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Google will 'pre-select' an 'independent' competition inspector in EU search case

Ad giant submits candidates but Brussels has final say, apparently

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Update Competition chiefs in Brussels have begun sending out rejection letters to complainants in the long-running Google search antitrust case, revealing - among other things - that the ad giant will be picking candidates for the role of "monitoring trustee".

The person or persons appointed to the role will be expected to independently scrutinise Google's search biz practices over the course of five years if - as is planned by competition chief Joaquin Almunia - a settlement deal is inked with Mountain View later this year. They will also be required to spot where any breaches of the settlement deal might occur in a market that is constantly changing.

In a missive to German outfit Hot Maps – one of 19 companies that submitted complaints to the European Commission about Google's alleged abuse of dominance in the search market – DG Comp officials told the firm that its concerns over Google being allowed to preselect the monitoring trustee were "unfounded."

It said Hot Maps had failed to "substantiate" how Google's involvement in the process would "affect the adequacy of the proposed commitments". The EC wrote:

The proposed commitments provide that the Commission will have discretion to approve or reject the proposed trustee candidates that will be preselected by Google. It will therefore be the Commission, and not Google, that will ultimately decide on who will be appointed as monitoring trustee.

Director-General Alexander Italianer, who penned the letter on behalf of the EC, added that the monitoring trustee "will have to be independent of Google" while the proposed commitments are in place and for three years after the expiry of the mandate.

He said that the individual "shall not be exposed to a conflict of interest" and the EC will closely "monitor compliance".

Back in February El Reg quizzed Almunia about the selection process for such an inspector - whose pay packet will be covered by Google - during an interview with reporters in London.

He said at the time that he had no idea who might fill such a difficult role, but insisted that the Commission, and not Google, would be searching for and hiring an appropriate candidate.

"It is extremely challenging, but extremely interesting. I hope we will find the best," he said at the time.

Hot Maps was told in the letter, seen by The Reg, that:

[T]he Commission does not intend to conduct a further investigation under Article 7 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty ('Regulation 1/2003')1 into your allegations that certain of Google’s business practices infringe Article 102 of the Treaty on the Functioning of the European Union.

Throughout the missive, the EC argued that Hot Maps complaints on specific issues relating to Google's revised formal offer of concessions were "erroneous", "misplaced" or already addressed in the commitment package.

Hot Maps had also griped about the Commission's decision to ignore search queries carried out by EU netizens on Google.com.

The mapping outfit complained that "Google could configure its services so that all search traffic on Google would be directed through the Google.com domain, and would therefore escape the application of the proposed commitments". Hot Maps added that, similarly, search queries - such as those performed on new devices and new entry points, or via future specialised search services - would not be covered based on the current commitments that Almunia has preliminarily accepted from Mountain View.

The Commission disagreed, however. The EC said that Google had promised not to "change existing mechanisms for users located in the EEA [European Economic Area] to access Google search at the google.com domain". It added: "This will ensure that searches from users located in the EEA on the google.com domain remain at their present level."

Brussels officials were satisfied, it would seem, with stats provided by Google that appeared to show that fewer than five per cent of all searches by EEA netizens were performed on the google.com domain.

It said:

Google will maintain its existing redirection principles whereby EEA-based users that access Google are redirected by default to their country's Google domain. Google will also not make the option to access the google.com domain more conspicuous than at present.

In other words, a "use Google.com" button will remain at the bottom of the search engine's page once any such settlement with Almunia is in place. ®

Update

Subsequent to the publication of this story, we asked the DG for clarity on whether Google would be picking every single candidate (which the Commission would then vet), or whether the EC itself would offer up any of its own candidates. This was its response:

In the first instance, Google proposes a list of candidates and the Commission chooses from them. If the Commission ultimately deems that none of Google's proposed candidates are suitable, it can appoint its own candidate. Of course the trustee has to be independent from Google.

It adds:

The monitoring trustee would assist the Commission in controlling that Google is faithfully implementing the commitments. Monitoring trustees cannot legally take decisions on behalf of the Commission, but they can provide the Commission with technical advice on any aspect related to the implementation of the commitments. For instance, third parties that consider that Google is failing to implement the commitments properly would have the opportunity to raise the matter with the monitoring trustee. If the monitoring trustee considers that the complaint is well grounded, he would inform the Commission and substantiate the concern.
The monitoring trustee would also provide the Commission with reports on the implementation of the commitments, on a periodic basis, as well on an ad hoc basis when necessary. In particular, the monitoring trustee would analyse all new implementations of Google's specialised search services and check whether they comply with the principles set out in the commitments.

So now we know. The Register will be following the selection and appointment of any candidates closely.

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