Digital asymmetry. Google’s self-preference assessed by the Court. Polish Ceneo wins over Google. The case concerned favoring one’s own comparison site

Publication date: April 19, 2024

Upon the application of Ceneo, the Polish Regional Court in Warsaw banned the Google search engine from favoring its own price comparison website in search results.

The court’s decision applies to the results displayed to users of the Google search engine in Poland. It was issued as security for Ceneo’s claims to refrain from acts of unfair competition before filing a lawsuit against Google.

Ceneo – a comparison website owned by the Allegro Group, the owner of the e-commerce platform – in its application for granting interim security measure (reference number of the case: XXII GWO 24/24) pointed to four types of Google practices that limit their access to the market. The first is favoring one’s own comparison website (Google Shopping) at the expense of competing services (so-called self-preference), done through the way search results are presented. The second – redirecting traffic to Google Shopping at the expense of Ceneo, and the third – hindering access to the Polish comparison website by deleting search results leading to it.

Moreover, Ceneo indicated that Google displays unauthorized Ceneo advertisements, posted by an entity that is not dependent on this comparison engine. According to Ceneo, the purpose may be to obtain information about the preferences of users looking for offers on Ceneo.

Ceneo has been observing such practices since August 15, 2023. Despite a formal request to end the violations, Google has not abandoned these practices.

The first step in the process was an application for security. The second is a lawsuit against Google filed on March 28, 2024. The ban against big tech is valid for the duration of the second instance proceedings.

The decision of the Polish court is a precedent on a European scale and may encourage comparison websites in other countries to follow in the fight for a fair and competitive digital market.

The judge refrained from preparing a justification for the decision to grant security. It accepted the application in its entirety and shared the arguments presented in support of it.

A position containing an important view on the case, in favour of Ceneo, was presented to the court by the president of the Polish Office of Competition and Consumer Protection  amicus curiae). The President of the Office stated that “Google’s behavior, if confirmed, may lead to distortion of competition by granting a competitive advantage to this company, while not ensuring a level playing field for its competitors, including Ceneo.”

In the opinion of the President of the Office of Competition and Consumer Protection, “placing the Google price comparison website in places that are more quickly visible to search engine users (mainly at the top of the page) potentially stops users at the stage of using this price comparison website.” This could put other price comparison sites at a disadvantage. “Similarly, displaying more visually appealing elements potentially retains users on Google’s price comparison site,” the Polish competition authority said.

The President of the Office noted that at this stage “it is not possible to provide direct evidence confirming the anti-competitive nature of Google’s activities, because only Google has this type of information.”

In his position, the President of the Office of Competition and Consumer Protection describes the imbalance in the position of consumers vis-à-vis Google as “digital asymmetry”, because the platform has the tools and knowledge regarding the digital architecture used. The average consumer trusts the entrepreneur. The consumer has the right to expect that the functionalities the website provides will achieve the intended goals and will not be misleading – this was the position expressed by the President of the Office.

The Office of Competition and Consumer Protection recalled to the court the decision of the European Commission of June 27, 2017. It found that Google, at various times since January 2008, had abused the dominant position of its search engine, reducing the traffic of competitive price comparison websites to the benefit of Google Shopping.

Ceneo’s allegations are actually a repetition of the allegations made against Google by the European Commission in its 2017 decision. However, Ceneo cannot use the EC decision directly – e.g. as a basis for claiming compensation – because it concerns a period earlier than the Polish company’s allegations against Google. However, this decision may serve as substantive foundation in the Ceneo case.

When pursuing its claims, the Polish company may rely on the Act on Combating Unfair Competition (consolidated text: Journal of Laws of 2022, item 1233), and above all, on its Art. 15 – on limiting market access. Indeed, Ceneo refers to Art. 15 in the lawsuit filed against Google on March 28, 2024.

In addition to national regulations, the EU regulation – the Digital Markets Act (DMA) – may play an important role in the matter, as pointed out by the Office of Competition and Consumer Protection. The Office has already notified the European Commission – the body responsible for enforcing the DMA – about possible irregularities. From March 7, 2024, the largest digital platforms, the so-called access gatekeepers – Google (Alphabet) is one of them – cannot combine their basic services – like the Google search engine – with their other services and favor them.