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MEP’s start to militate about the EU Google investigation as the Competition Commission shows its true colours

Slide2By Simon Davies

Members of the European Parliament are starting to become militant about the failure of the EU competition authority to take action over mounting complaints about the activities of Google.

A statement endorsed by MEPs has complained that “despite four years of investigation and three sets of commitment proposals, the Commission has achieved no demonstrable results in addressing the main competition concern in its antitrust case against Google”.

MEPs tend to blame former Competition Commissioner Joaquin Almunia, who spent years pondering three revised offers from Google and left office with the inquiry still unresolved. Now the EU parliament is putting pressure on his successor Margarethe Vestager, to put the Google case to bed and “act decisively on all concerns that have been identified and to find a long-term solution for a balanced, fair and open internet search structure.”

There is no doubt that MEP’s are becoming increasingly irritated by this failure, but they shouldn’t hold their breath for a swift outcome.

There is no doubt that MEP’s are becoming increasingly irritated by this failure, but they shouldn’t hold their breath for a swift outcome. True, the new Commissioner appears to be more willing to step up the pace, but if recent inactivity by the competition authority is any indication, it’s likely to be a case of business as usual for a while yet. Stronger measures may need to be taken.

The Privacy Surgeon’s own experience with the competition authority reveals a litany of dysfunction surrounding the Google case.

Back in 2013 it seemed to me and to many other observers that things were going seriously amiss with this case. A string of bizarre incidents and contradictions prompted us to lodge a request for documents back in November of that year. I wanted to know precisely how the authority had been conducting its investigation.

Later that month the Commission responded, denying access to any of the requested documents.

On December 19th 2013 I filed an appeal to the Secretary General of the Commission, arguing that access to some documents would not prejudice the case and that disclosure was clearly in the public interest. After a protracted delay, the Secretary General responded with a (more or less) cut and paste job from the Commission’s original response, adding some ad hominem stuff into the mix. Access to absolutely everything was denied.

Later that year, in July, and after escalating negative media commentary about the Commission’s handling of the Google case, I submitted another document request. This time – and in view of the arguments given in previous denials – I focused on just two pieces of information. Importantly, I just wanted to know what documents existed so I could argue for particular pieces of information. In other words, I just wanted to know what existed rather than the actual content of documents.

In view of this systemic (and possibly intentional) failure, perhaps MEP’s should widen their scrutiny of the Google case to the bureaucrats. Clearly the dysfunction in this matter permeates the entire competition authority.

Even this basic request was then denied. That left me in complete ignorance not just about the substance of the files, but also the nature of the files themselves. This is about as secret as you can get in any democracy.

Delays compounded on delays and there seemed to be no improvement in the case. So, on October 22nd last year the Privacy Surgeon lodged its own complaint against Google, submitting that the continuing delays were putting sites such as our own at risk.

This is where the rubber hot the road and the true nature of the competition authority started to reveal itself.

There wasn’t even an acknowledgement of the complaint. Three months later, and after some prodding, the competition authority did send an acknowledgment in late January this year which was so bland as to be meaningless. The communication never cited a case number to the complaint, thus putting it in limbo.

By March 2nd there was still no response to my request for clarity, so I sent another communication, this time complaining that the previous missives were “entirely unacceptable” and that the Commission was now in breach of the four-month timeframe set out to engage complaints.

Since then, there has been silence.

In view of this systemic (and possibly intentional) failure, perhaps MEP’s should widen their scrutiny of the Google case to the bureaucrats. Clearly the dysfunction in this matter permeates the entire competition authority.