Thursday, June 19, 2025

The E.U. on Anti-Trust Enforcement: The Case of Google

On June 19, 2025, when the European Court of Justice, the E.U.’s supreme court, received a nonbinding opinion from the advocate general, Juliane Kokott, recommending that Google’s appeal against an anti-trust fine of €4 billion be dismissed by the court. The E.U.’s executive branch, the Commission, had found in 2018 that the company had “used the dominance of its mobile Android operating system to throttle competition and reduce consumer choice.”[1] I contend that the company’s written statement in response can be characterized as “stone-deaf” or oblivious to the issue at hand. Such is not an effective way of managing threats in the environment of business. Moreover, the response itself illustrates why governmental action on anti-trust on behalf of market competition is valid and necessary. I contend that the invisible-hand mechanism of a restored competitive market is more reliable than depending on managerial intentions even if they are to be based on motivation that is social-engineered from fines.

The fine of €4 billion is part of a total of €8 billion against Google for anti-trust violations over a decade, including on the company’s digital ad unit. So, a pattern of restraint of trade can be inferred. As if obvious to it, the company statement in reaction to Kokott’s recommendation included, “Android has created more choice for everyone and supports thousands of successful businesses in Europe and around the world.”[2] That the advent of android technology had given consumers another option says nothing about whether Google was also curtailing other options. That many businesses were using android technology is not a rebuttal to the government’s claim that Google was operating in restraint of trade. In fact, that many businesses were using Google’s technology means that the company’s market share, and thus market power, were enough for the company to be able to restrain competition in the industry. In wanting to brag (or advertise), the managers at Google who wrote and approved the statement were unwittingly making the government’s case. Unsuccessful companies do not have sufficient market-power to restrict or curtail competition as John D. Rockefeller’s Standard Oil did in the U.S. until that company was broken up (rather badly) by the U.S. Supreme Court on anti-trust grounds. This example begs the question of whether merely slapping Google with fines is sufficient to arrest the company’s pattern of restraining trade. Both the pattern and the bragging illustrate the tone-deaf feature of greed that narrows cognition and perception. In applying a fine to Google, the E.U. regulators would be naïve in believing that the company’s managers would then be motivated to stop curtailing competition. At the very least, the Commission’s commissioner for competition would still need to watch Google like a hawk.

I contend that it is vital to the public interest, or common good, of a society that competitive markets be protected and even created out of oligopolies by governments; this is a legitimate role for government because price-competition forces suppliers to be price-takers rather than price-setters. Only as the former are suppliers oriented to demand. This crucial role of price in a competitive market was arguably Adam Smith’s best contribution, or “value added,” to economic theory. The “invisible hand” by which buyers and sellers are both price-takers can be understood as an impersonal mechanism that constrains self-interest and even gives rise to unintended beneficial consequences of self-interest as goods and services are allocated efficiently rather than according to the self-interested will of a monopolist.

Even more abstractly, self-interest stems from the sin of self-love, which is the putting of one’s own happiness above love directed to God, so constraining especially narrow self-interest is important so as to obviate the baleful effects from greed that is oriented only to one’s own private benefit. In other words, that such self-interest is based ultimately on the sin of self-idolatry (i.e., worshipping one’s own happiness even at the expense of loving God) means that a society is wise at the very least to constrain even self-interests that are economically aggregated with unintended beneficial consequences. Smith’s “invisible hand” impersonal mechanism, if protected by government anti-trust enforcement, is more reliable, I submit, than even intended beneficial consequences that are conditional on human intention and thus motivation. This is why downsizing Google in the E.U. is preferable to trying to motivate Google’s management to stop restraining competition in its industry by means of fines.

Pierre Nicole, a Jansenist priest in the seventeenth century, argued that self-love can have beneficial consequences. The consequences are intended, but only in so far as the benefits going to others are in one’s own self-interest. Courtesy, for example, although rooted in self-love and thus fully in accord with self-interest, constrains immediate or narrow self-interest that runs unfettered in Hobbes’ state of nature. Simply put, we can get more by being social with other people than by taking their food and even killing them. Smith’s impersonal market mechanism also constrains narrow (or immediate) self-interest, such as raw greed, even though the untended aspect of the invisible hand differs from Nicole’s intended courtesy, and the impersonal aspect of Smith’s market mechanism differs from Nicole’s personal motive to extend courtesy to others because it is in one’s interest to do so. Also, whereas the invisible hand constrains self-interest itself, though competition may ultimately be in a company’s long-term best financial interest, extending courtesy to others only constrains narrow (or immediate) self-interest. In other words, narrow self-interest, in which only private benefits to oneself are sought, is constrained by both approaches and so they can be compared. But courtesy can easily be turned off, as it depends on intention, whereas the invisible hand’s operation does not depend on market participants intentions to constrain their own self-interest. As self-love is a manifestation of the foundational sin of pride, according to Augustine, a person’s intentions to constrain one’s own self-interest in actions cannot be relied upon even though it is laudable when a person assumes an enlightened self-interest and even acts altruistically. In assuming a managerial role in a company, a human being comports oneself to one’s narrow economic role, which willows one’s intentions that go beyond immediate or medium-term financial interests, both in terms of salary and company profitability.

It bears remembering that even though part of the literature on corporate social responsibility in the twentieth century includes ethical principles, CSR programs have become largely marketing. Indeed, the fiduciary duty of managers to the stockholders as a group mandates that the managers be oriented to maximizing profit (and thus dividends and the stock price). This legal infrastructure encases narrow self-interest, which benefits from restraining trade in order to increase market power and profit. Therefore, it should not be surprising that Google’s written reaction to the judicial opinion of the advocate general bears no traces of responsibility to uphold a competitive market for the good of society, but can instead be interpreted as sheer marketing. Lots of businesses use our product! Rockefeller could have said the same. That titan, who viewed himself as a “Christ figure” and a Noah in saving rival refiners from destructive competition in the 1860s by forcing them abord his “combination,” was also found guilty of restraint of trade. His self-deluded intentions certainly could not be trusted by the Supreme Court justices who ruled in favor of breaking up his company. In the 2020’s, the E.U. was surpassing the U.S. on anti-trust enforcement, but even so, I submit that motive-triggering fines are not sufficient to restoring and protecting market competition once there is an egocentric giant in the room.