On the release of the EU's summary of its reasons for allowing Google to acquire DoubleClick, ICOMP committed to reviewing this decision and offering analysis.
Following its six-month long review, the European Commission cleared the merger between Google and DoubleClick on 3 March 2008.
Although the Commission ultimately decided not to challenge the merger, the Decision reveals underlying concerns as to the market power of Google - though without finding that the acquisition of DoubleClick would necessarily increase its opportunities or incentives to exploit that market power.
See below an excerpt from the short review. For more information, visit the resources section of the website, where there is a detailed summary and a short review of the decision.
EXCERPT FROM ICOMP REVIEW:
Conclusions & Outstanding Questions
Notwithstanding the Commission's findings, there remain unresolved issues:
- Although Google has not offered formal undertakings to the Commission, what statements did it make concerning its future intended conduct? It was widely reported that commitments were offered in relation to keeping the two databases separate. What were these and why were they offered?
- As part of its merger review, the Commission should have taken into account the likely deterrent effect of Community competition law in determining the future competitive conduct of the parties. It is unclear from the Commission's decision how this was done and it would be useful to have an indication of where the Commission is likely to focus its continuing attention on Google.
- The Commission stated that its decision was without prejudice to issues related to Google's existing and future level of compliance with data protection rules. However, we have not seen its reasons for excluding the consumer welfare aspects of privacy and data protection from the scope of its review. Again, this will be relevant to any ongoing antitrust scrutiny.
Merger analysis is predictive and is not easy in fast-moving markets such as these. The Commission did not share the views of third parties in relation to the relevant markets and it will be useful to compare its prognosis with events. If it proves that the Commission's analysis has been too static or too prudent in other ways, the Commission - and other antitrust authorities - will need to acknowledge these developments and take the necessary steps to ensure that anti-competitive activities or behaviour are prevented and/or terminated.
ICOMP will be working with its members and other organisations over the coming months to ensure that these issues remain under review and that the competitive environment of the online marketplace is given every opportunity to flourish.
For further comment please contact:
David Wood, ICOMP legal advisor, +32 477 697 266
Jonathan Dinkeldein, ICOMP Secretariat, +44 (0)7917 333795