The Chancery Division made preliminary rulings in a case brought by Streetmap against Google Inc, alleging that Google had abused a dominant position in its provision of the Google Maps service.
Streetmap.EU Ltd v Google Inc and other companies
European Union – Rules on competition – Abuse of dominant position – Parties being companies involved in provision of online map services
In 2007, Google launched a system of displaying results to a question, OneBox, in relation to map queries. That had the effect of displaying Google Maps as the first response to a map query.
The claimant company, Streetmap, alleged that the defendant companies had abused a dominant position in general search engines by the prominent and preferential display given to their own related online map product, Google Maps, thereby restricting competition from competing suppliers of online maps in Great Britain. The case proceeded on the basis that the claim lay against the first defendant company, Google.
Streetmap contended that Google had abused its dominant position by the visual display at or near the top of its search engine results page of a clickable image from Google Maps, and no other map, in response to certain geographic queries, and the consequent relegation of a link to Streetmap lower down the page. Accordingly, Google was alleged to be in breach of the Chapter II prohibition under UK competition law under section 18 of the Competition Act 1998 and the equivalent provision of European Union competition law set out in article 102 of the Treaty on the Functioning of the European Union (TFEU).
Streetmap submitted that, among other things, Google had abused its dominant position by: (i) bundling Google Search with Google Maps, thereby depriving users of an undistorted choice of online mapping services, giving Google Maps an unfair advantage over Streetmap and/or producing discriminatory effects; and (ii) by displaying a thumbnail map obtained from Google Maps at or near the top of search results pages whilst displaying results relating to other providers of online mapping services by way of blue links and/or lower down the rankings.
Although Google denied that it was dominant in the market, by a consent order it was directed that the allegations raised by Streetmap of abuse should be tried as a preliminary issue on the assumption that Google held a dominant position as alleged. Consideration was given to the competition between Google and MapQuest, an American online map-providing company, and especially to a set of emails which implied that the adoption of a OneBox system had not had the effect of foreclosing competition from MapQuest.
Secondly, consideration was given to the fact that Streetmap had not had complained about OneBox in 2007, nor had it sought to engage in a discussion with Google as to what could be done to restore a level playing field for competition with Google Maps (see  of the judgment).
The court ruled: for a defendant to infringe the prohibition of abuse of a dominant position, it had to: (i) hold a dominant position in a relevant market; (ii) by its conduct abuse that position; and (iii) be unable to show that such conduct was objectively justified. A dominant firm was able, and should be encouraged, to compete, and successful competition on its part was likely to harm and might ultimately exclude competitors.
Accordingly, for there to be abuse, what had to be established was that there had been anti-competitive foreclosure. Although abuse was an objective concept, intention could be taken into account in determining abuse. If a dominant company had intended by its action to foreclosure competition, that might be very relevant to the assessment, albeit that such a finding was not necessary. Regarding the effect of the abuse, the mere possibility of anti-competitive foreclosure would not suffice. The impugned conduct had to be reasonably likely to harm the competitive structure of the market.
In some cases, it would be difficult in practical terms to reconcile a finding that conduct had had no anti-competitive effect at all with a conclusion that it was nonetheless reasonably likely to have such an effect. Further, it was clear that conduct which might infringe article 102 of the TFEU when it started might no longer constitute an infringement several years later. It did not follow that conduct would constitute an abuse where the effect was on a separate market where the undertaking was not always dominant, if that effect was not serious or appreciable (see , , , , ,  of the judgment).
On the evidence, the introduction of the new-style Maps OneBox in June 2007 had not, in itself, had an appreciable effect in taking custom away from Streetmap. In the light of that, it had not been reasonably likely to give rise to anti-competitive foreclosure. It was significant, first, that the use of a OneBox style had not had the effect of foreclosing competition from MapQuest. While there would be some difference between the nature of usage in the UK and the US, the analogy was significant.
Secondly, it was significant that those running Streetmap, with all their understanding of the British market for online maps, had not very rapidly regarded the new-style Maps OneBox as likely to have an appreciable effect on Streetmap’s ability to compete. The fact that that had been the thinking of those closely involved in the market and, indeed, most at risk, was a strong indication that such an effect had not been reasonably likely (see ,  of the judgment).
On the assumption that Google had held a dominant position, it had not committed an abuse (see  of the judgment).
Bronner (Oscar) GmbH & Co KG v Mediaprint Zeitings-und Zeitschriftenverlag GmbH & Co KG: C-7/97  4 CMLR 112 considered; Microsoft v Commission  EU:T:2007:289 considered; Purple Parking Ltd v Heathrow Airport Ltd  All ER (D) 169 (Apr) considered; Konkurrensverket v TeliaSonera Sverige AB: C-52/09  All ER (EC) 1092 considered; Tomra Systems ASA v European Commission: C-549/10 P  All ER (EC) 691 considered; Intel Corp v European Commission: T-286/09  All ER (D) 116 (Jun) considered.
Mark Hoskins QC and David Bailey (instructed by Preiskel & Co LLP) for Streetmap; Jon Turner QC, John Holmes and Ben Lask (instructed by Bristows LLP) for the defendants.