Information and Intermediation, Abuse of Dominance and Internet 'Neutrality'

Information and Intermediation, Abuse of Dominance and Internet 'Neutrality': 'Updating' Competition Policy under the Digital Single Market and the Google Investigations(?)

Andreas Theodoros Themelis [1]

Cite as: Themelis, A.T., "Information and Intermediation, Abuse of Dominance and Internet 'Neutrality': 'Updating' Competition Policy under the Digital Single Market and the Google Investigations(?)", European Journal of Law and Technology, Vol. 4, No. 3, 2013.

Abstract

The focus of the present article is on the issue of information and information intermediation in the internet environment, and its implications for competition policy. The analysis concentrates on the value and necessity of information in the internet-marketplace and on the position, use, and involvement of internet intermediaries in conduct which concerns the availability, manipulation, and diffusion of that information. This discussion is triggered by, and thereby concentrates upon, the EU Commission's Communication on the Digital Single Market and the recent Google investigations. Inevitably, the direction taken focuses on the principle of 'net neutrality' (as encompassed in the Communication), as this arguably appears to emerge (and gradually becoming incorporated) in the area of European competition policy for the internet and the associated issues of freedom and availability of information. The main argument advanced is that given this opportunity for attaining the 'Digital Single Market' and in light of the Google investigations, the Commission could appear to be 'updating' its analysis in its proposed agenda, evolving into an 'update' of competition policy particularly for the internet environment, that focuses on information and its 'neutral' treatment.

1. Introductory remarks

As a response to the European Council's request to prepare a roadmap for accomplishing a 'Digital Single Market' by year 2015, the 2012 Commission's Communication on the Digital Single Market (hereinafter DSM), [2] signifies a major attempt to reverse the negative status of internet-based cross-border trade in the European Union. [3] The Communication establishes an action plan envisaging a new market reality, in which the use of e-commerce is considerably strengthened to realise the Single Market objective, while enhancing conditions of competition throughout the EU. [4] Certainly, the argumentation for positive effects to competition accomplished through the internet is not novel. Nevertheless, it is essential that competition policy for internet-based trade is properly developed to attain the Communication's targets.

The main argument advanced in the present article is that given this opportunity for attaining the DSM objective, the Commission could appear to be 'updating' its analysis in its proposed agenda, evolving into an 'update' of competition policy particularly for the internet environment. This 'update' appears to be pursued especially through the inclusion of the net neutrality principle and the pursuit of this notion of neutrality for online markets and for the online content included therein. This agenda and the instruments and actions emerging from it, encompass certain important concerns arising in the internet-marketplace which can affect conditions of competition. More specifically, emphasis appears to be given to the value and use of information as well as on actions by information intermediaries (notably, search engines). These intermediaries assume a crucial role in/for this virtual environment's operation, influencing the way commercial activities take place.

In parallel to the DSM initiative, the Commission investigated Google's alleged anticompetitive practices. The Communication appears to incorporate certain concerns arising from this investigation, essentially relating to the control and use of information in the internet. More specifically, they relate to the actual exchangeable content forming the internet, its potential manipulation, issues of discrimination, and how it affects conditions of competition. [5] This is a major, complicated area for the application of competition law in online markets, since it deals with the internet's operational essence (information) and with practices previously not encountered with, especially in such virtual market context.

The present article focuses on the issues of information and information intermediation in the internet from a competition policy perspective. More specifically, the analysis concentrates on the value and necessity of information in the internet-marketplace. It also concentrates on the position, use, and involvement of internet intermediaries in conduct concerning the availability, manipulation and diffusion of information. This discussion is also triggered by the Google investigation. Inevitably, the analysis attempts to make a connection and incorporation of other competition policy concerns raised by the Communication. These are mainly related to the 'net neutrality' principle (and associated freedom to information concerns) [6] and with abusive practices preventing new market players from entering the internet-marketplace or from effectively competing therein.

The article is structured as follows: Part 2 presents the DSM initiative; Part 3 presents the Commission's Google investigation, the company's proposals, and comments on this case; Part 4 examines the issue of information and internet intermediation and these elements' role in shaping/affecting the internet-marketplace and influencing the process of competition; lastly, Part 5 advances the argument that the protection of (and access to) information appears to become a Commission's new competition policy priority. It also considers how this interrelates and converges with the core scope of the 'net neutrality' principle.

2. The 'Digital Single Market' priority

The Communication's emphasis on the utilization of internet technology derives from the realization that the internet is the most suitable medium to accelerate the process of European integration. In parallel, it is a medium to increase conditions of competition in the EU. This emphasis given over the internet's use as portrayed in the Communication, is mainly due to the internet technology's diffusion and 'infiltration' to society to an extent that transformed traditional social and commercial behaviour, radically affecting our activities and culture. [7] To place things in context, the reason allowing further integration, intense conditions of competition and benefits to be created, is the digital information exchange allowed through the internet's virtual space.

The benefits to derive from this overall rejuvenation inspired and triggered from the internet's abilities and increased usage, are expected to appear in a wide array. Most notably, they generate tangible benefits for consumers in terms of: lowering prices; wider choice availability; better quality; providing small and medium size enterprises (SMEs) with opportunities to develop/widen their operation area/demand base (allowing them to reach the entire EU and beyond); improving productivity/efficiency. [8] Furthermore, consumers also gain by carrying out secure cross-border activities. This significantly strengthens consumer trust in using the internet for transactions, cultural and social exchanges. [9] Additionally, such technologically-elevated commercial environment can eventually generate higher quality employment, diffused in the remotest EU areas. [10]

In adopting the Communication, the Commission sets a policy cornerstone. It signifies an important turn towards prioritizing the use of the online environment in an action plan setting a modernised European economy. This is a considerably elevated stance favouring the internet-based commercial and social environment at a pan-European level.

This plan's realisation can only be achieved through an amalgamation of actions that concern various areas/issues, ranging from technical/technological, legal, commercial and economic importance. Indeed, the Communication describes a systemic action plan to be followed for boosting online commerce, [11] and for strengthening a single harmonised framework for e-commerce and other commercial online services. [12] This action plan eventually allows the accomplishment of the abovementioned benefits for EU market participants. This systemic approach is necessary given that numerous factors are involved and affect commercial/social internet activities. Consequently, to achieve the enhancement of e-commerce and attain those expected benefits, the Commission lists five priorities. Each corresponds to obstacles to the DSM (not an exhaustive list), namely: firstly, the inadequate supply of legal, cross-border online services; secondly, there is not enough information for online service operators or protection for internet users; thirdly, inadequate payment and delivery systems; fourthly, many abuse cases and disputes that are difficult to settle; and finally insufficient use of high-speed communication networks and 'high-tech' solutions.

From these priorities is it evident that adopting this all-encompassing action plan (in endorsing the market's 'online transformation') necessitates a multidimensional approach (from a market perspective). This means that the virtual marketplace's enhancement requires input from all market players/stakeholders involved (consumers; producers; intermediaries; State(s); various authorities).

For each of the abovementioned obstacles, the Commission specifies numerous solutions as part of the action plan, concerning various law areas, eg internal market law; competition law; data protection, etc. All these are adopted in line and working in conjunction with the Digital Agenda for Europe plan initiatives. In turn, the Digital Agenda is the first of a combination of flagship initiatives to accomplish the Europe 2020 Strategy in transforming the EU economy through ICT and wide internet use. [13]

Undoubtedly, the DSM's attainment can neither be an action plan on paper setting unspecified objectives nor one following policies and establishing initiatives which derive from considerations that emerge from past experience (unavoidably deriving from the physical marketplace). This is so, especially since practices contrary to competition (and deficient market conditions) can emerge in the internet-marketplace in a new approach, generating outcomes not previously encountered with. Such developments necessitate the elaboration of market conditions and of the aforementioned market participants/stakeholders' involvement. This note is particularly relevant to competition policy, since new virtual marketplaces may demonstrate new challenges to the process and conditions of competition.

The discussion briefly turns to competition policy considerations portrayed in the Communication.

2.1 Competition policy considerations

Among the initiatives listed in the Communication as imperative measures for fulfilling the DSM, it refers to certain actions affecting competition policy planning in relation to the internet and e-commerce.

Under the general proposition that 'heightened competition between goods and services must also be encouraged', [14] the Commission lists areas of interest which appear to shape the competition policy priorities in the internet environment. These areas would assist in achieving the aforementioned objectives and benefits. These are: firstly, the rigorous enforcement of selective distribution; [15] secondly, preventing potential unfair practices (in B2Bs context) by stakeholders which misuse their bargaining power in attempting to obstruct new online operators; thirdly, preserving ' net neutrality', [16] and ensuring that end users can access and disseminate information and use their preferable applications and services; and lastly, preventing abusive behaviour originating in the online environment.

3. Related considerations on policy planning(?)

Looking at the Communication's competition policy initiatives from another standpoint, it is crucial to note that the reference to particular practices (and of counter-actions to be adopted in addressing them) appeared to point towards anticipating outcomes from investigations of alleged competition law infringements. As aforementioned, the Commission stated that its priorities are -also- with preserving 'net neutrality' and ensuring that end users are able to access and disseminate information, use applications/services of their choice, and preventing abusive behaviour originating in the online environment. Although the Commission did not refer further to the 'net neutrality' concept, in the context mentioned in the Communication, it is evident that it appears to refer to the idea of promoting the internet's open and neutral 'character', ie its openness as a platform; and the openness and availability of its content. These issues seemed to correspond to those arising in the Google investigations. [17]

The discussion in the following two parts turns to the developments of this investigation up to November 2013.

3.1 The Google investigations and preliminary conclusions

In relation to the investigation on Google's practices, the Commission examined allegations that Google abuses its dominant position in the web search and web advertising market categories. In particular, proceedings were opened (November 2010) following complaints by competing search service providers on the grounds that Google treated unfavourably their unpaid and sponsored search results, alongside the preferential treatment of Google's services.

On the 21/May/2012, [18] Commissioner Almunia announced that the Commission reached a number of preliminary conclusions on its 'Google investigation', identifying four practices which 'may be considered as abuses of dominance'. [19] Subsequently, in March 2013 the Commission formally informed Google on its preliminary findings, noting that there are four types of practices that 'may violate EU antitrust rules prohibiting the abuse of dominant position', [20] which will reduce consumers' choice and stifle innovation in the specialised search services and online search advertising areas. In parallel, the Commission initiated a 'consultation period' aiming at receiving market feedback on its findings and on the company's proposals. [21] The four identified concerns were:

  1. the favourable treatment (prominent display) of Google's own specialised web search services links in the list of results presented by the company as compared to competing ones, without informing users. In addition, competing results were downgraded to a low display position (either well below in the first results-page or in subsequent pages), thereby both limiting visibility and unduly diverting traffic away from competitors towards Google's own specialised search services (essentially, these results would be considered as non-relevant by consumers). This referred to services allowing users to search certain information on, eg restaurants, hotels, products, finance etc.); [22]
  2. the use of original content (eg user reviews) from other -competing- websites within its own specialised web search services. [23] Through this practice, Google benefits from competitors' investments even against their consent. Moreover, those that objected to this practice were given the option to opt out from Google's services altogether, something that would risk their operation's sustainability. Hence, the Commission considered that this practice essentially reduces incentives to invest on producing original content. In parallel, the practice limits incentives to use competing websites to acquire that specialised information since Google operates as the 'pool' of all such content;
  3. exclusivity requirements in Google's agreements obliging third party websites (so-called 'publishers', ie website owners) to obtain all/most of online search advertisements (displayed next to other search results). [24] The particular concern with such requirements is that they oblige websites not to display (or doing so only to a limited extent) competing online search advertisements. This reduces the choice offered to website users. Given Google's dominant position (EU-wide) in the search advertising intermediation market, these exclusivity requirements essentially limit consumers' choice and competitors do not have incentives to innovate since their access to consumers is limited; and
  4. certain contractual restrictions imposed by Google on the portability/transferability of online search advertising campaigns from its platform to competing ones and their management across Adwords and competing advertising platforms. [25] The concern with this practice is that Google artificially generates switching costs. This prevents/discourages advertisers from 'running' parallel campaigns on competing platforms. In turn, this reduces consumer choice and stifles such campaign innovation, whilst not returning any benefit.

3.2 Google's - inadequate - response and follow-up

To address the Commission's concerns, Google proposed certain commitments for the period of five years, namely: [26]

  1. on the favourable treatment concerns, Google proposed to act in three ways:

    'label promoted links to its own specialised search services so that users can distinguish them from natural web search results; clearly separate these promoted links from other web search results by clear graphical features (such as frame); display links to three rival specialised search services close to its own services, in a place that is clearly visible to users.'
  2. on concerns over the content's use, Google responded that it would:

    'offer all websites the option to opt-out from the use of all their content in Google's specialised search services, while ensuring that any opt-out does not unduly affect the ranking of those web sites in Google's general web search results; offer all specialised search web sites that focus on product search or local search the option to mark certain categories of information in such a way that such information is not indexed or used by Google; provide newspaper publishers with a mechanism allowing them to control on a web page per web page basis the display of their content in Google News.'
  3. on the exclusivity agreements, Google proposed to:

    'no longer include in its agreements with publishers any written or unwritten obligations that would require them to source online search advertisements exclusively from Google.'
  4. on contractual restrictions, Google proposed to:

    'no longer impose obligations that would prevent advertisers from managing search advertising campaigns across competing advertising platforms'.

From an enforcement perspective, these proposals were accompanied with the imposition of a Monitoring Trustee overseeing the commitments' market implementation.

Following the publication of the 'deal', the Commission announced the market testing phase until the end of May 2013. However, the feedback received was negative on the appropriateness/effectiveness of the above measures, heavily criticising the Commission for not making far-reaching commitments. In particular, the comparison site Foundem issued a report on the commitments, [27] stating that the Commission was 'playing into Google's hands' by assisting its long strategy to ' to transition commercial searches away from its natural search results and into its paid advertisements'.

Foundem 's argument is that in overall, the commitments offered are not sufficient to alleviate the concerns identified in relation to search services' manipulation. [28] Further strong criticism was made by various Press Publishers and their trade associations. [29] All these parties appear to have set a number of minimum criteria to be met by Google, which in essence follow the letter sent by Foundem and 11 other companies to Commisioner Almunia during their initial complaint. Their main argumentation, also adopted by the European Consumer Organisation (BEUC), appears to promote the idea for the neutral operation of the dominant search engine, ie that Google must be 'even-handed'. This notion means that the search engine ' must hold all services, including its own, to exactly the same standards, using exactly the same crawling, indexing, ranking, display, and penalty algorithms. ' [30]

Given the negative reactions, Commissioner Almunia prolonged the testing phase by the end of June 2013 to receive further comments, and predisposed that the Commission would ask for the improvement of Google's commitments. [31] Following the testing period's completion, he announced (July 17th 2013) that Google's commitments 'are not enough to overcome our concerns', [32] asking Google to review its proposals and provide better commitments.

In a European Parliament hearing in October 2013, [33] Commissioner Almunia revealed the negotiation of the new and improved commitments offered by Google. He emphasised that the new commitments better address the issue of future developments (whether these relate to abilities offered by Google's search engine or by the new devises using IT), something that is of particular importance given the dynamic pace of development of new economy markets. Additionally, he noted that the proposal for imposing an independent Monitoring Trustee to oversee Google's compliance remains.

More specifically, relevant to vertical search concerns, Google offers an improved way of linking specialised search services making them more visible, while providing competing service providers with the ability to place their logo and to offer 'dynamic texting' to their links. Furthermore, Google offers a new auction mechanism for specialised search services enabling smaller specialised search operators to be displayed.

Further commitments attempt to address the remaining concerns: ie, on the content's use, Google offers an opt-out and certain reassurances for avoiding to employ retaliatory measures; on the exclusivity agreements, Google's new commitment is to avoid incorporating any obligations imposing publishers to 'source their requirements for online search advertisements exclusively from Google in relation to queries from EEA users'; [34] and lastly, on the contractual obligations, Google's commitment is similar to its previous position, namely to terminate any kind of obligation preventing advertisers from 'porting and managing search advertising campaigns'. [35]

The Commissioner also re-emphasised his commitment in pursuing the 'settlement' route under Article 9 of Regulation 1/2003. The commitments will be market tested whilst Google will also provide empirical data to their support. Provided that the Commission's investigation is positive, then a formal decision is expected sometime in spring 2014.

3.3 A comment

Certain issues arising out of the Google investigations, the preliminary conclusions and the company's responses are worth noting.

3.3.1 Enforcement considerations

Firstly, relevant to competition enforcement, the Commissioner favours a quick resolution of competition issues. The investigations concern ' fast-moving' markets to which the reaction and resolution should be rapid in restoring competition (instead of lengthy Court proceedings) and reinforce market competition. [36] To this, Google also repeatedly offered its willingness to propose commitments, [37] and the Commission prefers this option to issuing a Statement of Objections. [38]

Thus, the Commissioner re-emphasised its stance on the treatment of the 'new economy' sector, ie it follows an interventionist approach, [39] although keeping a different view as to the implementation of this policy. [40] Consequently, there is a more cautious and restrained stance in relation to the enforcement of preliminary conclusions. This approach is also favourable to the company, eg in relation to confidentiality, [41] in avoiding other claims (eg essential facility claims). [42] From the Commission's perspective, this procedure ensures that competition to be strengthened, [43] whilst monitoring the mechanism that influences online content (information) and which provides with an entry point within the internet-marketplace.

But this case appears also to move beyond the strict boundaries of enforcement, encompassing/promoting other considerations and objectives beyond the mere tackling of -potential- abusive conduct.

3.3.2 The element of market neutrality

The argument can be advanced that the case relates to the Commission's priority in enhancing e-commerce and introducing and preserving a form of ' neutrality' over the internet-marketplace. This appears to be of corresponding match and complementarity to the 'net neutrality' principle that aims at achieving the internet's neutral character, while also promoting the ability to access and distribute information and ensuring market openness. [44] As the Commission reveals on its policy targets underpinning this principle:

'the essence of net neutrality and the issues underpinning the debate concern first and foremost how best to preserve the openness of this platform and to ensure that it can continue to provide high-quality services to all and to allow innovation to flourish, while contributing to enjoyment of and respect for fundamental rights, such as freedom of expression and freedom to conduct business.' [45]

Following this description, the objectives set out in the Communication appear to be encompassed in the Commission's logic underpinning its involvement in Google and reflected in its findings. For example, the lowering of the positioning in the search results list directly relates to the neutral operation and openness of such ubiquitous platforms. Moreover, the concerns over the use of original content and the incentives to invest are linked both to the openness of the platform and the ability to provide high-quality services and allow innovation to flourish.

Hence, in this case, the preservation of such neutrality within the internet will be particularly concerned with the way that online spaces operate (as marketplaces or as commercial 'terrains'/platforms). This is different from the infrastructural issues with which the 'net neutrality' principle was associated with in the telecommunications area (eg preserving the openness of networks). For example, it would essentially be concerned with the actual: availability of information (to which the element of neutrality refers to); the completeness of information (an element necessary for conditions of competition); the objectivity of information distribution; the quality of this content (qualitative here equals to diverse and innovative); and to access to information. It will moreover be operating alongside attempts to ensure that both end users (consumers) and companies (particularly SMEs, of European orientation), have the necessary access and pragmatic ability to produce/disseminate information. In addition, that they can create/use new applications/services, thereby promoting competition and spurring innovation -evidently, issues of innovation were particularly emphasised in the Commission's Google Press Release and Memo.

From this perspective, it is seen that intermediary agents are conceived as the most rational entry point in the internet-marketplace, or at least, the more influential point (a private, virtual, market 'arena'). This element dictates that they must remain neutral if conditions of competition are to further be enhanced. From a competition policy perspective, this neutrality element can arguably correspond -within these markets- to the degree of impartiality that dominant entities are required to demonstrate as being under a special responsibility not to distort effective competition. [46]

3.3.3 Resembling essential facilities

It should be noted that the case does not directly raise the issue of essential facilities (access to essential facilities), since there is no refusal to supply/exclusion of competitors in the strict sense. Yet the competitors' downgrading and the preferential treatment of the dominant's vertical services may be seen as an attempt for indirect market foreclosure -achieving de facto foreclosure. [47] From this perspective, one cannot but note the resemblance of the market access issue underpinning the Google investigations with that of access to essential facilities. It particularly resembles the issue of indispensability of access to the relevant -interoperability- information that arose in Microsoft. [48] This access issue refers to such actual, reasonable, and necessary access, sufficient to allow the pragmatic ability of competitors to operate on equal terms (on an 'equal footing') inside the perimeter of an online content created by the dominant search engine (the virtual space). Although this virtual market perimeter is of course of a private ownership, design, and production (private virtual marketplace), its popularity and the associated network effects produced cannot but emphasise its significance for the competitors' overall ability to operate effectively and efficiently in the internet. [49] Being so, this 'market perimeter' assumes an indispensable status for competitors.

Hence, the main consideration is that the search-service provided by Google is of such magnitude, [50] equalling it to an indispensable market mechanism. Such indispensability element suggests that this space is seen as the crucial virtual market 'terrain' to which all competitors must not only acquire access, but must have a neutral and equal treatment (the essence of the net neutrality). These are notions which, for the element of information, derive from the aforementioned telecommunications area. Else, in case where there is mere access but then subsequent devaluation/downgrading of competitors, then there is no realistic opportunity to progress more competition or achieve other commercial/social targets envisaged in the Communication. In order to succeed in these targets, smaller competitors/newcomers must necessarily use intermediation mechanisms effectively. Undoubtedly, this approach may also encompass other virtual marketplaces acquiring such a significant role and operation beyond search engines.

Following this line of argumentation, it appears that Article 102 TFEU is likewise used again (although this time, not in the strict context of essential facilities/refusal to supply) to provide the actual tool to allow effective and uninterrupted market presence of competing undertakings. Mere access is in any case ensured in this particular instance since the -successful- operation of intermediary agents requires the de facto inclusion and the display of competitors. In other words, there is not a direct refusal to supply or refusal to provide access, since such action undermines the search engine's success in the first place. The search engine has to be comprehensive, updated, and informative to be successful; it cannot produce irrelevant or limited results to end users.

3.3.4 From access to effective access

Following from the above, the crucial policy emphasis given by the Commission in these virtual markets appears to be placed a step beyond theaccess issue. Access is not a concern in the first place since competitors are included in the results' lists. Instead, as evident in Google, Article 102 TFEU is used and targets the operation of the market post-access, ie the competitors' treatment once inside the results' list. This is done in a manner that will effectively prevent private parties (owners and/or controllers of virtual marketplaces) from firstly, unavoidably allowing entry of competitors, but subsequently, using their power to negate these competitors' ability to effectively compete once inside that marketplace. In this sense, the issue of preferential treatment (and of discrimination under Article 102(2)(c)TFEU, as emerges in Google from the projected legal categorisation of the practices) is an issue of the substance of market access. This means that it concerns the true/pragmatic ability to effectively compete once inside the marketplace. This is so since it refers to the essence of being free and undistorted in order to operate within any kind of market, not merely to access these markets but subsequently face obstacles. In this case, given the ubiquitous status of internet intermediaries (examined below), this substance of market access may be equated to the neutral operation of the internet-marketplace. That refers to a condition that will allow competitors to operate without obstacles once included in that market.

This approach appears to touch upon fundamental questions on the operation of competition in the internet-marketplace. This is the case given that the enormous bundle of information creating this marketplace in the first place is predominantly controlled and diffused to the public through private entities. This means that in such virtual commercial spaces, choice availability is in a way 'sealed' inside a spectrum of choices produced in a certain hierarchical/taxonomical method by the dominant market player (evidently, in three out of four Google's practices, the Commission is concerned about consumer choice). [51] Being so, the issue of the actual ability to compete in the internet without any distortions touches upon issues of the ability (and freedom) to provide information. From the consumers' perspective, it relates to their ability to become more informed thereby to improve/strengthen their position in the process of competition. [52] This neutral treatment achieved through the intervention of competition policy can be conceived as a tool that will enhance information availability which is vital to the operation of competition. This is done through increasing choice availability and promoting alternative/more efficient online supply sources; minimising asymmetries; and positively influencing over achieving a systemic upgrading of economic conditions through the internet's use -as the DSM envisages.

Evidently, from the above, the Google investigation concentrated on the particularly complex issue of online intermediation and on that intermediary agent's actions, which has a significant involvement to the internet's operation between the demand/supply levels. Yet, very few are known and understood about: the intermediaries' operation; the internet-marketplace's operation; and importantly, about the significance of information in this virtual environment. The investigation is concerned with actions that primarily affect a vital market element, namely, information as a product, but also -and importantly- concerning information availability as a public good and its manipulation, that is both a complicated and an exceptional issue. This has mainly been of interest to competition policy only from a theoretical perspective.

These elements revolving around issues of information, its control and availability, and subsequently of information intermediation, necessitate a separate examination in identifying their importance to internet-based competition. To the present discussion, beyond being important in presenting these new challenges to competition policy for the internet, it is also necessary in indicating wider issues and challenges that competition policy attempts to address while in the process of achieving the DSM and the interaction and complementarity apparently created with other policies and principles. Through the attempted analysis, the value, the necessity, and the maintenance of information at competitive levels, as they emerge from the Commission's Communication and its involvement in Google, can be seen more emphatically.

The next part examines the concepts of information and of information intermediation. This discussion sets the basis for the subsequent analysis on the Commission's use of the net neutrality principle.

4. Information intermediation and competition

The internet presents an immense availability of information, continuously expanding/being altered, diminishing geographical boundaries and generating an unprecedented richness of information. [53] Intermediary agents (search engines, comparison websites etc) undertake the task to manage information (for profit), subsequently presenting it to consumers. [54] Such agents are described as parties in the process of competition, essentially acquiring the role of economic agents, intervening between the supply/demand sides by: collecting (aggregation) information; [55] conducting market research, making targeted selections on the demand/supply sides; [56] providing price/quality checks of the goods in transaction; [57] defining the transactions' terms etc. [58] These are essential services in virtual markets, therefore such agents are vital and indispensable. [59] Hence, these agents gather; filter; evaluate; classify; and disseminate (or block) information to consumers based on the latter's demands, but subject to any conditions (filtering) they apply. Such conditions vary and could range/lead to blocking certain information or degrading it in value/volume or treating it in preferential manner. This is an important process performed by the system designed by the agent(s) (eg search engine's architecture; filters). In Google, the issue under examination is the competitors' exposure inside the 'perimeter' of Google's results' list presented to users.

Certainly, intermediation and the intermediaries' role are not new phenomena to competition law and policy. Their role in connecting the supply and demand sides was examined in competition law cases (eg in relation to parallel behaviour) since their contribution to alleged collusive behaviour is important in determining their aggravating or mitigating role. [60] Nevertheless, it is interesting to note that whenever an intermediary agent was involved, the relevant information at issue corresponded to specific market conditions or to a state of the market being investigated. This means that information was a private good instead of a public good, [61] as the case appears to be with the Google investigation and the DSM policy priorities (those related to abuse of dominance in the Internet and access and dissemination of information).

In better understanding this distinction and the value of the public good element that is of concern in the Google and the net neutrality concept, it is useful to examine the certain aspects of information in detail.

4.1 Information necessity

Information availability and quality are important to conditions and the process of competition in the internet, as in any market. Even from a theoretical to competition perspective, complete information is a prerequisite in ensuring most efficient conditions. This enhanced competitiveness level is naturally achieved by informing producers/consumers on all market conditions affecting them [62] (presence of demand/supply; product value/quality).

Beyond theoretical interest, information is important to competition law enforcement, eg information exchange may facilitate collusive behaviour between undertakings. [63] Additionally, information can have important market value as an 'essential facility' or by forming part of such facility; [64] the dominant owner of such essential facility may engage into abusive conduct by restricting access to it (foreclosure). [65]

4.1.1 Type of information and competition

Evidently, information may neither be a concept nor a market condition. [66] Instead, it corresponds to specific characteristics of products/services or markets, eg product's price; the price's increase/decrease. Hence, information is a value; a state/condition in the specific market/industry; [67] a commodity traded; [68] the conditions of trading. [69] Information is available at any time, acquiring the form of an existing and standardised, evaluated and commercialised type of knowledge, generated for commercial exploitation. It is this information's subsequent use that can produce anticompetitive effects, and it is this notion of information traditionally in the focus of competition enforcement. Hence, information is not an abstract concept; it is the identity of a product/service. Thus, as a general concept, information always existed; however, it is its actual limitation degree (eg abuse) or the extent of its restriction (eg sharing) that is subject to competition law; these have been the Commission's main considerations so far in its enforcement efforts.

Alternatively, from a competition theory perspective, concerns are associated with information availability as an overall market condition. [70] The reality is however that information was always available to consumers in geographically defined markets since it was generated by the daily experience within geographical boundaries/perimeters. Since this was the overall market condition, competition rules/policy were unconcerned with the existence or absence (or monopolisation or foreclosure) of information. This may have been inconceivable in the first place. Instead, competition law (case law) dealt with situations where existing information either acquiring a product/service form (the actual product/service concerned was information) or a market state, was affected in an anticompetitive manner. [71] As abovementioned, this meant that information had to correspond to a product's/service's price (quality etc) or to market's state/condition (eg prices rising).

Nonetheless, this understanding and the concerns over the issue of information appear to change as internet technology advances, and situations emerge where information availability can be concentrated and manipulated in anticompetitive manners. Thus, in Google, concerns relate to the examination of information both as product/service (the classic treatment under competition policy) and also concerning the concept of information availability as a general market condition vital for competition (the actual availability of information for/about a given market, eg web-mapping services). The latter refers to the actual degree/type of information available to the supply/demand sides for the given product/service. [72] Hence, the concern is also with information 'inside' and 'about' the internet-marketplace, [73] and with subsequent actions performed by intermediaries controlling this information's flow. From this perspective, both Google and the Commission's policy initiative to enhance e-commerce bypasses the questions regarding the use of information as a product/service and its treatment under competition policy as in the past. Instead, they raise the issue of access to and actual availability of (ie neutral treatment) information as a necessary market condition within private virtual marketplaces for effective competition to take place.

Undoubtedly, this concern also relates to the internet-marketplace's structure and the position and importance of actors like information intermediaries. In examining further this issue, the discussion turns to the internet's structure and the importance of intermediation. This analysis assists in understanding the arguments produced by third parties like Foundem, in relation to Google's ubiquitous status as an internet getaway.

4.2 Market structure and information: the importance of internet intermediation

The internet's structure diverges from the physical/territorial market since it is an intangible virtual space which is not physically experienceable, yet within which commercial actions occur. The significance of this difference to competition is seen in the interaction between the supply and demand sides. In physical markets the former side has direct access to the territorial area where the latter resides, [74] engaging in daily interactions and information exchange, disseminating market experience. This experience manifesting inside an identified space (physical/territorial market 'arena') generates specific information on market elements (products' quality, price). [75]

Consequently, the physical markets' structure and hierarchy facilitates direct interaction which becomes the natural market process, [76] through the existence of physical establishments exposing products/services which consumers explore. [77] The market relationship between the supply and demand sides is voluntarily generated and maintained collectively within society inside geographical boundaries. Accordingly, information about the market; participants; available products etc, are all of public availability, without an absolute necessity to resort to third (intermediate) parties to acquire this information; although naturally, intermediary agents exist in the physical market, operating inside a known, accessible and physically experienced territorial space.

The internet-marketplace however, does not feature territorial/tangible characteristics. This negates attempts in 'mapping' and experiencing this virtual market similarly to the physical one. Also, the internet's design and infrastructural architecture may affect information availability necessary for competition to exist. [78] Such issues of infrastructural concern (ie access/quality of service of telecommunication networks) are dealt with from a net neutrality approach. Yet, that specific debate (using the net neutrality principle in the telecommunications area), is neither associated with competition within the internet-marketplace nor with online content nor with information availability in that virtual market. Certainly, in the same way that experience, knowledge, and information are generated in the physical market, so they can be created in the internet. However, it is necessary to use intermediate agents, [79] for performing the abovementioned actions (collect; filter; diffuse information). Essentially, they will provide with the 'terrain' upon which consumers interact commercially. This element of essentiality of the status, position, and use of an intermediary party that acquires such magnitude is the actual basis of the argumentation of third parties that objected to Google's commitments. [80]

Thus, in the internet, information availability is not 'regulated' by the empirical relationship created between consumers/producers as in the physical market. Instead, since the internet is a virtual, non-territorial space, it necessitates guidance/mapping alongside filtering that minimises costs -services provided by intermediaries. [81] Importantly, these services are concerned with the actual availability of information for and about the market. [82] Therefore, the intermediaries' purpose is the provision of information to consumers/producers, informing them of the actual existence of the virtual market and supply existing therein. Further search may reveal detailed information on specific products (eg price). But the actual point to be made -central in Google- is that apart from the use of information, potential competition problems may be concerned with the actual availability of information.

4.3 Types of internet intermediaries and competition

Internet intermediaries diverge in type and method of operation, eg search engines, specialist commercial databases, [83] Business-to-Business (B2B)/Business-to-Consumers (B2C) platforms, price-comparison websites, social media/networking websites. Search engines can be categorised as 'pure information' intermediary agents. [84] These agents' position gains major market operation significance, assuming a ubiquitous status through their ability to influence conditions of competition in the internet-marketplace. [85] Such influence is exerted by controlling information availability. Consumers use intermediaries for direct information and supply access, but recourse to them is not a constraint in pursuing complete information (something possibly entailing higher costs). [86] Essentially, using intermediaries may be necessary in accessing the internet-marketplace and online content in the first place. [87] For example, in order to identify the potential options for the supply of a service, consumers would ab initio use eg Google, and consult the results' list produced/displayed. [88]

Correspondingly, it is inevitable for producers to use intermediaries in establishing presence in the internet-marketplace. Consequently, for both sides' operation, the internet-marketplace is to a large extent synonymous with intermediaries since they provide with the necessary commercial space to operate ('two-sided' markets concept). [89] Obviously, intermediaries do not form the actual marketplace, but offer access and information for it; as aforesaid, they give a 'terrain' for creating the virtual commercial space.

Practically, consumers searching online for products, frequently (if not always) consult intermediaries. Direct recourse to suppliers is possible when suppliers have physical presence (known establishments) or when consumers were told about the supplier's existence specifically. In any case, the availability of all supply sources or their price/quality comparisons is information only available by intermediaries, without consumers having the ability to find this information on their own. [90]

Undoubtedly, given the internet's structure, in the intermediaries' absence, the demand and supply sides have difficulties in meeting since information about the market is unavailable as a public good. [91] There is no common area (geographically) where these sides can meet, while it is difficult to explore the internet without using intermediation services. Within the internet this information deficiency can be attributed to the absence of the geo-psychological connection generated by the commercial interaction between suppliers-consumers inside a relevant geographical area (the market). Also, the internet's private architecture can be the 'source' for this information gap, since a common ground ('terrain' or 'arena') for generating commercial activities is absent, probably due to multiple sources 'generating' the internet.

Accordingly, these intermediary agents assume the complex task of acting as 'quasi-markets', making a common meeting point for the supply/demand sides, since the market's environment cannot offer such mutual space. This is the core issue behind the alleged abusive of dominance conduct on the part of Google. The popular search engine assumes such a status (quasi-market) by reason of being the main reference point for the collection of information and its dissemination to most internet users/consumers.

The above analysis on the basic elements of the Google investigation (information and intermediation) demonstrates the value of information in the modern internet-based environment. It also explains the significance of intermediation to both consumers and competitors in being able to access and compete in the internet-marketplace. Thus, taking into consideration the above analysis and the previous discussion on the DSM initiative and the Google investigation, the following part turns to the argument that European competition policy is undergoing an 'update' process. This process relates to the treatment of the internet-marketplace and the DSM initiative. It is centred on the elements of access to and availability of information, pursuing the notion of neutrality for online markets and online content. These elements are encompassed in the net neutrality principle, which appears to be gradually incorporated into competition policy for the internet-marketplace.

5. Protecting access, availability (neutrality), and freedom of information as a new competition policy aim(?)

As portrayed in the DSM initiative, the modern market economy concept is radically influenced by the internet and its endless informative capabilities. The Commission openly pursues this development in attempting to 'upgrade' into the DSM. This 'upgrade' aims to elevate European society into 'information society' in which 'information technology' will be widely used for fulfilling welfare objectives. [92] The wider transformation of the EU's social and economic standards is an 'umbrella' policy target. To this, competition policy supports a significant part. It is required to actively engage with online markets and address problems arising out of content use (information) and the conditions arising out of this content's treatment and control by dominant entities. This is the case, especially given the strong network effects (and eventually of market 'tipping') that can be found in 'new economy' industries. [93] It appears that the Commission's involvement in Google specifically focused on and addresses both issues.

Within such a transformative economy triggered by increased technological abilities, the issue of access to and availability of information (essentially a neutral treatment of information availability) appears a prominent target for the Commission. The apparent logic behind the importance given on these issues is that either the restriction of access and availability or its effective manipulation by entities in effectual control of it, could produce chain and wider negative effects. [94] In the context of the intermediaries' operation, the information asymmetry (between supply/demand) which they are purported to tackle (through search results' specialisation and relevancy) cannot become a justification for restricting/manipulating the actual information availability.

In producing such a controllable and subjective spectrum/palette of information, they are actively/knowingly restricting competition. In doing so, competing undertakings could be deprived of their actual ability/freedom to compete. Importantly, newcomers are prevented from investments/entry and consumers are essentially provided with subjective options. These will be the result of restrictive practices (not of intellectual/editorial bias which is desirable to the extent that it assists the dominant intermediary's successful operation, ie better/targeted results according to consumers' search), [95] no matter the consumers' actual intent of searching, [96] or possible benefit. [97] On balance, this could negatively affect competition in the internet-marketplace and undermine this space's evolution as a more competitive and innovative market, as envisaged in the Communication and re-instated in Google.

This balance and concerns are clearly seen in the Google investigation and intervention. The Commission's concern may be that manipulative actions at the intermediate level related to information availability/display etc, (although, somehow of a 'weak nature' as potential competition law infringements) will unavoidably evolve further in volume and/or magnitude. They can subsequently extend to other markets. [98] In this sense, such a potential negative development can significantly affect the entire market and economic and social nexus. [99] Undoubtedly, in such case the DSM initiative will be irreversibly undermined as a European policy initiative and an evolutionary project. This is the case -and according to the Commission in Google- since such abusive practices: a) reduce competitors' incentives to innovate; b) reduce competitors' incentives to invest; c) reduce choice in online content and reduce the competitors' access to consumers; d) discourage and stifle innovation and other innovative campaigns.

Consequently, a market environment featuring the above characteristics cannot support the plan of promoting more and innovative SMEs (of EU orientation) in the internet/IT area, at least not to the extend imaginable/described in the Communication. This may be a rational concern, since intermediaries are multi-sided market agents, producing effects to all parties requiring access to their virtual commercial 'terrain' in order to operate, evolve, and innovate.

Relevant to the targets which aim at enhancing conditions of competition in the internet (and in overall), the protection of access to and availability of information generates competitive advantages. This is especially by strengthening existing competition and by providing the necessary commercial space allowing new market entries and fierce innovation. Such positive outcomes are triggered by information availability to consumers, thereby strengthening the competitive advantages the internet offers. [100] The internet is the only medium offering competitive markets and unlimited information access. However, the control of information can be highly concentrated (Google has about 90 per cent market share in most EU countries), [101] something that appears to trigger the incentive to prevent market foreclosure in the first place.

Consequently, emphasis appears to be placed by policy enforcers upon the intermediate market level (and on behaviour originating at that level) targeting the restriction to information access or to any manipulation of information availability. The latter, would refer to the non-neutral treatment of such virtual commercial 'terrain'. Such conduct could be deemed as constituting a practice restricting competition in the internet, by precluding consumers from having a neutral and more competitive internet-marketplace as portrayed in the Communication.

It is however to be noted that this process of incorporating in competition analysis and enforcement such notions and targets is not an easy task. Arguably, this is the case since such issues (in such a technologically-oriented market) did not form the basis of any competition law scrutiny. This is evident in the careful wording the Commission used when objecting to Google's practices. In fact there is no actual definition of access to and restriction of information (according to competition policy objectives). Hence, how should access to and availability of information be conceived as a competition aim and its restriction as a detriment, thus categorised as an anticompetitive practice? For example, if a perfectly competitive market status was achieved, demonstrating that information restriction formulates an anticompetitive offence would be less problematic, since if this condition is unfulfilled, then that market status is unattainable. Nevertheless, as noted previously, the need was never felt to protect information in general. This was available and empirically 'claimed' by consumers/competitors through physically interacting inside geographical markets/boundaries. But the situation is admittedly different in the 'online world', especially since information control mechanisms are private, [102] and concentrated.

Hence in Google, in addressing this issue, the Commission emphatically states that its purpose is not protecting competitors. Instead, it is the preservation of the competitive process for the consumers' benefit. To achieve this it has to intervene 'only when there is harm to competition with negative effects on consumers, in particular in terms of reduced choice and innovation.' [103] In the Google investigation context, the protection of the competitive process directly aims (and has as its main underpinning rationale) the actual protection of information and its availability. As aforementioned, this refers to information both as a product (the abovementioned users' original content; actual information included in competing specialised websites) and as an overall market condition (the availability for and about the market -more competitors displayed in the search results).

5.1 Using the net neutrality concept in online markets

From practices like those condemned in Google (the downgrading/downlisting), it can be seen that the manipulation of information could affect th6e entire availability of information in the market, subsequently producing problems to competition. Competition policy was previously unconcerned with the potential for such a wide choice limitation. It nevertheless appears to 'update' its understanding and engagement in this area in order to address the challenges presented by the intermediaries' actions. From the issues raised in Google, it is nowadays apparent that information is a crucial market element that can be manipulated in an anticompetitive manner. This is especially in relation to the internet-marketplace. Being so, it deserves protection by applying the relevant competition rules upon conduct affecting any/all of the abovementioned elements such as: the availability (or else neutrality); completeness and objectivity; value; quality; and obviously the necessary access to information. These are all elements and concepts that arguably emerge in Google and are elevated into the core of the Commission's argumentation in its findings.

Indeed, this consideration is not totally unknown to competition policy. The same underpinning considerations (issues of access/foreclosure, service devaluation, discriminatory practices by dominant players) in relation to information are examined in the telecommunications area through the principal application of the 'net neutrality' principle. As aforementioned, in contrast to online-marketplaces examined here, this principle's application focuses on networks (infrastructural level). However, the actions by internet intermediaries with such ubiquitous positioning clearly resemble the concerns arising over access to infrastructural networks. They also resemble the negative treatment competitors may receive. As such, they trigger the application of competition law for maintaining competition at a post-access level. [104]

Moreover, the convergence over the issue of freedom to information as a prerequisite for the effective operation of competitors under a neutral ground, is now also evident in competition policy following Google. This actually demonstrates a convergence of policy interests focusing on the uninterrupted and uninfluenced use of information. This is both at an infrastructural level (through the 'net neutrality' principle) and at the actual market level enforced through competition policy -the neutral treatment of information being a key element to the DSM. Besides, as stated in the Communication, a competition policy priority (which immediately follows the tackling of abusive behaviour in online-marketplaces) is the reinforcement of the 'net neutrality' principle. [105] In fact, this is not mere semantics. The establishment of competitive market conditions in a massive, virtual, commercial space is correlated to the availability (and neutrality) of the privately-held 'entry points' (at the intermediate market level).

Consequently, it also correlates to the neutral treatment of information availability and diffusion by intermediaries as a vital element for internet-based competition. This interrelationship and merging of principles, concepts, and priorities is evident following Google. Hence, the extension on this principle's application from one industry (of narrower application -telecommunications) to the internet-marketplace's entire spectrum, especially given that identical concerns are raised therein, can support the Commission's policy aims to 'update' competition policy in order to tackle the challenges presented in this virtual environment. As abovementioned, this 'update' process is performed through the inclusion of the net neutrality principle and the pursuit of this notion of neutrality for online markets and for the online content included therein.

Following on, it is worth reminding that the provisions applicable in the telecommunications sector relevant to market access (neutrality of commercial platforms/spaces) derive from competition principles, thereby also targeting towards the promotion of free and undistorted competition. Thus, the overall spirit deduced out of these principles, aims at promoting the same objective, namely, the provision of a free and undistorted space for competition to take place and innovation to flourish. In turn, this provides the ability to achieve consumer welfare objectives. Indeed, the Commission states thatnet neutrality and the problems it is required to address in the 'telecoms' market is correlated to the degree of competition in that market. [106]

As quoted above, according to the Commission, the essence of net neutrality concerns the preservation of the internet's open character, ensuring the undisturbed flow and quality of services offered. These are also crucial elements of freedom of expression and freedom to conduct businesses, thereby affecting fundamental rights. [107] Given their position and the virtual environment's non-territorial characteristics, these intermediaries' operation provides with essential links between consumers/producers, generating a virtual space allowing them to meet. Practically, it provides a virtual market for providing information to the wider internet-marketplace which must remain neutral and open. The tools (system architecture, algorithms etc) ensuring access to this space must also operate under clear and transparent rules/conditions. [108] This is in order to allow competitors/consumers to become fully (the best achievable level) informed thereby supporting and strengthening competition. [109] Likewise, this consideration over the transparent use of tools to achieve wider and effective market access for competitors, thereby strengthening conditions of competition, is a key concept promoted by net neutrality. [110]

In overall, conditions and rights promoted and actively pursued in the field of telecommunications through the net neutrality principle, ensure that competition is undistorted. They also ensure that consumers are rightly informed on these conditions. Similarly, the service offered by intermediaries in online-marketplaces allows more (and smaller) market players to reach consumers. This is achieved through generating the operational and promotional space necessary to 'break-in'. As such, competition policy for internet-marketplaces, as developed (in the Communication) and applied (in Google), appears to introduce such neutral character.

6. Concluding remarks

The Communication on the DSM sets a landmark policy initiative aiming at rejuvenating the EU economy through using internet technology. Competition policy's role is vital in this process. The proper functioning of the internet-marketplace is of fundamental importance in achieving the commercial, economic, and social objectives the Communication sets. Such proper functioning appears to have a special meaning in the online world which is mostly privately construed and operated. Competition policy has to deal with fundamental concepts on the structure, operation, and conditions of competition in such markets. It has to particularly focus on the issue (and treatment) of information and the information intermediaries' role in shaping this market through information collection and diffusion. Additional issues relate to these intermediaries' control of actual 'entry points' used by consumers and the significant influence of conditions of competition with their actions.

As evident following the Google investigation and the Commission's findings, issues such as the manipulation of information availability and its subsequent problematic diffusion in the market acquires major importance to competition policy. This is so since such practices may likely produce negative effects to the process of competition. As analysed, this approach and rationale are based on the consumers' and competitors' necessity to rely on such intermediary agents (since the geographic element in these markets' formation is absent) in order to effectively participate in internet-marketplaces. The investigation on Google's practices and the Commission's conclusions, coincide with the competition policy priorities set by the Communication. They also raise the necessity for these marketplaces' neutral treatment as a fundamental precondition for any successful attempt to enhance conditions of competition and spur innovation.

The inclusion of targets such as the neutral treatment of virtual spaces (as key 'entry points') and the protection of information availability as a competition policy aim can be arguably seen as an 'update' for competition policy. This 'update' is related to the Commission's attempt to determine its 'role' and priorities within the internet-marketplace and in encompassing in its analysis the complicated conditions found therein. For this attempt, principles like the 'net neutrality', which are used in other technologically oriented markets but with a similar underpinning objective, appear to be gradually -yet effectively- 'injected' in the relevant analysis to support competition policy. The purpose is obviously to assist in producing the outcomes pursued by the Communication towards accomplishing the aforesaid pan-European economic and social regeneration on the basis of information technology.



[1] Ballas, Pelecanos & LL.B (LMU), LL.M, Ph.D. (QMUL); Junior Associate at Ballas, Pelecanos & Associates LPC, Athens, Greece. Views expressed are strictly and solely those of the author. In certain parts, the article draws from parts of an unpublished Ph.D. thesis submitted at Queen Mary, University of London. The author can be contacted at: andre.themelis@gmail.com.

[2] COM(2011)942, A Coherent Framework For Building Trust in the Digital Single Market for E-commerce and Online Services (11/1/2012) hereinafter 'Communication', at: http://ec.europa.eu/internal_market/e-commerce/docs/communication2012/COM2011_942_en.pdf"

[3] 'Communication', pp.1-2.

[4] 'Communication', p.1; The convergence of traditional economic activity with technological developments (Internet) would lead to ' virtuous circles of competition and innovation'.

[5] 'Communication', p.6: '[the Commission] will make sure that businesses do not abuse their dominant position in the digital environment and that net neutrality is preserved. Special emphasis will be laid on allowing end users to access and disseminate information and to use applications and services of their choice. ' citing further COM(2011)222, The Open Internet and Net Neutrality in Europe (19/04/2011) which concludes that in relation to competition law, the Commission examines issues relating to net neutrality and particularly issues of discrimination by dominant players (p.9).

[6] Hence, the discussion is unrelated to infrastructural/telecommunications/traffic-management concerns (block access/degrade services) with which the concept of network neutrality (the 'net neutrality debate') was originally associated/concerned with; see above COM(2011)222:3.

[7] 'Communication', p.1:

'Electronic commerce and online services...are now at the heart of the lives of consumers, businesses…and citizens...The way they compare, purchase and sell goods and services,…search for information or make it available...manage their payments or their data…learn and train…interact, exchange and share is not the same as it was five, let alone ten or twenty, years ago '.

[8] 'Communication', p.3.

[9] 'Communication', p.4.

[10] 'Communication'; references to the 'isolated', 'remotest', 'outermost' and 'rural' areas to be benefited are made in pp.3, 4, 12, and 15.

[11] 'Communication', p.2; The objective is to double (by 2015) online sales and the share of the Internet economy's contribution for EU GDP.

[12] 'Communication', p.4.

[13] The Digital Agenda for Europe is among the seven flagship initiatives of the Europe 2020 Strategy, see COM(2010)245, A Digital Agenda for Europe (19/05/2010) p.3; The Europe 2020 Strategy plan sets the priorities of 'smart growth', 'sustainable growth' and ' inclusive growth'. The first priority sets to develop an economy based on knowledge/innovation for the attainment of which the aforesaid flagship initiative was adopted, COM(2010)2020, Europe 2020: A Strategy for Smart, Sustainable and Inclusive Growth (03/03/2010).

[14] 'Communication', p.6.

[15] 'Communication', according to the responses given by SMEs over the period of consultation.

[16] 'Communication', the Commission only cites COM(2011)222 in relation to the 'net neutrality' principle.

[17] Cases COMP/39740 Foundem/Google; COMP/39775 Ejustice/Google; and COMP/39768 Ciao/Google; also, IP/10/1624 'Commission probes allegations of antitrust violations by Google' (30/11/2010).

[18] SPEECH/12/372, Statement of VP Almunia on the Google antitrust investigations (21/05/2012)

[19] SPEECH/12/372

[20] IP/13/371 Antitrust: Commission seeks feedback on commitments offered by Google to address competition concerns (25/04/2013)

[21] MEMO/13/383 Commission seeks feedback on commitments offered by Google to address competition concerns - questions and answers (25/04/2013)

[22] Also above SPEECH/12/372: ' We are concerned that this may result in preferential treatment compared to those of competing services, which may be hurt as a consequence. '

[23] SPEECH/12/372, ' We are worried that this could reduce competitors' incentives to invest in the creation of original content for the benefit of Internet users. This practice may impact for instance travel sites or sites providing restaurant guides. '

[24] SPEECH/12/372, ' This potentially impacts advertising services purchased for example by online stores, online magazines or broadcasters.'

[25] SPEECH/12/372, ' We are concerned that Google imposes contractual restrictions on software developers which prevent them from offering tools that allow the seamless transfer of search advertising campaigns across AdWords and other platforms for search advertising. '

[26] IP/13/371

[27] Foundem 's Report, at < http://www.foundem.co.uk/Foundem_Analysis_Google_Proposals.pdf>

[28] Foundem 's Report

[29] See <http://www.opa-europe.org/news/press-releases/430> for the joint position paper.

[30] Foundem 's Report, p.9; The Press Publishers, in endorsing the arguments by Foundem and others (see <http://www.searchneutrality.org/google/open-letter-to-almunia>) also argue that Google should: ' equal search and display criteria for all websites, including Google's own services…No use of content from press publishers (newspapers and magazine publishers) beyond what is truly indispensable for navigation purposes in the horizontal search without prior consent; An option to mark information on a webpage in a machine-readable way in order to express permissions and restrictions for use of that respective content; No direct or indirect punishment of websites that restrict the use of their content; No preferential treatment of news aggregators towards online press portals. '; for the BEUC see <http://docshare.beuc.org/docs/2/JKOBAPACIHIGGBPPNOIOBEEMPDW69DBYWY9DW3571KM/BEUC/docs/DLS/2013-00211-01-E.pdf>.

[31] eg <http://www.bloomberg.com/news/2013-05-28/almunia-says-almost-certain-google-must-improve-settlement-offer.html>; further <http://www.reuters.com/article/2013/05/28/eu-google-idUSB5N0DH00620130528>

[32] eg <http://www.reuters.com/article/2013/07/17/us-eu-google-idUSBRE96G0FK20130717>; and further <http://www.theguardian.com/technology/2013/jul/17/google-ec-search-antitrust?cmp=wp-plugin>

[33] SPEECH/13/768, The Google antitrust case: what is at stake? (1/10/2013)

[34] SPEECH/13/768

[35] SPEECH/13/768

[36] SPEECH/12/372

[37] SPEECH/12/372

[38] SPEECH/12/372 (Article 9 of Council Regulation (EC) No.1/2003)

[39] See G. Monti 'Article 82 and New Economy Markets' C. Graham & F. Smith (eds.) Competition, Regulation and the New Economy (Hurt Publishing, Oxford, 2004):18-22; also M. Monti SPEECH/00/315 Conference 'Barriers in Cyberspace' (18/09/2000). This approach was re-affirmed by DG for Competition, Italianer 'Prepared Remarks on: Level-playing field and innovation in technology markets' (28/01/2013) Conference on Antitrust in Technology, Palo Alto, US, pp.3-4.

[40] SPEECH/12/372; Article 9 of Reg.1/2003 was used in recent 'new economy' cases eg IBM (2011) and EON (2008 and 2010).

[41] Business secrets related to Google's system (search engine architecture; filters; algorithms etc).

[42] eg, for an earlier discussion, see I. Lianos & E. Motchenkova 'Market Dominance and Quality of Search Results in the Search Engine Market' (2012) TILEC Discussion Paper, p.15

[43] MEMO/13/38, ' using this possibility may be particularly useful to swiftly restore competitive conditions on a market, for example in fast-moving markets in the IT sector. In particular, the Commission has accepted commitments by Microsoft (see IP/09/1941), Apple (see IP/12/1367) and IBM (see IP/11/1539) and turned them into legally binding obligations '.

[44] The general principle emerging from Article 8(4)(g) of the Directive 2002/21/EC on a common regulatory framework for electronic communications networks and services (7/3/2002), as amended by Directive 2009/140/EC (18/12/2009) OJ L337; also Wu T. stating that:

'Network neutrality is best defined as a network design principle. The idea is that a maximally useful public information network aspires to treat all content, sites, and platforms equally. This allows the network to carry every form of information and support every kind of application .' at: <http://timwu.org/network_neutrality.html>

[45] COM(2011)222:3

[46] Case 322/81 Michelin v. Commission [1983] ECR 3461

[47] MEMO/13/383 ' the Commission is concerned that the way in which Google currently presents its web search results limits the ability of European users to find their way to specialised search services competing with Google which contain information relevant to their query '; For a technical and consumer behaviour analysis on the logic underpinning the exclusionary aspect of the downgrading practice, see G. Hotchkiss 'Why Results Quality Is So Important to Search Engines' (2011) at: <http://searchengineland.com/why-results-quality-is-so-important-to-search-engines-77957>.

[48] On refusal to supply, access to indispensable information necessary to compete on an equal footing, see paras.337-436 and paras.421-22 of Case T-201/04 Microsoft v Commission [2007] ECR II-3601.

[49] MEMO/13/383, Google's preferential treatment and downgrading practices ' reduces the ability of consumers to find a potentially more relevant choice of specialised search services. Since Google is an important source of traffic for competing specialised search services, this may reduce competitors' incentives to innovate in specialised search .'

[50] Foundem 's Report, p.1: ' as the gateway to the Internet, Google plays a decisive role in determining what the vast majority of us discover, read, use, and purchase online '.

[51] MEMO/13/383, in relation to specialised search: ' due to the favourable treatment of Google's own services, consumers are more likely to not make use of potentially more relevant competing services…It therefore reduces the ability of consumers to find a potentially more relevant choice of specialised search services '. Moreover, in relation to content usage: ' The Commission is concerned that the practice of using third party content to promote Google's own services may reduce competitors' incentives to invest in the creation of original content for the benefit of internet users '. Furthermore, in relation to the contractual restrictions: ' The Commission is concerned that these restrictions create artificial switching costs that discourage advertisers using Google's AdWords from running parallel online search advertising campaigns on competing platforms, thereby reducing consumer choice. These restrictions do not yield any benefits for advertisers or consumers, but stifle the development of innovative campaign management tools '.

[52] This is the classic theoretical evaluation that information is a prerequisite to accomplishing more competitive market conditions, hence the informed consumer strengthens his position vis-à-vis suppliers.

[53] P. Evans & T.S. Wurster, Blown to Bits: How the New Economics of Information Transform Strategy (Harvard Business Press, US, 1999):Chapter 3.

[54] For a definition of intermediary, see T.F. Cotter 'Some Observations on the Law and Economics of Intermediaries' (2006) Mich.St.L.Rev.67:68-71, ' an 'intermediary' can be any entity that enables the communication of information from one party to another.'

[55] Market aggregation presents information (mass marketing) to wider consumer audiences (undifferentiated marketing without specialisation).

[56] If selection parameters are preset, they can also undertake market segmentation (presenting specified/selective information).

[57] Price/quality comparison websites are two-sided markets.

[58] S.Y. Choi, D.O. Stahl & A.B. Whinston, The Economics of Electronic Commerce (MacMillan, NY, 1997); also Spulber 'Market Microstructure and Intermediation' (1996) 10 J.Econ.Perspect.135.

[59] S. Grundmann, W. Kerber & S. Weatherill (eds) Party Autonomy and the Role of Information in the Internal Market (Walter De Gruyter, Berlin, 2001):27-28.

[60] On collusion and artificial market transparency, see Case 48/69 Imperial Chemical Industries Ltd v Commission (Dyestuffs) [1972] ECR 619. The volume, frequency and quality of information exchanged are crucial factors in evaluating these agents' role in alleged anticompetitive practices.

[61] In economics, a 'public good' is non-rivalrous (its consumption will not affect its availability to others) and is available without exclusions (everyone can use/consume/perform further actions with it), P.A. Samuelson 'The Pure Theory of Public Expenditure'(1954) 36(4) Rev.Econ.&Stat.387; a 'private good' features the opposite characteristics, and has attributes which exclude class(es) of consumers (eg price) and satisfy an individual's consumption while depriving it from another, H.R. Varian, Microeconomic Analysis (WW Norton, NY, 1992); cf. from a political science perspective, J. Malkin & A. Widalvsky, 'Why the Traditional Distinction Between Public and Private Goods Should Be Abandoned' (1991) 3(4) J.Theor.Pol.355, arguing that social trends alter the boundaries between public/private.

[62] Information is the key element in competition theory for efficient resource allocation. Positive developments (reduced prices) can only substantiate through enhancing information availability to the demand/supply sides, C. Coteanu, Cyber Consumer Law and Unfair Trading Practices (Ashgate, UK, 2005):Chapter 2; Other roles for information exist, eg information as a commodity, U. Birchler & M. Bütler, Information Economics (Rutledge, US & Canada, 2007).

[63] Dyestuffs case, above.

[64] Particular 'know-how'; computer software code etc.

[65] Case C-241-242/91P Radio Telefis Eireann v. Commission ('Magill') [1995] ECR I-743, and Case C-418/01 IMS Health GmbH & Co. OHG v. NDC Health GmbH & Co. KG [2004] ECR I-5039.

[66] It does not refer to prefect/complete information as in the perfect competition model in economic theory.

[67] Market prices rising/reducing.

[68] Stock exchange information; market reports etc.

[69] How, when, and if a commodity becomes available is an information type with particular value.

[70] Referring to the significance of information as a pre-condition in reaching competitive market conditions.

[71] Price exchange information used to facilitate collusion for market-sharing or limiting production.

[72] eg, whether a product exists; its suppliers etc.

[73] Therefore not concerned with information as a market state, eg collusion through information exchange.

[74] A market is ' a social arena where sellers and buyers meet…a market depends on the buyers continuing to "show up" in a particular social space to purchase the product. ' N. Fligstein, The Architecture of Markets (Princeton University Press, US, 2001):31.

[75] Another crucial element is time. Physical markets require time expenditure to evaluate supply alternatives. Thus, it is an evolving and timely process depending on numerous factors, eg education.

[76] Fligstein, '[markets] exist for the production and sale of some good or service,...characterized by structured exchange.' p.30.

[77] On market interaction and information availability, the proposition is that consumers ' are able to search for information…relevant for their intended transactions…a rational consumer compares the benefits and costs of information by deciding about the amount of demanded information ', T. Wein 'Consumer Information Problems-Causes and Consequences' in Grundmann, Kerber & Weatherill, above, p.81; Consumers make an investment when assessing information in order to interact with suppliers, G.J. Stigler 'The Economics of Information' (1961) 64 J.Pol.Econ.213.

[78] eg, based on the technical aspects of Internet transactions, ISPs may opt to refuse access to end users to potential supply sources from abroad. The internet's architecture can therefore be used to restrict supply information, thus affecting competition.

[79] D. Lucking-Riley & D.F. Spulber 'Business-to-Business Electronic Commerce' (2001) 15 J.Econ.Perspect.55:57 comment on the necessity of using intermediaries for this connection.

[80] Foundem 's Report, p.1.

[81] This necessity results from the abundance and overflow of online information, N. Economides 'The Impact of the Internet on Financial Markets' (2001) 1(1) J.Fin.Trans.8:12.

[82] Hence, not merely concerned with information on a private level, ie information as a private good (product's price/quality).

[83] Specialist agents, eg house sales/renting/related services.

[84] They deal with direct/indirect information sale to market participants, Grundmann & Kerber 'Information Intermediaries and Party Autonomy-The Example of Securities and Insurance Markets', in Grundmann, Kerber & Weatherill, (above), pp.267-269; Rose, The Economics, Concept, and Design of Information Intermediaries: a Theoretic Approach to Information Intermediaries (Physica-Verlag, NY, 2001).

[85] Also O. Bracha & F. Pasquale 'Federal Search Commission: Fairness, Access, and Accountability in the Law of Search' (2008) 93 Cornell L.Rev.1193, referring to search engines as infrastructural foundations of the information economy, more important than what encompassed by the antitrust term 'essential facility'.

[86] Stigler; also Coteanu (Chapter 4), on electronic agents and intermediaries, especially part on 'Asymmetry of Information'.

[87] Search engines have a 'crucial 'gateway' role' and are 'an essential first-point-of-call for anyone venturing onto the Internet', R. Pollock 'Is Google the Next Microsoft? Competition, Welfare and Regulation in Internet Search'(2010) 9(4) Review of Network Economics, Berkeley Electronic Press.

[88] Up to an extent this first-Internet-getaway status is also results from technical configurations/marketing promotion, eg popular internet browsers (Chrome, Mozilla Firefox, Internet Explorer) are technically synchronised to 'open up' to webpages featuring intermediation services.

[89] Generally, N. Economides & J. Tåg 'Net Neutrality on the Internet: A Two-Sided Market Analysis' NET Inst., Working Paper No.07-45, N.Y.Univ.Law&Econ., Research Paper No.07-40 (2007); C. Veljanovski 'Network Effects and Two-Sided Markets' (2007), at SSRN: <http://ssrn.com/abstract=1003447>; D. Evans 'Two-Sided Market Definition' ABA Section of Antitrust Law, Market Definition in Antitrust: Theory and Case Studies (2009), at SSRN: <http://ssrn.com/abstract=1396751>. See recently, A.D. Vanberg 'From Archie to Google - Search Engine Providers and Emergent Challenges in Relation to EU Competition Law' (2012) 3(1) EJLT, and F. Thepot "Market Power in Online Search and Social Networking: A Matter of Two-Sided Markets" (2013) 36(2) World.Comp. 195.

[90] This demonstrates the necessity for intermediaries to control information overflow, N. Elkin-Koren & E.M. Salzberger, Economics and Cyberspace (Edward Elgar, UK, 2004):71. Arguably, intermediation is unnecessary when URLs of eponymous producers are known (brand names and generic top-level domains (gTLD), eg <www.nike.com>). Intermediaries may still be used to link to websites or being the only price comparison sources.

[91] Unavailable collectively within society in a specific geographical area.

[92] As evident from the 'Communication', the internet assists to achieve enhanced efficiency (allocative/productive) by increasing choice.

[93] MEMO/13/383, ' In high-tech markets in particular, network effects may lead to entrenched market positions. Google has had a strong position in web search in most European countries for a number of years now. It does not seem likely that another web search service will replace it as European users' web search service of choice…There are also significant barriers to entry and network effects in both markets [web search and search advertising]'.

[94] MEMO/13/383, ' it is important for the Commission to intervene in order to ensure that Google's prominent market position in web search does not affect the possibility for other competitors to innovate in neighbouring markets, including in the long-term '.

[95] See E. Goldman 'Search Engine Bias and the Demise of Search Engine Utopianism' (2006) 8 Yale J.L.&Tech.188; and E. Goldman 'Revisiting Search Engine Bias' (2011) 38(1) William Mitchell Law Rev.98

[96] MEMO/13/383, as stated by the Commission, 'it is for users to decide whether they wish to visit these [competing] sites based on their merits', still the concern is that Google's practices limit these competing websites visibility.

[97] This approach, as evident in Google, appears to take Manne's and Grimmelmann's argumentation against 'search neutrality' (neutral search engine results) a step beyond (yet, partly agreeing with it), ie although dominant search engines may produce targeted -hence of better relevance and to a degree biased- results that consumers value, and this subjective 'editorial control' is positive to competition (efficiency), still this takes place within a 'palette' of choices artificially compiled, but without any certainty over the dominant's 'pro-competitive' incentives to include competitors, especially in cases when competing vertical services are targeted and effectively excluded, (generally G.A. Manne 'The Problem of Search Engines as Essential Facilities' and J. Grimmelmann 'Some Scepticism About Search Neutrality' in B. Szoka & A. Marcus (eds) The Next Digital Decade: Essays on the Future of the Internet (TechFreedom, Washington DC, 2010)).

[98] Foundem 's Report, p.8: ' vertical search was simply the natural first target for Google. Google can (and will, if it isn't stopped) extend the same abusive practices into other sectors, including ecommerce, auctions, and social networks. Yet, Google's proposals explicitly exclude these sectors '.

[99] MEMO/13/383, ' the Commission's objective is to make sure that competition in the entire market is preserved so that incentives to innovate remain and users can benefit from a real choice between competing alternatives '.

[100] As considered by the Norwegian Competition Authority in its investigation on information intermediation for online advertising of residential property, see the discussion in A. Themelis 'Searching for Competition: a Comment on the Norwegian Residential Property Market Investigation' (2013) 19(2) WJCLI.

[101] MEMO/13/383.

[102] Arguably, this is the main reason behind proposals for the institutional monitoring of search engines, entrusted in detecting biased practices, see F. Pasquale 'Trusting (and Verifying) Online Intermediaries' Policing' 347:354 and 'Dominant Search Engines: An Essential Cultural and Political Facility' 401:415 in Szoka & Marcus, above.

[103] MEMO/13/383

[104] Although there is a distinction between the term 'network neutrality' and (in the context of search engine search) the term ' search neutrality', these concepts can be used in an interchangeable fashion since they refer to the same idea; on this distinction, see Goldman (2011).

[105] 'Communication', p.6, '[the Commission] will make sure that businesses do not abuse their dominant position in the digital environment and that net neutrality is preserved '.

[106] COM(2011)222:4.

[107] COM(2011)222:4. This principle touches upon fundamental rights enshrined in the EU Charter of Fundamental Rights.

[108] Marsden argues that deviations from transparent rules should be clearly mentioned to users, else this 'favouritism' of the dominant's own services is problematic, P. Marsden 'Online Search: 'Antitrust': There is Still a Long Way to Go in Satisfying Antitrust Concerns' (July 2011) Competition Law Insight, p.18; Further views exist on the enforcement and workability of transparency rules, eg Vanberg comments that commitments (eg by search engines) towards such objective treatment may be preferred to interventionist measures which have negative effects by reducing information's quality, above Vanberg p.9.

[109] The use of these tools is central to the potential infringement of competition rules, eg in Google the Commission stated that: ' It appears that the implementation of certain algorithms by Google may lead to both downward and upward movements in the ranking of specialised search services in Google's web search services '. (MEMO/13/383)

[110] Transparency is actively pursued in Articles 20, 21, 22 and 23 of Directive 2002/22/EC on universal service and users' rights relating to electronic communications networks and services (Universal Service Directive) (24/04/2002) OJ L108, amended by Directive 2009/136/EC (18/12/2009) OJ L337; The Commission considers that rules on transparency, switching and quality of service, forming part of the EU Electronic Communications framework, contribute in developing competitive market conditions (above COM(2011)222:8); Although concerning the infrastructural level and ISPs, the BEREC Report is elucidative on the transparency issue and its connection to 'net neutrality', suggesting that such transparency policy may particularly aim at satisfying the accessibility; understandability; meaningfulness; comparability; and accuracy of information, BEREC BOR(11)67 'Guidelines on Transparency on the Scope of Net Neutrality: Best Practices and Recommended Approaches' (2011):13.