Form, Effects, or Both? – The More Economic Approach and the European Commission's Decision in Google Search

Proponents of a ‘more economic approach’ (MEA) to EU competition law criticise the case law on abuse of dominance as overly form-based – i.e. as being built on categorizations rather than case-specific assessments of actual competitive effects. While the Commission has largely accepted this criticism, the EU Courts are said to be sceptical about effects-based assessments of Article 102 TFEU cases. This could pose a problem for the Commission’s recent decision in Google Search, which primarily relies on effects, not form. However, it is argued in this article that the Courts’ reluctance in this matter is mainly driven by worries about the effective enforcement of competition law. Thus, although the Courts have occasionally rejected requiring the Commission to prove effects in addition to the elements of form-based legal tests, it cannot be assumed that they are equally sceptical about relying on effects where such tests are unavailable. In fact, the Courts’ treatment of novel abuses, in particular, shows that they do not consider form a defining element of abuse, and that they are open to acknowledgement of competitive effects where these are actually established