Munich Regional Court rules: Unhealthy alliance between Google and the German Government in breach of competition law

On February 10, 2021, in two landmark antitrust decisions, a Munich Regional Court, temporarily blocked a cooperative arrangement regarding internet search results between the German Federal Ministry of Health (Bundesministerium für Gesundheit, BMG) and Google on antitrust grounds.

The arrangement between Google and the BMG provided for preferential positioning of a national health information portal run by the BMG (https://gesund.bund.de/) on Google’s German search website. When users of Google in Germany searched for information on health conditions, they were shown a prominently displayed information box (a so-called knowledge panel) containing information originating from the national health portal as well as a link to the portal.

The Court found that positioning the knowledge panel with the link to BMG’s health information portal above the websites of competing health portals disadvantaged private-sector health information providers such as the plaintiff in this case, NetDoktor.de (NetDoktor), a subsidiary of the Hubert Burda Media Group. Competition was therefore foreclosed.

Interesting takeaways from the Court’s decision are:

• The health information portal operated by the BMG is not merely a governmental activity, which would fall outside the scope of competition law. It has an economic dimension – so is subject to competition law.
• Google is a gatekeeper for the services provided by NetDoktor. Around 90 per cent of users of NetDoktor’s health portal arrive at its webpage via a Google search. NetDoktor is therefore particularly dependent on good visibility on Google’s search results page for traffic to its portal.
• The fact that the knowledge panel, which appears whenever users of Google in Germany search for certain health-related keywords, is unavailable to private-sector entities (i.e. is exclusively reserved for the BMG) means it is restrictive of competition in the market for health information portals.
• Knowledge panels attract the attention of users away from general search results, and satisfy the user’s need for information. This not only leads to a reduction in user traffic to NetDoktor’s website, and therefore a restriction of competition in the market for health information portals, but also potentially the loss of advertising revenue that NetDoktor, as a private provider, uses to finance its portal.
• The cooperation between Google and the BMG also does not qualify for exemption from an infringement on the basis of qualitative efficiency gains (such as possible efficiencies related to a reduction in search effort for users or improving health education of the population through the information box). Any advantages arising from the cooperation do not outweigh the obvious disadvantages – in particular, possible foreclosure of reputable private health portals and the associated threat of a reduction in diversity of media and opinion.

The full text of the rulings (which are not final – they are interim measures proceedings) is not available yet, but the press release issued by the Regional Court in Munich can be found here. Google and the German Government can appeal the interim rulings to the Higher Regional Court in Munich, and it will be interesting to watch any developments in this regard. The case reference numbers are 37 O 15721/20 and 37 O 17520/20.