Today, the Court of Justice dismissed Google and Alphabet’s appeal in the Google Android case and upheld the €4.125 billion fine imposed following the General Court’s partial annulment in 2022. By way of reminder, the Commission had found that Google abused its dominant position through several Android related restrictions:

• 𝐓𝐲𝐢𝐧𝐠: requiring smartphone manufacturers to preinstall various Google apps to be permitted to install Google’s dominant apps Play Store and Google Search;
• 𝐔𝐧𝐜𝐨𝐧𝐧𝐞𝐜𝐭𝐞𝐝 𝐬𝐮𝐩𝐩𝐥𝐞𝐦𝐞𝐧𝐭𝐚𝐫𝐲 𝐨𝐛𝐥𝐢𝐠𝐚𝐭𝐢𝐨𝐧: making manufacturers’ access to Play Store and Google Search conditional on not selling devices running unapproved versions of Android; and
• 𝐄𝐱𝐜𝐥𝐮𝐬𝐢𝐯𝐢𝐭𝐲 𝐩𝐚𝐲𝐦𝐞𝐧𝐭𝐬: granting revenue share payments on condition that competing search services were not pre-installed on any device within an agreed portfolio.

The General Court had largely upheld the Commission’s decision, except as regards the exclusivity payments. This had resulted in a slight reduction of the fine.

𝐀 𝐟𝐞𝐰 𝐤𝐞𝐲 𝐭𝐚𝐤𝐞𝐚𝐰𝐚𝐲𝐬 𝐨𝐟 𝐭𝐨𝐝𝐚𝐲’𝐬 𝐣𝐮𝐝𝐠𝐦𝐞𝐧𝐭

First, the Court confirmed the importance of status quo bias in digital markets when assessing exclusionary effects. It held in paragraphs 201-214 that the Commission and the General Court could rely on evidence showing that, in practice, competing apps were rarely downloaded where the Google apps in question were pre-installed. The Court further ruled that it was for Alphabet to substantiate its argument that user behaviour was explained by consumer preference or superior quality rather than by the tying.

Second, the Court provided further guidance on the need for an as efficient competitor test when demonstrating exclusionary effects in paragraphs 272-278. In its Intel judgment of 24 October 2024, the Court had ruled that the as efficient competitor test must be applied to both pricing and non-pricing practices. In the present judgement, the Court confirmed this but reiterated its ruling in Google Shopping that this does not mean that the test is required in “situations in which it is not possible, nor makes sense”. According to the Court, this is particularly important in digital markets.

Third, the Court confirmed in paragraphs 224-232 that a counterfactual analysis is not the only way to establish causality between the abusive conduct and its exclusionary effects. Competition authorities may rely on a broader body of evidence.

👉 𝐐𝐮𝐞𝐬𝐭𝐢𝐨𝐧𝐬? Feel free to reach out to our competition team or your usual contact at 𝐜𝐨𝐧𝐭𝐫𝐚𝐬𝐭.