Friday, March 19, 2021

Google left in the lurch: German government accepts Munich antitrust injunction over unfair treatment of health information portals as final decision

After the two spectacular preliminary injunctions that the Landgericht München I (Munich I Regional Court) entered on February 10 over the same issue (fair treatment of health information portals), both Google and the German federal government (specifically, the Federal Ministry of Health) had one month to appeal. What I've found out now from the regional appeals court, the Oberlandesgericht München (Munich Higher Regional Court), serves to validate the five-star rating two pre-eminent German antitrust experts gave the Munich court's decision:

While an appeal was filed in the Google case (appellate case no. 29 U 1317/21), the German government did not do so in its own case. A few days ago, Germany's leading news agency DPA reported that the Federal Ministry of Health had not responded to multiple inquiries concerning its plans. By now, about a week over the deadline, it's certain that Google has to go it alone.

I've also been able to find out in Germany that the government has formally accepted the preliminary injunction as final, meaning that the court order is now, in fact, a permanent injunction with respect to the government. There won't be a full-blown trial in the case against the government.

Google told the media a few days ago that it had merely filed a notice of appeal to buy itself more time to weigh its options. At the time of Google's notice of appeal, it wasn't clear yet what the government was going to do.

The monopolist now has to decide on whether to pursue this appeal, in which case it needs to file an opening brief soon. Otherwise its appeal will be dismissed automatically. Given that the Federal Ministry of Health is barred from this type of partnership with Google for the foreseeable future, and knowing that the government's acceptance of the preliminary injunction as the final ruling in the case lends additional credence to the lower court's ruling, Google might just abandon its appeal now. Of course, Google has the right to seek a review of the decision as a matter of principle, if only to demonstrate that it vigorously defends its conduct even though there's no more chance of an immediate commercial benefit.

For Hubert Burda Media, the owner of the health information portal, it's "mission accomplished." In my previous post on this dispute I already gave credit to the Hausfeld lawyers who made it happen. Of course, the government's decision to fold is in no small part attributable to the quality of the Munich I Regional Court's well-reasoned ruling (37th Civil Chamber; Presiding Judge: Dr. Gesa Lutz). My guess is that the government gave up because affirmance of the decision appeared rather likely and would have reflected unfavorably on Federal Minister of Health Jens Spahn.

Share with other professionals via LinkedIn: