Comparing Microsoft and Google: The Concept of Exclusionary Abuse

Abstract

Comparison of the Microsoft and Google cases reveals a number of differences. Microsoft involved two recognized exclusionary abuses, tying and failure by a monopoly to disclose information necessary for interoperability, as in the Decca case.1 Google has what appears to be high market shares (depending on how the market is defined) but it is not a monopoly, and therefore cannot be an essential facility. On any traditional interpretation of Article 102, Google is not committing an abuse. But three novel theories of harm have been suggested by companies complaining against Google: Google should list its competitors’ websites, it should give them all the benefits it gives to its associated companies, and it should be obliged to make any improvements suggested by the Commission. However, although it is an abuse to create an obstacle for competitors, a dominant company without an essential facility never has an obligation to help them. If the Commission used Article 102(b) as the definition of exclusionary abuse, as the Court did in GlaxoSmithKline,2 it would be clear that none of these theories describe exclusionary conduct. If there is no abuse, there cannot be a remedy.