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service168. These strategies can be conceived if search and non-search advertising are deemed to be in separate markets.

  • 331.

    Practically, this would mean that advertisers wanting to place search ads via Google or via Google's (search) ad intermediation (AdWords) would be (contractually) required to make a certain minimum use of DFA in case they use display ads at all. Equally, publishers wanting to use Google's (search) ad intermediation could be obliged to use DFP, either on a contractual basis or by means of a technological tie, whereby publishers could only market their inventory on AdSense if they use DFP. Alternatively, Google could use its pricing to induce advertisers and publishers who utilize AdWords or AdSense to (voluntarily) utilize DFA or DFP. The main concern in this context is foreclosure in the sense that the acquisition of DoubleClick may confer on Google the ability and incentive to leverage its strong market position with regard to the provision of online advertising space for search ads or the provision of (search) ad intermediation services into the market for the provision of ad serving for display ads, thereby reducing the ability and incentive of actual or potential rivals in the ad serving market to compete. Ultimately, the merged entity's strategy could be to use its strengthened position in the ad serving market to impose an even wider bundle on advertisers and publishers, which would include also Google's non- search intermediation services, thereby foreclosing also its actual and potential rivals in non-search intermediation.

  • 332.

    The Commission analysed these concerns and found that the proposed transaction would not bring about such a degree of foreclosure that competition would be significantly impeded. While it cannot be excluded completely that Google may have the ability to foreclose its rivals by bundling the provision of online advertising space for search ads or the provision of (search) ad intermediation services with DoubleClick's ad serving technology (and to ultimately extend such strategy by also including non-search intermediation in the bundle), the Commission found that the merged entity would most likely not have an incentive to adopt such a strategy. In any event, such a strategy would not have a significant detrimental effect on competition because a number of financially strong, vertically integrated competitors would not be foreclosed.


          Ability to foreclose

    • 333.

      As recognised by the Non-Horizontal Merger Guidelines, in order to be able to foreclose competitors, the new entity must have a significant degree of market power (which does not necessarily amount to dominance) in one of the markets concerned. In particular, the Guidelines note that the effects of bundling or tying can only be expected to be substantial when at least one of the merging parties’


Given Google's high market shares in the overall intermediation market and each of its two possible sub segments (i.e. search intermediation and non-search intermediation), this section considers bundling strategies whereby either of the following three types of intermediation services serves as the bundling service: (1) Google's intermediation services as whole (search & non-search); (2) Google's search intermediation services only; and (3) Google's non-search intermediation services only.


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