers and news agencies at their request and to define a remuneration according to transparent, objective, and non-discriminatory criteria.
  
  
• Google filed an appeal against the FCA’s decision imposing interim measures which was (mostly) rejected by the Paris Court of Appeal in a court ruling dated October 8th 2020.
  
  
• The decision imposing interim measures led to, we understand, heated negotiations between Google and press publishers, which paved the way to an agreement reached in January 2021 between Google and the main French publishers’ association; and
  
  
• In a decision n°21-D-17 dated July 12th 2021, the FCA considered that Google did not comply with the decision n°20-MC-01 imposing interim measures and fined Google up to EUR 500 million.

The end of the proceedings against Google

This latest decision now puts an end to the proceedings opened in 2019 by accepting commitments proposed by Google. There is no real surprise in finding out that in this new decision, the FCA considers that Google holds an “extraordinary” dominant position on the French market for general search services. The FCA further considers that Google may have abused its dominant position by:

• imposing unfair trading conditions;
  
  
• treating publishers and news agencies in a discriminatory manner; and
  
  
• circumventing the applicable law on related rights.

The FCA decided to accept Google’s commitments without imposing any further sanction. These commitments were heavily negotiated between Google and the FCA, were subject to a market investigation and were amended several times before their acceptance by the FCA.

Google’s commitments in a nutshell

The commitments undertaken by Google are quite similar to the interim measures imposed on Google in its decision n°20-MC-01 and are also designed to address the concerns identified by the FCA in the decision n°21-D-17 fining Google for non-compliance with the interim measures.

In a nutshell:

• Google will negotiate in good faith with all press publishers and news agencies at their request and evaluate the remuneration due based on transparent, objective and non-discriminatory criteria.
  
  
• Google will have to communicate all information necessary to a transparent evaluation of the remuneration in a two steps’ process which include precise deadlines.
  
  
• Google will ensure that the negotiations do not affect other economic relationship that may exist between Google and the press publishers or news agencies.
  
  
• Google will withdraw its appeal against the decision fining Google for non-compliance with interim measures (i.e. the fine of EUR 500 million is definitive).
  
  
• Google and press publishers may go in front of an arbitration court, at Google’s expenses, in case of difficulties in the negotiations.
  
  
• An independent trustee will be appointed to control the implementation of the commitments.

The commitments will be applicable to all publishers and news agencies that fall within the scope on the law on related rights for a period of five years (which may be renewed by the FCA for an additional period of five years).

Three things to remember

In the immediate aftermath of the decision, here are a few takeaways:

1. Overall, digital and Big Tech are high on the policy agenda of the FCA this year, as previously announced by Benoît Coeuré, Head of the FCA, in public statements made in January 2022.
   
   
2. The FCA does not hesitate to use available procedural tools (i.e. interim measures and commitments) and legal tests to apprehend practices implemented by the Big Tech.
   
   
3. The FCA makes, again, the choice to follow a commitment or a settlement procedure in the context of a complex investigation regarding Big Tech. The FCA hence avoids the need to provide a detailed analysis of the theory of harm used as well as risks of subsequent litigation. The use of a commitment procedure in this case has been criticised by stakeholders during the market test since they fear that Google will be able to circumvent compliance with such commitments, as according to the FCA Google did with the interim measures imposed in 2020.