Fining Google: a missed opportunity for legal

Abstract:

In December 2017, the European Commission imposed a record fine of €2.42 billion on Google in the Google Search (Shopping) Case for breach of Article 102TFEU. This article criticizes this fine as an infringement of the principle of legal certainty, since Google could not reasonably have foreseen that its conduct would amount to a breach of Article 102TFEU. It discusses the importance of legal certainty, as well as the broad powers and wide discretion the Commission enjoys in abuse of dominance cases, including the ability not to impose a fine. The article also provides an overview of the uncertainty which surrounded the application of the law at the time of the investigation, as well as the lack of clarity subsequently provided by the Decision. It is argued that, in imposing this record fine, the Commission has missed an opportunity to respect legal certainty, and combine the objective of deterrence with a desire to stimulate pro-competitive behaviour.