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EU document access request raises uncomfortable questions about Google antitrust investigation

ikYfyDhQHruMBy Simon Davies

Earlier today I submitted a comprehensive access request to the EU Competition Commissioner, Joaquín Almunia, seeking detailed information about his investigative procedures and requesting clarification of a number of aspects of the conduct of his current inquiry into Google.

The request, which can also be read by clicking the link in the right-hand margin opposite, raises issues that go to the heart both of the Commission’s integrity and the credibility of the Google investigation.

Joaquín Almunia

Joaquín Almunia

The request seeks to disentangle some unsettling ethical questions about the Commissioner’s intimate personal interactions with Google executives – in contrast to his more distant and formal dealings with complainants, consumer groups and other stakeholders. I have therefore requested all phone logs, correspondence and documents relating to contact between the Commissioner and Google since February.

The request also seeks to explore why the commissioner has apparently contradicted a previously stated position that a monopoly of data would be a competition issue. What is the commissioner’s reasoning for abandoning this prior position when the privacy issues concerning Google are now even more volatile than ever?

The Commissioner has previously noted that this inquiry is virgin territory for his investigators, but has he consulted data protection regulators to determine the extent of their knowledge of Google’s data holdings and operations? Equally as relevant, has he sought their view on the economic power of data and therefore its competitive impact?

Google’s integrity is also tested by the request. It asks whether the commissioner believes that Google’s systematic failure to adhere to demands by European data protection authorities is a bad omen for future shoddy competition compliance. Importantly, does the Commissioner believe he has an obligation to assess the overall integrity of a company with regard to its legal compliance?

The request stems from my October 3rd blog on this site that raised questions about the Commissioner’s handling of privacy issues in the Google inquiry. The article pointed out that the commissioner appears to have ignored crucial data protection and privacy concerns, despite having signalled in public statements that the privacy aspect was relevant to competition considerations.

The request raises issues that go to the heart both of the Commission’s integrity and the credibility of the Google investigation.

The Commissioner has for the past three years inquired into whether Google actively abuses its dominant position to achieve an even greater advantage in the market. The inquiry is focused in part on whether Google has manipulated its dominant position in search and search advertising to exclude potential competition, raise barriers to entry and cement its dominance.

I made the point that Almunia appears to have given a qualified thumbs-up to the advertising giant and that his position raises several important questions both about the competition authority’s processes and the strength of its investigation.

Almunia’s position has all but ignored the crucial value of personal data – and of Google’s disregard for privacy – both of which are central to the company’s dominance. In circumventing these issues Almunia has potentially created a fragile and vacuous competition position destined for a short shelf life.

Like any writer who is respectful of the truth I then wrote to the Commissioner to ensure that I had not made any errors. I suggested that if there were any errors of fact or any misrepresentations that he might consider setting me straight – or perhaps even respond. I also wrote to Almunia’s Cabinet, senior officials, administrative and public relations staff at his office.

Almunia’s position has all but ignored the crucial value of personal data – and of Google’s disregard for privacy

That was more than five weeks ago and since then there has not been so much of an acknowledgment from any of the ten people I reached out to.

This silence indicates that the Commission has a closed culture involving a policy of not responding to the outside world. Conversations with consumer groups and others support this view.

This is a dangerous state of affairs. No public body should be secretive – least of one tasked with such sensitive work – and particularly so where that body is judge, jury and executioner.

The Commission’s Directorate General for Competition does not have a healthy track record on transparency. For example in 2009 the watchdog body Access Info sought the written guidance on access procedures from each DG in the Commission. DG Comp was the only division to refuse disclosure of its guidance.

The Commission has fifteen days in which to respond to the request. In the meantime the Commissioner may wish to consider answering some of the following questions.

 

  1. Why has the commissioner contradicted the position that he set out at the Privacy Platform in Brussels last November? How is it that the previous position that a monopoly of data would be a competition issue has apparently been abandoned? What is the commissioner’s reasoning for abandoning this prior position when the privacy issue concerning Google is now even more volatile?
  2. The commissioner has routinely consulted Google through face-to face meetings. Has the commissioner conducted such meetings with data protection regulators and consumer groups?
  3. What foundation of evidence and what reasoning has the commissioner used as the basis for his assertion that privacy and data protection commissioners are capable of dealing with the data element of Google’s operations?
  4. Has the commissioner conducted inquiries with data protection regulators to determine the extent of their knowledge of Google’s data holdings and operations?
  5. Does the commissioner believe that he has an obligation to assess the general overall integrity of a company with regard to its legal compliance?
  6. Does the commissioner believe that Google’s failure to adhere to demands by European data protection authorities indicates an internal dysfunction that may indicate a problem for competition compliance?
  7. At the level of law and of principle does the commissioner believe that companies that are found to be systematically in breach of EU law – in any aspect – should be allowed to compete on equal terms with companies that are legally compliant?
  8. On what date did Google submit its revised proposal to the Commissioner?
  9. Was the commissioner aware of any details of Google’s revised proposal prior to its submission by the company?
  10. Did the commissioner reveal any aspect of his public position of October 1st to Google’s Eric Schmidt at their meeting the previous week in New York? Why was this meeting considered necessary?
  11. Are minutes or transcripts of meetings with executives of companies under investigation a matter of public record? Were there any witnesses or third parties at the commissioner’s meetings with Eric Schmidt and other Google executives?
  12. Did the commissioner outline the parameters of an “acceptable” revised offer before the date of the submission of that document by Google?
  13. Upon what basis of evidence did the commissioner conclude that the revised Google offering was more acceptable than its original offering?
  14. Does the commissioner believe that having stated his high-level view of the revised offering that respondents to the recent RFI should be provided with the evidential basis for that reasoning in order to develop a fully informed response?
  15. Does the commissioner believe it is acceptable in any circumstance in advance of an RFI, to publicly announce a favourable view on a revised offering?
  16. How much time has the Commissioner spent meeting or talking with Google and how does this compare to the time he has spent meeting or talking with Complainants?
  17. What was the Commissioner’s reasoning for pursuing a settlement under article 9, rather than an Article 7 Infringement decision? To what extent have these reasons stood the test of time?
  18. Was the Commissioner’s May 2012 decision to offer Google an opportunity to settle influenced by the reported request in January 2011 by Google Chairman Eric Schmidt that he do so, or by the reported request in January 2012 by Google Chief Legal Officer David Drummond?
  19. What aspect of Google’s behaviour (for example, as regards its anti-competitive conduct or its dealings with other regulators) led the Commissioner to believe that Google would be likely to enter these negotiations in good faith?
  20. Eighteen months after offering Google a “matter of weeks” to submit proposals capable of addressing the Commission’s competition concerns, does the Commissioner feel that his trust in Google was misplaced?
  21. Does the Commissioner agree that, with hindsight, it would have been better to have issued the Commission’s statement of objections in May last year, rather than pursuing a lengthy and so-far fruitless settlement negotiation?
  22. How many letters has the Commissioner received from Complainants and other interested third parties?  How many of these has he answered?
  23. How many letters or text messages has the Commissioner received from Google?  And how many of these has he answered?
  24. Does the Commissioner agree that he has expressed a strong preference for principle-based and future-proofed, remedies? And does the Commissioner agree with the observation that neither of Google’s proposals possesses either of these qualities?
  25. Did the Commissioner ever instruct the case team to explore remedies based on the Even-Handed (non-discrimination) Principle? If not, why not? If so, when and why were these efforts abandoned?
  26. What specific changes persuaded the Commissioner that Google’s revised proposals are a “substantial improvement” over the previous proposals?
  27. Have any Complainants expressed concern that the Commission may lack the specialist expertise required to negotiate in isolation with Google in this complex market? What action, if any, did the Commission take to address these concerns?
  28. Did the Commission at any point pursue remedies based on the Even-Handed (non-discrimination) Principle? If not, why not? If so, when and why were these efforts abandoned?
  29. Has Google ever made representations to the Commission to suggest that it would be difficult or impossible for Google to crawl, index, and rank its own services in exactly the same way it does everyone else’s? If so, what steps did the Commission take to verify or refute these representations with non-Google-affiliated experts and/or with Complainants?
  30. Has Google ever made representations to the Commission to suggest that its Universal Search mechanism and its vertical search services are somehow inextricably linked? That is, any suggestion that forcing Google to cease its Universal Search mechanism would be tantamount to forcing Google to cease development and provision of its own vertical search services? If so, what steps did the Commission take to verify or refute these representations with non-Google-affiliated experts and/or with Complainants?
  31. Has Google ever made representations to the Commission that it has no incentive to harm its competitors because that would diminish its ad revenues? If so, what steps did the Commission take to verify or refute these representations with non-Google-affiliated experts and/or with Complainants?
  32. Has Google ever made representations to the Commission to suggest that the costs to rivals of its proposed Paid Rival Links would be nominal and/or somewhere in the region of its proposed “maximum reserve price”? If so, what steps did the Commission take to verify or refute these representations with non-Google-affiliated experts and/or with Complainants?
  33. Has Google disclosed the methodology behind its vertical search and other data operations?
  34. To what extent has the commissioner undertaken audit and detailed analysis to verify Google’s claims regarding its data operations?
  35. How would the Commission’s decision to allow Google to continue to commandeer virtually any sector of its choosing and take sole possession of the relevance-based free traffic that has fuelled the digital revolution help consumers? And how does it incentivise or protect innovation?