The lawyer who helped get Google fined $270 million in an adtech antitrust probe in France explains why the case matters globally

Damien Geradin

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Google this week agreed to pay the French competition regulator a €220 million ($267 million) fine and said it would change its adtech to settle an antitrust complaint that alleged it abused its dominant position in the online advertising sector.

L’Autorité de la Concurrence, the French antitrust watchdog, found that Google’s Ad Manager ad server, which manages ads for large publishers, unfairly favored its online ad marketplace AdX in online ad auctions, such as by providing it information about competitors’ ad bids. The investigation also found that Google’s AdX offered superior interoperability features to Google Ad Manager than it did to rival ad marketplaces.

Google, which is not appealing the case, said on Monday it would make changes to its adtech, including offering increased access to auction data and improving the interoperability between Ad Manager and third-party ad servers. It will first make those changes in France, the company said it will roll out some of the changes globally. 

Damien Geradin, an antitrust lawyer who filed the original 2019 complaint and represented News Corp. in the case — but said he wasn’t speaking on behalf of the publisher — said the outcome in France is likely to set a precedent for outstanding adtech antitrust suits Google faces in the US and elsewhere in Europe. (French newspaper publisher Le Figaro and Belgium-based Groupe Rossel also joined the initial complaint, though Le Figaro later withdrew.)

In an interview, lightly edited for clarity and length, Geradin said that while the remedies Google offered to settle the case are limited in scope, he predicted that other competition authorities around the globe would take the findings in France on board as they investigate other elements of its ads business — and potentially levy harsher, more structural punishments on the tech giant.

Google didn’t immediately return a request for comment. “While we believe we offer valuable services and compete on the merits, we are committed to working proactively with regulators everywhere to make improvements to our products,” Google said in a blog post announcing its proposed changes following the French case.

This case was brought in France. Why should people outside of France take notice?

This is the first time that a competition authority [has found] that Google abused its dominant position in the  adtech market, which of course is a core market for Google.

The findings are crystal-clear. The language used by the Authority is quite strident and that’s significant in itself because Google does not contest the findings. 

This is a highly [automated] market where you have companies across the globe trading. Obviously the impact will go beyond France.

If you look at the remedies, already Google has said that they would implement them more broadly. Technically it would be very difficult to basically separate France from the rest of the world — it’s highly integrated. If the French Authority found abuse of a dominant position in their investigation then I don’t think Google could say, “Well, it’s all different in Germany, or it’s all different in the US.” It’s exactly the same.

The French authority is the first one to rule on these practices but there are investigations before the European Commission, in the UK, Italy, the lawsuits in the United States. All these authorities will look at the French decision very carefully. They will certainly take this into account in their own investigations. It basically shows the way to the others.

How did the ADLC conclude that a €220 million fine was the right amount?

It’s always based on a variety of factors: the nature of the infringement, the length of the infringement, the turnover concerned.

In a case like this one, the fact that it’s a settlement and that Google offered some remedies probably had an impact on the fine. If the case had gone to the end with an infringement decision, the fine would have probably been twice as high.

Some people in the adtech community have said that the concessions are fairly limited in scope. It only affects what’s known in the industry as the “sell-side” and only focuses on a limited number of mechanisms Google was using. Are they missing the bigger picture?

The concessions are not that significant. They’re certainly less demanding than what they would have been in an infringement decision. That’s probably the reason why Google was willing to make them. It would have been surprising if Google would suddenly modify in a material way the way it goes about the adtech sector.

Very often these remedies look good on paper, but when you look at the details, you realize that very often they might be escape mechanisms. Or sometimes the language is not very clear and therefore gives opportunities to Google to have flexibility as to the way it interprets the remedies. Also, let’s face it, it’s a horribly complicated market.

Sundar PichaiIt’s extremely difficult to monitor these sorts of markets because little tweaks in the algorithm can make a huge difference. That’s been the story of this case.

Google has always claimed they were not discriminating, that they were fair, and that they brought much value to ecosystem. But what they did was to always tweak the system in way that was good for them and bad for others.

I think we would be naive to think that suddenly they found God and they will become totally neutral and restore competition in the market. This is why the other investigations remain very important. 

The US lawsuits are much more likely to make a difference because typically the remedies that might result from these lawsuits could be, for example, of a structural nature requiring some separation.

Do you think this ruling sets a precedent for some of the other cases against Google across Europe and the US and that they could potentially go a lot further? The Texas complaint, for example, also goes into some detail about Google’s ad server business and header bidding — but also covers such a large scope of its business.

Several scenarios may take place. Some authorities may say there’s no point in repeating what the French have done. These infringements are clear. So they may take findings on board but they may indeed require stringent remedies.

A lot of new stuff emerged from the Texas lawsuit. For example, this prima facie anticompetitive agreement between Google and Facebook — the so-called Jedi Blue agreement. There is still a reservoir of practices that have not been fully analyzed by competition authorities. 

The French decision was essentially focused on the sell-side. The reason is that the complainants were publishers. There are also issues on the buy-side. It’s another range of practices that still need to be analyzed to see whether they are anticompetitive or not. If they are, there could be remedies that focus on the buy-side. There’s still plenty to do for other competition authorities.

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