Reading the judgment of the European Court of Justice in the Google Shopping case made me sad. My main objection to the judgment has nothing to do with the merits of the decision, but rather with the form of the written judgment and the continuing failure of the Court to connect with people in the real world. The judgment is long, boring, and turgid, even by the normal opaque standards of ECJ judgments. After seven years of litigation and appeals (fourteen from the start of the investigation), it represents a lost opportunity to speak clearly to citizens of the European Union and the rest of the world about the value, and values, of competition law.
At a time when all the institutions of the EU (and government as a whole) are under assault, we lost a chance for the people as a whole to learn not only who won, but why, and why it matters. More importantly, we lost the opportunity to hear it in language that thoughtful smart non-lawyers can understand and discuss in the real world.
This critically missed opportunity can only be partially undone by thoughtful expert commentary (like this online symposium). Competition law and policy should be a part of civil discourse, and that discourse must begin with comprehensible and accessible court opinions combining both law and policy in an intelligible manner. I am familiar with the style of ECJ opinions, and do my best to incorporate them into my teaching and writing as a US competition law professor. I tell my students that they derive in style from the traditional judgments of civil law courts that compose a majority of the jurisdictions in the EU. Such judgments play a different role, and are strikingly different than the court opinions that US lawyers usually study.
By their nature, the ECJ judgments are unanimous, anonymous, and follow a predictable pattern. Like all ECJ judgments, Google Shopping begins with a background section on the dispute, followed by a summary of the investigation and decision of the European Commission, a summary of the judgment of the General Court being appealed, a summary of procedural issues, including intervening parties, and then a discussion of the issues on appeal.
For each issue, there is a lengthy summary of the positions of the parties and intervenors, a discussion on whether certain issues on appeal are admissible, and then the decision of the Court on that issue. Then, onto the next issue in the same format. At the very end, there is a summary of the findings of the Court and an allocation of costs among the parties and intervenors. The important legal and policy issues are buried under a mountain of fantastically bad writing. Run the following paragraph through the review function of any word processing program (or AI chatbot) and see what editorial suggestions you might get:
“Second, it is apparent from paragraphs 237, 240, 279 and 284 to 289 of the judgment under appeal that the General Court examined the Commission’s classification of the conduct at issue. Thus, in paragraphs 237 and 240, the General Court, in essence, relying on the decision at issue, upheld the Commission’s assessment that the practices at issue, in the form of positive acts of discrimination in the treatment of results from Google’s comparison shopping service, were an independent form of leveraging abuse from a dominated market, characterised by high barriers to entry, namely the market for general search services. Furthermore, in paragraphs 279 and 284 to 289, the General Court examined the difference in treatment found by the Commission as regards, inter alia, the positioning and display of Product Universals, in order to ascertain whether the Commission was right in finding discrimination.” Paragraph 180.
In the real world, what grade, and comments, you would give such writing, if submitted to you as a professor or law firm partner? After many paragraphs that are even more convoluted, one eventually learns who won, what prior cases support that result, and little else. The Google Shopping Case is actually quite a bit shorter than a number of past decisions. A careful reader learns whether the judgment below comports with the standards for the abuse of a dominant position under Article 102 of the TFEU involving the essential facilities doctrine, unilateral refusals to deal, and various other forms of discrimination by dominant firms discussed in prior cases. A reader also can consult the opinion of the Advocate General for more detailed analysis, but the Google Shopping judgment only cites that opinion briefly in a couple of places. Eventually, mountains of words will be written for specialists about the decision, and its effects in the real world, but by then the attention of most people in the real world will long since have moved on to other matters.
From an outsider’s perspective, what the Court does in competition cases (whether I agree or not with the outcome) is basically law without policy. The vocabulary of the Court conceals more than it reveals, making competition law incomprehensible and unappealing to any audience beyond technocratic specialists. The Court can do better without having to jettison the treaties, statutes, and traditions of the EU and civil law jurisprudence. Imagine a world where a shorter and more analytical judgment in an ECJ case begins:
“Having considered the prior proceedings, and the positions of the parties and intervenors (set forth in Appendix A), the court finds as follows. To assist the public in understanding the important legal issue of this case, a plain language summary of the judgment is available in Appendix B. To better assist the public in understanding the implications of our judgment, we identify where we rely on the key findings of the Advocate General and the reasons when we disrespectfully differ from that opinion throughout the judgment that follows.”
This is a problem that goes far beyond the ECJ. Far too many jurisdictions, and their courts, write in similar difficult styles and miss the chance to connect with the very audiences that can support their mission of providing a more consumer-friendly competitive economy.
If anything, the United States Supreme Court suffers from the opposite problem. Too often, the Supreme Court Justices write multiple fractured opinions in controversial cases that descend into little more than political and policy preferences without law. The recent decisions adopting the so-called “major questions” doctrine in administrative law and the later opinion providing broad immunity from criminal prosecution for “official” acts of a former President amount to law-free fan fiction, adopting fringe ideas from extreme conservative legal movements and causes that have no basis in text, legislative intent, history, or the legal traditions of the United States.
In the antitrust field, this tendency is on display in the 2004 Trinko decision where Justice Scalia provided a debatable analysis of the relationship between antitrust law and regulation (basically the opposite of the Deutsche Telecom case in the EU). He then launched into an unprecedented, and somewhat unhinged, rant in praise of monopoly power and against the usefulness of Section 2 of the Sherman Act, the very statute that the Court is supposed to enforce per the text and wishes of Congress.
Similarly, in the 2007 Leegin decision, the Supreme Court by a 5-4 vote reversed a nearly 100-year-old line of cases holding that resale price maintenance must now be analyzed on a rule of reason basis. In so doing, the majority of the Court relied on some contested scholarly articles with a neo-liberal point of view and a number of hypothetical procompetitive benefits that conceivably result in a resale price maintenance case but failed to discuss whether any of those benefits were present, or even likely, in the case at hand.
The EU Google Shopping Case is an important case that affects hundreds of millions of people. It deserves better than an arid technical text that will be read by few in the real world. Google’s conduct, and its legal consequences, should be debated as part of a broader conversation about the role of competition law and policy in a high-tech economy. That cannot happen unless courts can communicate their decisions to the people in smart accessible language conveying the law and broader policy implications so the real debate can begin.
***
Citation: Spencer Weber Waller, Competition Law Without Policy (and Competition Policy Without Law), Network Law Review, Summer 2024.
