The European Commission’s decision in 2017 to find Google guilty of abusing its dominant market position and self-favouring its subsidiary service is still highly controversial. A key reason for the controversy is the decision made by the Federal Trade Commission to close its investigation into the same conduct in 2012. This noted divergence between American and European competition law is interesting for several reasons, particularly because it provides a strong evidence of how both jurisdictions are reacting to the challenges of enforcing antitrust law in digital markets.

Through detailed analysis of previous case law, it becomes apparent that although both jurisdictions speak of the promotion of consumer welfare to be at the heart of their enforcement strategy, there remains a large discrepancy in the analysis of potential pro-competitive effects for consumers. American antitrust law is hallmarked by its adherence to the improvement of the economic welfare standard of the consumer, resulting in lower prices and better-quality products. If a highly concentrated market with imperfect competition produces the best deal for the consumer, then it is an acceptable outcome. European competition law differs in its application of general principles to preserve the structure of the competitive process, aiming to promote market behaviour that best resembles perfect competition. This approach enables the competitive process to naturally benefit consumers in terms of lower prices, better quality of products, and a larger range of available choices. Both approaches have their merits, but when it concerns the highly complex nature of digital markets, the European Commission’s decision in Google Shopping demonstrates a glaring flaw in European competition policy.

The European Commission has effectively second-guessed what best serves consumers in the general and comparative search service markets. Its intervention has led to a significant decrease in legal certainty with no clear and identifiable enhancement of consumer welfare. Treating these digital markets in the same way as their traditional counterparts has led to consumers in other markets missing out on the potential benefits that could have been provided to them through specialised search services. The Google Shopping decision demonstrates the danger of holding pre-conceptions about how consumers are best served by competition law. Instead of a futile effort to transform the structure of digital markets to resemble the traditional concept of perfect competition through antitrust intervention, it should be antitrust rules adapting to reflect the nature of digital markets.