463

In Google’s submission, instead of taking that information into account, the Commission pointed to a number of superficial differences between the services of merchant platforms and those of comparison shopping services, which have no bearing on their substitutability from the standpoint of user demand, to reach the erroneous conclusion that the former do not exert any competitive pressure on the latter. CCIA observes that, in point 36 of the Commission Notice on the definition of relevant market for the purposes of Community competition law (OJ 1997 C 372, p. 5), the Commission states that differences in the characteristics of services are not in themselves sufficient to exclude demand substitutability since this will depend to a large extent on how customers value different characteristics. Moreover, according to Google, one of the differences referred to in the defence, namely that comparison shopping services competing with Google cannot appear in Shopping Units, unlike merchant platforms, is inaccurate. All they would have to do is include an advertising link that takes users directly to an online purchasing page, which some of them have done. Google cites three examples. Since the product market on which the impugned conduct produced anticompetitive effects was defined as the market for comparison shopping services, the Commission should not only have examined what alternatives internet users had to run online comparisons before making a purchase, which would have enabled it to establish that there were merchant platforms and comparison shopping services, but it should also have explained how Google, which maintained that the competitive threat came from merchant platforms, could have increased, in a sustainable way, the prices for appearing on its results pages without running the risk of losing advertisers to merchant platforms. The additional services offered by such platforms as opposed to comparison shopping services, which were identified by the Commission as distinguishing factors, only increase the competitive pressure exerted by those platforms compared to comparison shopping services. They also explain why merchant platforms are better ranked in Google’s general search results by the Panda algorithm and why traffic to them has improved, while traffic to comparison shopping services has decreased. This is why a number of those comparison shopping services also offer additional services, such as enabling users to proceed directly to purchase. Google itself had begun offering that service, although its main focus was on improving the quality of its responses to internet users’ queries in order to compete with merchant platforms on product searches. Moreover, the fact that merchant platforms and comparison shopping services, such as Amazon and Google, establish vertical relationships, particularly the fact that the latter link to products sold by the former and that the former are the latter’s main customers, as the Commission pointed out in recital 220 of the contested decision, does not alter the Commission’s obligation to examine the substitutability of their services and the evidence submitted to show that they compete with each other. In response to the argument put forward by Twenga in its statement in intervention to the effect that merchant platforms operate downstream of Google and depend largely on traffic from its general results pages, Google observes that the latter claim is not made in the contested decision and challenges both the admissibility and the evidential value of the study concerning France submitted in that respect by Twenga. According to the evidence adduced by Google in support of the application, most of the traffic of merchant platforms is direct traffic, which is at odds with the figure of 46% of traffic from its general results pages submitted by Twenga. In the reply, Google makes clear that merchant platform traffic from comparison shopping services is marginal in relation to their total traffic. Google also submits that, in the defence, the Commission is seeking to reverse the burden of proof by arguing that it is for Google to demonstrate that internet users visit the websites of merchant platforms not only to make purchases but also to run comparative searches with a view to purchasing products, when the onus is actually on the Commission to demonstrate that that is not the case if it intends to exclude those platforms from the relevant market. The material in the file relating to the administrative procedure does not contain the necessary evidence for that purpose. In particular, the finding of a 2014 study showing that internet users perceive merchant platforms to be mainly dedicated to the purchase of products does not reveal the extent to which the comparative search functions of those platforms are used. Google maintained, in particular at the hearing, that the relevant market identified in the contested decision is, as is apparent from recital 191 of that decision, only the market for comparison shopping services to internet users, for whom merchant platforms and comparison shopping services are interchangeable, and not the market for online services to sellers. Moreover, it would be incorrect to suggest that merchant platforms do not work with large sellers while comparison shopping services give priority to those partners. Lastly, the considerations set out in recitals 224 to 226 of the contested decision concerning supply side differences are not relevant, because demand side substitutability for users does exist.