Google, Intel Take Different Paths with EU Antitrust Charges

Both Google and Intel are embroiled in massive antitrust cases in the European Union, following the trail blazed by Microsoft a decade ago. But each company is taking its own decidedly different approach to the EU’s regulators. Intel, which was convicted of violating EU antitrust law in 2009, is now seeking to overturn that ruling and its record $1.44 billion fine. Google, meanwhile, is barreling towards an antitrust conviction of its own but has reached out to the EU to settle.

“The burden of proof on the [European] Commission is a heavy one … and the Commission simply has not met the burden of proof,” an Intel lawyer told an EU court recently. “The Commission’s analysis is simplistic and static and fails to capture the dynamics of competition.”

Intel was originally charged with antitrust violations in 2007, stemming from claims of preferential pricing aimed at harming its chief competitor, AMD. Its response was initially very Microsoft-like in that it was belligerent towards the EU and refused to admit it had done anything wrong.

Today, Intel claims the conviction was the result of “profoundly inadequate” evidence, the chip maker claims, and relies on a “subjective understanding” of how consumers could use the rebates at the center of the case. And now it’s looking to get the verdict, and its fine, thrown out. A panel of judges from the General Court in Luxembourg, the EU’s second-highest court, will soon hear arguments from both Intel and EU regulators over the course of a four-day hearing.

Intel’s case, like Microsoft’s before it, ran several long years and resulted in a withering and record fine. The EU would like to avoid such a lengthy outcome with Google, which is being investigated for a bewildering series of exploits separately across the continent. (Google faces other antitrust investigations around the world as well, including in the United States.) So when EU regulators contacted Google in May to apprise them of forthcoming antitrust charges related to Google Search’s preferential treatment of Google’s own services and three other serious issues, it provided Google with handy out that it never offered Microsoft or Intel: Settle first or you will be charged.

The goal here is obvious: With fast-moving Internet-based companies like Google making things up as they move along at an alarming pace, a several-years-long court battle could be disadvantageous to the consumers and businesses that the EU is trying to protect. So for this case, it’s changing the rules a bit and trying to nudge Google into making the right decisions upfront. And it explained exactly what Google would need to do to achieve a settlement proactively.

Google, apparently, has taken the bait. This week, it sent a proposal to EU regulators in response to the EU’s May outreach. However, the terms Google is offering remain a secret, and neither the company nor EU regulators have acknowledged what exactly Google has presented.

“We made a proposal to address the four areas the European Commission described as potential concerns,” a Google spokesperson said, without elaborating further. “We continue to work cooperatively with the Commission.”