'Game over'. End of the negotiation, end of the game. The statement of objections sent to Google in recent days by the European Commission for a possible abuse of a dominant position, it marks a new phase: the commitments presented by Google during this five-year period have not been considered sufficient by the Commission "to allay competition concerns" and if the infringement is ascertained, sanctions will be triggered .
In reality we are only at the appetizer: Brussels he recalled that the investigation into other aspects of Google's behavior in the European Economic Area continues, such as "the fact that the company, in its general search results, favors other specialized search services and the concerns deriving from the practice of copying competitors' web content (a practice known as 'scraping'), advertising exclusivity and undue restrictions imposed on advertisers”.
So the investigation, started in 2010, goes on but five years (and more time will pass), in a rapidly evolving technology market like the one on which Google is dominant, I am an eternity. Sufficient to create irreparable damage, to irreparably wipe out corporate realities that are scrambling to find their space. Wanting to quote Voltaire it comes to mind that really "the best is the enemy of the good". And for once Italy could be taken as an example. In 2006 the then Minister of Productive Activities Pierluigi Bersani included in the famous 'sheets' the procedure relating to the commitments that the investigated companies Antitrust they can file to close the game without risking a fine. The model was borrowed from European legislation but stringent terms, clear procedures, 'negotiations' in the light of the sun, thanks also to the transparent regulation that the Antitrust has given itself, make the difference.
It took the Antitrust just over a year to close 'his' case on Google, opened in the summer of 2009. It was the first Competition Authority to challenge the giant. There were no big fines but commitments were accepted presented by the Mountain View company. The alleged abuse against Google was no small matter: he behaved like a gunslinger in a Far West populated by unarmed people. The proceeding was initiated on the basis of a report from Fieg, the Italian Federation of Newspaper Publishers, relating to the Google News service Italia, with which Google aggregates, indexes and partially displays news published by many Italian publishers active online. According to the publishers Google News Italia, partially using the product of the individual online publishers would have had a negative impact on the ability of online publishers to attract users and advertising investments on their home pages. Italian publishers, who did not obtain any form of direct remuneration for the use of their content on Google News, would also not have had the possibility of choosing whether or not to include the news published on their websites on the portal itself: Google made it possible a publisher not to appear in Google News, but this resulted in the publisher's content being excluded from Google's own search engine. The condition was extremely penalizing because the presence on the Google search engine is crucial for the ability of a website to attract visitors and therefore obtain revenues from advertising sales, given the very high diffusion of this engine among users.
Along the way, the Antitrust came across a other potentially abusive behavior: the conditions imposed in Italy on website publishers in brokerage contracts for online advertising sales which demonstrated Google's arrogance on the internet market.
Under investigation, in particular, ended up thereto AdSense network, an affiliate program through which website owners could sell advertising space using Google as an intermediary. Users of the AdSense program did indeed receive a fee but the sums were determined by Google from time to time in its absolute discretion; Google undertook no obligation to disclose how this share was calculated; payments were calculated solely on the basis of records kept by Google; Google may also change the pricing and/or payment structure at any time in its sole discretion. In short, a despotic father-owner who made it impossible for publishers adhering to the AdSense program to plan the development and improvement of their websites as well as to appreciate the convenience of any other offers from competing intermediaries.
The affair, as mentioned, ended with the acceptance of the commitments presented by Google which had, as a counterpart, the possibility of exiting the procedure unscathed without ascertaining the infringement. And at stake was not only the risk of a maxi-fine but that of having to face, in cascades, billionaire lawsuits for compensation for antitrust damages, as well as the obligation to comply with the antitrust diktat.
The Authority led at the time by Antonio Catricalà, on the other hand obtained greater control from online publishers over their content within the Google News service, more transparency and verifiability of the economic conditions applied by website companies that made use of Google's advertising intermediation services, removal of the prohibition the absolute prohibition of detections by third parties of the number of clicks made by users on individual advertisements, albeit on condition that the technologies used were compatible with the technical and procedural conditions disclosed by Google.
Then, as today, after the acceptance by the Italian Antitrust of the commitments presented by Booking.com, there was some grumbling. Could more be done? Perhaps. However, excluding the possibility of snatching more incisive commitments from Google, the uncertainties on the table, as always happens when the Antitrust sanctions, would not have been insignificant. Pass a scissors to a possible maxi sanction by the administrative justice, the real risk would have been an annulment of the sanction: any behavior imposed on Google as a result of the sentence would have been canceled and the giant would have started to make good and bad times again. And even in the case of confirmation of the prosecution by the TAR and the Council of State, the Antitrust would have had to wait at least for the first instance judgment to impose virtuous behavior on Google. Meanwhile the little ones would probably have been eaten and digested by the Giant.
