The Google antitrust investigations in the EU have featured heavily in the news this week, with reports that the EU Commission would (then had) 'filed formal charges' in connection with one of the two ongoing investigations. But what does 'file formal charges' mean, and what has actually happened in the investigation?
The EU Commission issued its Statement of Objections (SO) on Tuesday in the search/shopping results investigation. The key concerns in that investigation are Google's results ranking and advertising arrangements.
The SO is a key document that must be issued in proceedings where the Commission intends to find that there has been an infringement of the EU's antitrust laws. It should only be issued once the Commission has completed all of its fact-finding. Its purpose is to inform the parties concerned of the objections raised against them with a view to enabling them to exercise their rights of defence, both in writing and orally at a hearing. Therefore, it is an essential part of the right to be heard and to defend oneself. Google has 10 weeks to respond to the SO.
The SO is not itself a decision which can be legally challenged. Rather it is a preparatory procedural measure that precedes a formal decision. Any arguments about the legality of an SO must therefore be raised in the context of an appeal against the final Commission decision.
As regards content, the Commission must set out its objections in full and it should include all of the facts and documents on which the Commission intends to rely in its final decision. The important matter is not so much the documents themselves, but the conclusions that the Commission draws from them. The SO must also set out the legal assessment of the facts raised against each company and clearly state whether the Commission intends to impose a fine or impose other remedies if the objections are upheld.
Complainants are issued with a non-confidential version of the SO (commercially sensitive material and business secrets are redacted) and they are invited to comment. If other third parties request to be heard and show sufficient interest, the Commission must inform them of the nature and subject matter of the investigation (i.e. provide a summary of the facts and legal assessment in the SO). If you have an interest, we can help you in approaching the Commission.
2. Reselling restrictions
The EU Commission has confirmed that restrictions on distributors and other resellers, including restrictions in online selling, are "high on the agenda" over this next year. If you have any doubts as to what is permitted and what is problematic in the EU, now is the time to check.
It's never you that will be investigated until it is you…