With its recent imposition of a record 4.3 billion EUR fine against Google for abuse of dominant position, the European Commission may have cemented its reputation for taking an aggressive enforcement stance against US tech giants, particularly when contrasted with the US antitrust enforcers’ more hands-off approach in this sector.

President Trump tweeted at the time that “the EU truly have taken advantage of the US, but not for long”, suggesting that the European Commission’s antitrust enforcement agenda is influenced by political and/or trade motivations. Yet, the Google decision follows the European Commission’s traditional abuse of dominance analytical framework, which can be simply articulated as follows: if a company is dominant, it has a special responsibility not to deny other companies the chance to compete on the merits. If there is competition on the merits, consumers will benefit from lower prices and/or wider choices.

The European Commission has made it clear that it will focus on conduct that is most harmful to consumers and does not equate being big with being bad. The current European Commissioner for competition often emphasizes the notion of fairness and the need for all companies to play by the rules in a socially responsible way serving users and not just maximizing profit, and has stressed that competition law enforcement in the EU is not about the nationality of the company. The Commissioner has explained that the Commission’s current focus on digital markets reflects the fact that these markets have enormous potential and market players yield significant influence: with this influence, comes a higher level of responsibility.

For an in-depth discussion on this topic, listen to Isabelle Rahman on Episode 2 of Sheppard Mullin’s new Nota Bene podcast.

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