The General Court largely confirms the Commission’s decision finding that Google imposed unlawful restrictions on manufacturers of Android mobile devices and mobile network operators in order to consolidate the dominant position of its search engine (Case T-604/18 – Google Android)
The European Union’s General Court (General Court) has rejected Google’s appeal against the Commission’s decision of July 18th 2018 by which the technological giant was sanctioned with a fine of €4.343 million for abusing its dominant position, in relation to the obligation that Google imposed on the manufacturers of mobile devices to preinstall the general search (Google Search) and (Chrome) browser apps in order to be able to obtain a licence from Google to use its app store (Play Store).
It is the second judgement regarding the three sanctions that the Commission has imposed on Google so far for abusing its dominant position. The judgment can now be appealed before the Court of Justice of the European Union (Court of Justice). In 2021, the General Court already confirmed the Commission’s condemnatory decision in the Google Shopping case. Google’s appeal against that judgment is currently pending before the Court of Justice (C-48/22 P).
In the Google Android case, the Commission had considered that, with the imposed restrictions, Google pretended to strengthen its dominant position in the field of general search services and, therefore, strengthen the revenue that it obtained as a result of the advertisements associated with the different searches.
In particular, regarding the preinstallation conditions imposed on the manufacturers of mobile devices, the General Court confirms the Commission’s thesis which considers that the preinstallation of some search engines could give rise to a ‘statu quo bias’, as a result of the tendency of users to use the search and browser apps available to them and apt to increase significantly and on a lasting basis the usage of the service concerned, an advantage which could not be offset by Google’s rivals.
According to the Commission, the agreements that Google had with the manufacturers of mobile phones were ‘exclusivity agreements’, given that the payments were subordinated to the fact that these manufacturers did not preinstall search engines from any other competitor, something that led the General Court to consider that behaviour as an abuse of its dominant position.
Finally, regarding the evaluation of the abusive character of the restrictions at hand, the General Court also confirms the Commission’s findings that the restrictions incorporated in the agreements against the fragmentation were abusive, given that the objective was to prevent the development and market presence of devices running a non-compatible Android. In that respect, the practice led to a reinforcement of Google’s dominant position in the market of general searching services, while it constituted a brake on innovation, given the fact that the diversity of offers to which the users could access was restricted.
On the other hand, the General Court has reduced the fine to €4.125 million, given the allegation that Google made regarding the violation of its defence’s rights because of the fact that the Commission rejected the celebration of an audience regarding the ‘as efficient competitor test’.
This judgement supposes a second victory for the Commission following the Google Shopping judgement (T-612/17), as it gives legitimacy to its thesis to apply competition law to large platforms, along with the Digital Markets Act (DMA), definitively approved in July 2022 by the European Union Council. The objective of the DMA is to regulate digital platforms to achieve fair competition in the digital markets, by banning certain practices used by large platforms acting as ‘gatekeepers’ to the digital markets that result in obstacles to competitor’s access to the final customers or that amount to abusive behaviour.
Google is still awaiting the General Court’s judgement concerning the third Commission decision against Google in the AdSense case (T-334/19), as well as the resolution by the Court of Justice in the Google Shopping case (C-48/22).
