LUXEMBOURG — Google went to the EU General Court to appeal a €2.42 billion fine imposed by Brussels, but one of the judges hearing the case on Friday unexpectedly suggested that the penalty should actually be higher.
Irish Judge Colm Mac Eochaidh, one of five panel judges, said the 2017 fine for Google’s preferential treatment of its own shopping service over rivals could be increased as it may not have been sufficient to deter the search giant from repeating its behavior.
He criticized the European Commission for not sufficiently explaining why it had imposed that exact fine, before making his radical suggestion that it could have been higher. His idea was made in open discussion and was not a concrete suggestion that the judges would take that course.
In its decision finding that Google had leveraged its dominance in general search, as the main entry point to the internet, to favor its own comparison shopping service over rivals, the Commission set out its methodology to calculate the fine.
Brussels set a basic amount based on the revenue of Google’s comparison shopping service in the 13 national markets where Google had acted anticompetitively during the last year of that behavior, which was 2016. Brussels then multiplied that amount by 1.3 to deter Google and other companies « of a similar size » from engaging in similar behavior and to reflect the size of Google’s overall turnover of over €81 billion in 2016.
Judge Mac Eochaidh criticized the absence of a detailed justification of that multiplier.
« Have you plucked a figure out of the air in terms of deterrence? » he asked the Commission.
The Commission’s lawyer Anthony Dawes responded: « Alphabet [Google’s parent company] has a particularly large turnover, which justifies both the fact that the Commission applied a multiplier and the level of that mulitiplier. »
But the judge then referred to the intentionality of Google’s conduct and suggested the court could actually increase the level of the fine.
« Have you been sufficiently deterred from repeating the behavior? » the judge asked Google’s lawyer, referring to recent complaints from online travel companies Expedia and Tripadvisor about « very similar » behavior.
Mac Eochaidh asked Google’s lawyer a last question, which he said European citizens would also ask: « You have been fined a large amount, but was it sufficient? Imagine you were fined €2.4 by your local authority for littering and you had €120 in your pocket — would you miss the €2.4? »
« I would be struck by the infringement finding. It is a very serious matter. It would be for myself and it is for Google, » responded Google lawyer Christopher Thomas.
When the Irish judge questioned the parties about what conditions the court could proceed under to adapt the fine, he was interrupted by the presiding judge, France’s Stéphane Gervasoni, who wanted to know why he was asking that question.
« I ask under what circumstances might the court be justified to increase or decrease fine? You have argued it might be decreased, » Mac Eochaidh replied to Gervasoni, seemingly revealing the other judge’s stance in the case.
According to Google’s lawyer, the court « does not have the competence [to increase the fine] because the Commission has not requested it. »
Google’s position is that the court failed to take into account the nature of the infringement as required by law, which should lead to the annulment of the entire decision.
According to Commission lawyer Dawes, on the other hand, « it would be possible for the court to increase the fine if that is what it is willing to do. »
Dawes argued that the court could do so « before the hearing, at the hearing or after the hearing » and that the debate could take place in writing or orally.
Gervasoni noted that it would be important to « guarantee the rights of defense » of the company during any such procedure.