Original URL: https://www.theregister.com/2014/02/07/joaquin_almunia_defends_handling_of_google_search_case/

Whacking Joaquin: EU competition chief defends handling of Google search case

Says planned settlement deal shouldn't be ridiculed by Microsoft

By Kelly Fiveash

Posted in Legal, 7th February 2014 15:40 GMT

Microsoft is wrong to suggest that the European Commission has caved in to Google's revised package of concessions to resolve a long-running competition dispute over the ad giant's search biz, antitrust boss Joaquin Almunia said today.

Brussels' vice president told The Register, during a discussion with journalists in London this morning, that Microsoft in particular knew first-hand what happens when a company had breached the commitments it previously agreed to in a settlement deal.

"I cannot understand some voices that have been involved in previous Article 9 commitment decisions, that now appear [to suggest] that a commitment decision is not an antitrust decision," said Almunia.

"I cannot understand this."

The EC's investigation into that case was sparked after browser-maker Opera complained that Microsoft was unfairly bundling Internet Explorer with its market-dominating desktop operating system.

The software giant agreed in late 2009 to offer consumers within the EU a choice of browsers for five years under a legally binding deal it had struck with the Commission. But the choice screen disappeared from its OS in February 2011. It remained missing in action for a staggering 17 months before anyone noticed.

Eventually, Brussels intervened.

"Microsoft, four years ago, was participating in a commitment decision, afterwards it breached the commitments and received a fine," Almunia said today.

However, as El Reg noted at the time, the fine itself was small with MS being ordered to pay €561m for the mishap, which translated to less than 1 per cent of the company's annual revenue in 2013.

Microsoft has been a vocal opponent of Google's perceived stranglehold on Europe's search market, where the company commands a dominant position.

Joaquin Almunia speaking in London on Friday

Lobby groups that it supports, including ICOMP, have expressed dismay with Almunia's handling of the more than three-year-long competition case.

The commissioner, who stands down from his role in November this year, said that he had undergone "tough negotiations" with Google. He added: "The third round [of proposals from Google] is able to eliminate our concerns in this particular investigation."

But Almunia was keen to stress that Google continued to face intense scrutiny from Brussels.

"We have other aspects that are being looked at regarding Google in the antitrust domain and other domains," he said.

The commissioner's office is currently weighing up complaints about Mountain View's Android operating system for smartphones, among other things.

Search is a moving target and nailing down breaches is going to be extremely tough

British search comparison website Foundem - the original complainant in the Google case - alleged on Wednesday that, based on Google's rejigged offer to Almunia, rivals would continue to be poorly treated on the company's search pages.

The criticism came after the EC had accepted Google's proposal to publicise the search services of three of its competitors alongside its own results.

But Foundem questioned Google's motives. It said:

The visibility of rival links is entirely irrelevant as long as they remain paid links.

Almunia hit back today by telling us that he preferred "to pay attention to the complainers' view once they [have] analysed what I have sent to them," he said. "Everybody should analyse the whole package of commitments and compare it with our list of concerns."

"I've heard some voices saying that 'well, Google will not pay and the rivals will pay.' It's not true - it's the same treatment," Almunia added.

He also claimed that the EC would engage complainants in detailed discussions that would be "much deeper than a market test". This was a response to gripes from rivals about the absence of a market test for Google's latest and final offer to Brussels.

The commissioner said that Google had submitted three proposals to the Commission, in part, because of the fast-moving nature of the search market.

In one month's time the way you receive results for the same query can change, and probably will change. you receive different results depending on where you are established, depending [on] your IP [address].

You can receive different information according to your preferences known to Google because of your previous use of the search engine.

So it's not a fixed target, it's a moving target and very fast moving.

Almunia admitted that remedies that might have appeared valid previously, had suddenly come unstuck. But he said that, in Google's latest offer, the commissioner's office had tried to ensure that the company's commitments, if they do become legally binding, were "future-proofed" for five years.

But the commissioner added that it was necessary to put an end to the "revised commitments/market tests" loop wherein all parties had become stuck and allow him to finalise his investigation into Google's search business in Europe.

If the Commission does proceed with a five-year-long legally binding settlement with Google, an independent monitoring trustee – whose pay packet will come from Mountain View – has a tough job ahead.

That person will be required to spot where any breaches of the settlement deal might occur in a market that is constantly changing.

Almunia told us that – at this stage – he had no idea who might fill such a difficult role, but said 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.

Almunia hopes to put the case to bed before his tenure ends. A settlement deal based on Google's revised offer could be in place by the summer, the commissioner said. ®