Non-discriminatory access to ‘open’ infrastructure: Google Shopping

Every era has a landmark competition law case. Such cases answer the question of whether and how “old” law applies to issues arising in a “new” context. Google Shopping is a landmark competition case for the digital era. It addresses the issue of a dominant undertaking able to control access to markets. Some “old” jurisprudence, developed for physical infrastructure and for entities that were typically state-owned or state-financed at the time investments were made, illustrates that Article 102 TFEU can be used to facilitate access to markets. How should this jurisprudence apply when the critical infrastructure is privately owned and financed? Is the law sufficient to preserve effective competition in the fast-paced environment of digital markets—or, conversely, is the law too slow and unwieldy to play a useful role? Answering these questions remains a key focus for competition authorities and governments across the globe. On 10 September 2024 the Grand Chamber of the Court of Justice delivered its much-awaited judgment in Google (Shopping) and answers several questions on the extent to which Article 102 TFEU can be used to facilitate access to digital markets.