THE BOTTOM LINE
- Higher Liability Risk: The Amsterdam District Court has ruled that damages from Google’s anti-competitive behavior must be calculated against a hypothetical scenario where its entire illegal conduct is removed, making it harder for Google to limit its financial exposure.
- No “Less Illegal” Alternatives: Companies found guilty of antitrust breaches cannot reduce their damages by arguing they would have chosen a different, “less illegal” but still advantageous, business practice. The baseline for damages is a truly level playing field.
- Green Light for Substantial Claims: This decision significantly strengthens the position of companies seeking damages from Google’s “Shopping” infringement. With a more favorable basis for calculation, claimants are now in a much stronger position to quantify and pursue significant financial losses.
THE DETAILS
This ruling is a critical chapter in the long-running “Google Shopping” saga. It stems from the European Commission’s 2017 decision, now definitively upheld by the EU’s highest court, which found that Google abused its market dominance by systematically favoring its own comparison shopping service in search results while demoting rivals. This Amsterdam case is a “follow-on” damages claim brought by claims vehicle Wolfson Capital on behalf of two Dutch comparison services, Compare and Kieskeurig. With Google’s liability already established, the court’s focus has shifted to a crucial question: exactly how much harm was caused? The answer depends on comparing the actual market situation with a hypothetical “counterfactual” world—one where Google’s infringement never happened.
The core of the dispute was the definition of this “counterfactual” world. Google’s infringement consisted of a two-part strategy: (1) prominently displaying its own shopping service in attractive boxes at the top of search results, while (2) applying ranking algorithms that pushed competing services further down the page as simple blue links. Google argued that for calculating damages, the court should only have to imagine a world where one of these elements was removed, reflecting a “probable” and legal alternative it might have chosen. This approach would have significantly lowered the potential damages. The claimants countered that this was an artificial distinction; the entire anticompetitive scheme, both promoting itself and demoting others, had to be removed to accurately calculate the harm.
The Amsterdam Court sided decisively with the claimants. It ruled that since the infringement was the combination of the two practices, the only valid counterfactual is a scenario where both elements are completely absent. The court explicitly rejected Google’s attempt to substitute a “less harmful” alternative reality. It reasoned that a company that deliberately breaches competition law should not be “helped” by allowing it to argue for the most favorable alternative that might have still been legal. This decision establishes that damages must be calculated based on the complete absence of the illegal conduct, setting a firm and claimant-friendly standard for the next phase of the case: the final quantification of damages.
SOURCE
Source: Rechtbank Amsterdam
