Google — facing the possibility of a penalty of around $4 billion — is trying to cut a deal with European antitrust regulators that would settle the regulators' objections without having to pay a fine.
It's not certain that an agreement can be reached, but if one is, it will have a direct impact on the United States. Joaquin Almunia, EU competition commissioner, said that any concessions the Internet giant offers to resolve the EU's antitrust concerns would be applied worldwide.
"We will look for worldwide solutions; it will not be very useful to get European-wide solutions," he said.
One of the main complaints against Google is the way it unfairly favors its own properties ahead of competitors in search results. We documented that two years ago in our study, Traffic Report: How Google is Squeezing out Competitors and Muscling Into New Markets.
In May the Commission said it was concerned that Google was favoring its own services in search, copying material from websites of competitors without permission, shutting out advertising competition and placing restrictions on the portability of online search advertising campaigns from its platform AdWords to the platforms of competitors. Almunia told the company to offer changes or face a formal statement of objections with the risk of fines in the billions of dollars. In Europe antitrust penalties can be imposed before a court proceeding.
At the time I predicted that Google would not offer meaningful remedies. Despite my skepticism, the EU is saying that Google is apparently responding. The New York Times quoted Almunia from a news conference Wednesday:
"We were trying to clarify to them how these solutions should be established. They were exploring with us what kind of solutions we were asking for, and now we have enough clarifications so as to start the process of technical meetings.”
“They will try to solve it. And I have reasons to believe that they think it’s worth it."
Funny how $4 billion concentrates the mind, isn't it.
Reportedly, one of the things that moved the possibility of a settlement forward was that Google agreed that any concessions it makes on search will apply to all platforms including computers and mobile devices.
I'm sure the EU is acting in good faith. I have my doubts about Google. The real difficulty in accurately assessing the situation is the secrecy that surrounds the negotiations. We simply don't know what Google has proposed and what the EU wants. When an antitrust case gets to this stage, it really all should be on the public record.
Here is what another critic said, as reported by The New York Times:
“For years, Google has said it deserves the benefit of the doubt,” said Jonathan Zuck, president of the Association for Competitive Technology, an industry group heavily financed by Microsoft. “Unfortunately, they’ve played us for fools every time.”
Mr. Zuck praised the commission’s “persistent work,” but said an “effective remedy” required an admission by Google of wrongdoing. “Without that understanding on the part of Google, it will never implement the kind of fundamental changes to its business practices that are necessary to curb these abuses,” he said.
Besides the the European antitrust investigation, the Internet giant faces antitrust investigations by the U.S. Federal Trade Commission and several states. Antitrust officials in Korea, India and Brazil are also looking into Google's business practices. A European deal could well serve as a blueprint for settlements with other authorities. The FTC and the EU have been in close touch about their investigations.
One difference is that the FTC's probe includes an investigation into whether Google has abused its dominance of the Android operating system. The EU is not looking into that, but Almunia held out the possibility that it might.
Interestingly, in the semi-boilerplate language found in Google's just-filed Form 10-Q, is a clear indication that the Internet giant finally gets that it is under scrutiny:
We are subject to increased regulatory scrutiny that may negatively impact our business.
The growth of our company and our expansion into a variety of new fields implicate a variety of new regulatory issues, and we have experienced increased regulatory scrutiny as we have grown. In particular, we are cooperating with the regulatory authorities in the United States and abroad, including the U.S. Federal Trade Commission (FTC), the European Commission (EC), and several state attorneys general in investigations they are conducting with respect to our business and its impact on competition. Legislators and regulators, including those conducting investigations in the U.S. and Europe, may make legal and regulatory changes, or interpret and apply existing laws, in ways that make our products and services less useful to our users, require us to incur substantial costs, expose us to unanticipated civil or criminal liability, or cause us to change our business practices. These changes or increased costs could negatively impact our business and results of operations in material ways.
I hope the Europeans extract meaningful concessions, though I remain skeptical that will happen. Google has a history of stonewalling and foot-dragging. The best solution would be to break Google into different companies devoted to different lines of business.