Even though the digital economy has been around for some time now, there are still doubts concerning, e.g., the way that law should be enforced in the digital context. Hence, the crucial role of expert knowledge in providing relevant insight is understandable. Due to its importance, the question of which sources, and for what reasons, should be considered as providing the relevant expertise is worth examining. In the post, I present the results of an analysis of references from the Commission’s decisions in three cases concerning Google published recently in the form of an article. The goal of the analysis was to identify references to expert knowledge, provide a classification of the roles played by these references, and confront them with the standards that the evidence used by the Commission should fulfil, as presented in the case law of the Court of Justice of the European Union (CJEU) and in doctrine. The results show that due to the variety of roles played by references to expert knowledge in the Commission’s decisions, the importance of following CJEU’s remarks on standards concerning expert knowledge is especially crucial when these sources are:
- used to support authoritative claims about digital technologies and markets, and
- in other cases, when they are indispensable for substantive analysis of the infringement itself or are not corroborating other types of evidence.
Standards concerning expert evidence in EU competition law
While the question of, e.g., classification of the evidence in EU competition law and, to a certain extent, the standards it should meet has been subjected to research, the specific character of the evidence-based on expert knowledge has not been examined in depth. This issue became a topic of the General Court’s (GC) remarks in the Google Android judgement. The GC provided a catalogue of requirements that the ‘statements or reports submitted – at a party’s request to support its claims – by a third party on the basis of the latter’s status as expert’ should meet, namely:
(1) the author ensured that their qualifications and experience are set out;
(2) they explained their relevance for providing the opinion;
(3) the content of the opinion sets out the reasons why it should be taken into consideration in terms of the reliability of the methodology used; and
(4) the content of the opinion sets out the reasons why it should be taken into consideration in terms of the relevance of the answer given to that question for the purposes of the present case.
The question which arises is to what extent the references made by the Commission to expert knowledge fulfil these criteria and in which cases they should do so in order to be considered as evidence of a probative value.
Sources and method
To be able to provide an evidence-based answer to this question, I identified references made by the Commission in three decisions concerning Google to sources such as articles in newspapers, blogs, portals, reports by think-tanks, scientific articles, and commercial databases (see dataset here). Due to the anonymisation of decisions, the dataset does not include all such references, nevertheless, it includes almost 360 positions. Next, I identified the context in which the references were made and, on its basis, I developed a typology of four roles which these references play in the Commission’s reasoning.
Four roles played by the references to expert knowledge in the Commission’s decisions in the Google saga
While, due to the above-mentioned anonymisation of the decisions, it is impossible to make definitive arguments based on quantitative analysis of this material, the results of the exploratory study provide us with an opportunity to look at the roles played by the references to expert knowledge in a nuanced manner.
- The references are, firstly, used as sources of knowledge about the history of technological development and the changes on digital markets. They are useful for describing, e.g., how certain companies attempted to take on a given market. Articles from the press, blogs, or portals in such a situation may be the most adequate source of information, especially if the given company does not exist anymore.
- Secondly, expert knowledge in used for explaining the way digital technologies and markets work. These technical details may be important for substantive analysis of the potential infringement, as, e.g., they may concern a technological aspect which has an impact on the substitutability of given products.
- Third, references are used for justifying authoritative claims about digital technologies and digital markets’ characteristics. This role is often linked to the exchange of arguments between the Commission and Google, in which the sources invoked by Google are critically assessed by the Commission, which indicates other interpretations of the data and information presented by the company.
- Fourth, expert knowledge is used for illustrating the story with data on the usage of digital technologies and the shape of digital markets. This role is vital for providing arguments for infringement, as it supports the Commission’s statements concerning, e.g., establishing what is the relevant market and what are the company’s shares in it. However, sometimes these types of information only provide background information which is not strictly relevant to the outcome of the analysis.
The value of the references in the first three of the described roles often comes from the fact that they are used for the corroboration of other types of evidence or for the provision of background information, which is not indispensable for the substantive analysis of the infringement itself. However, in the case of sources whose function it is to support authoritative claims about digital technologies and markets, I argue that these sources should conform to the requirements from the Google Android judgement (see above). Meaning that, among others, the following criteria should be fulfilled: indicate the author and the reasons why they should be considered as an expert in the area, explain the reliability of the methods and the relevance of the opinion for the analysis. Moreover, if the analysed types of sources serve other functions in the decisions but are indispensable for substantive analysis of the infringement itself or are not corroborating other types of evidence, these sources should also conform to the requirements presented in the Google Android judgement. This results from their self-standing character as evidence which is crucial for the main points of the Commission’s analysis. Thus, it is vital that the Commission makes references to sources that provide reliable information and not, e.g., media articles that describe reports based on unknown data.