Idealo proceedings: Judges see damage caused by Google

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In the proceedings of price comparison service Idealo against the US search engine giant, a conviction of Google for damages appears likely. However, there are many open questions, not only regarding the appropriate amount.

It is a process that has been ongoing for years and may ultimately not be that complicated. When the parties meet in the auction room of the district court on the morning of the oral hearing, which the Regional Court Berlin II, responsible for civil disputes, uses due to the great interest in the proceedings, neither party knows what to expect.

The case of price comparison provider Idealo, which belongs to the Axel Springer universe, has many facets. Idealo is seeking 3.3 billion euros in damages. The accusation: Google favored its own price comparison services and unlawfully hindered other providers like Idealo, despite its dominant market position. 2.7 billion euros is the minimum damage claimed, as the Idealo representatives made clear again in the morning. Google sees no damage whatsoever and no culpable misconduct, according to the lawyers' arguments.

EU decision decisive for the first period

The presiding judge at the Regional Court, Michael Vogel, takes time in the morning to give the numerous legal representatives of both parties some indications of what the chamber at the Regional Court would consider.

Because a decision by the EU Commission from 2017, which found Google's behavior to be hindering competitors in price comparison services, is to be considered final – after all of Google's legal objections were unsuccessful before the European courts – the court has no room for maneuver here. The court has "nothing to criticize or deviate from it," Vogel explains. Only for the period thereafter would the judges conduct their own assessment. At least on one point the line seems clear: "If traffic has been diverted, one must assume that damage may have occurred here."

Vogel repeatedly gives hints to the parties involved in the proceedings about what the court considers a plausible legal opinion and consequence. Much seems to suggest during the oral hearing in Berlin that the Regional Court sees damage attributable to Google or Alphabet, but a hearing is a long way from a verdict.

Damage that is difficult to grasp

The real crux, as emerges during the course of the hearing, consists of two things: How is the damage that Idealo and others have suffered to be properly assessed? Regarding the calculation and amount of damages, both sides have submitted extensive expert reports for the "counterfactual scenario," i.e., how the search engine would have developed if Google had not favored itself.

The chamber leaves open what the court considers plausible, but also gives a hint to Idealo's plaintiff side here. The court likely has doubts that every product search would lead to a potential price comparison user if Google had not started integrating price comparison into the results pages after the end of the unsuccessful Froogle product. "If you take that away now, whether the user would actually have landed on a comparison service in every case: Maybe, maybe not," says Michael Vogel.

The court will have to give this its own consideration if the parties do not reach a settlement after all. However, at least during the hearing, that seemed unlikely.

In addition to the possible amount of damages, the duration of the damages also remained controversial. Particularly relevant: How is the period to be assessed from which Google changed the display of prices via search results following the EU Commission's complaints? The fact that the EU Commission did not object to the changes does not mean that a situation contrary to competition did not exist.

Google's lawyers argued in court, among other things, that the company had stopped favoring its own services. Idealo itself had waived the opportunity to participate in the system of boxes called "Shopping Units," which had replaced the old price comparison display after the Commission's intervention. This is a marketplace independent of Google's other processes, to which all price comparison sites have been able to bid for years. And more is not required under European law, according to the company's lawyers.

The actual hearing, after extensive written submissions were exchanged beforehand, lasted only a few hours. And yet, all parties are likely to have a clearer view now of what the judges consider to require clarification and what does not. The responsible chamber at the Regional Court Berlin II will likely comment later in the day on how to proceed and when a verdict in the billion-dollar case can perhaps be expected.

"How evil can it get?"

In fact, the case is likely to occupy at least one more instance, regardless of what the chamber around the presiding judge at the Regional Court Berlin II decides. For both parties, too much money is at stake to accept a judge's ruling. For Idealo co-founder Albrecht von Sonntag, it's about almost everything. Google, he says after the hearing, has tried in a hasty manner to force all other price comparison providers into its infrastructure. "Are we stupid and send our inventory to our biggest competitor?" he asks. "How evil can it get?" von Sonntag asks in the courtroom. And he has another trump card: The proceedings against Google, which began in 2019 and were suspended for years, are limited to the legal situation before the entry into force of the Digital Markets Act – further claims are not excluded with this revised competition law.

At least: A forced auction, as regularly takes place in the Littenstraße courtroom, is not threatened for the US company even if the court were to go beyond Idealo's minimum damage calculation. Alphabet had a global turnover of 350 billion US dollars in 2024.

(mho)