The General Court has issued its decision in Case T-604/18 Google and Alphabet v Commission (Google Android).
According to the European Commission, the Android operating system was installed on approximately 80% of smart mobile devices used in Europe in July 2018. Various complaints were submitted to the Commission regarding some of Google’s business practices in the mobile internet, leading the Commission to initiate a procedure against Google in relation to Android on 15 April 2015.
On 18 July 2018, the Commission fined Google for having abused its dominant position by imposing anticompetitive contractual restrictions on manufacturers of mobile devices and on mobile network operators, in some cases since 1 January 2011. These included restrictions in ‘distribution agreements’, requiring manufacturers of mobile devices to pre-install the general search (Google search) and (Chrome) browser apps to be able to obtain a licence from Google to use its Play Store. Restrictions were also contained in ‘anti-fragmentation agreements’, under which the operating licences necessary for the pre-installation of the Google Search and Play Store apps could be obtained by mobile device manufacturers only if they undertook not to sell devices running versions of the Android operating system not approved by Google. Finally, restrictions were contained in ‘revenue share agreements’, under which the grant of a share of Google’s advertising revenue to the manufacturers of mobile devices and the mobile network operators concerned was subject to their undertaking not to pre-install a competing general search service on a predefined portfolio of devices.
According to the Commission, the objective of all those restrictions was to protect and strengthen Google’s dominant position in relation to general search services and, therefore, the revenue obtained by Google through search advertisements. This infringed Article 102 TFEU and Article 54 of the Agreement on the European Economic Area. The Commission imposed a fine of almost €4.343 billion on Google.
Google appealed. The General Court largely dismissed the appeal. However, it annulled the decision regarding the portfolio-based revenue share agreements. The Court also set the fine imposed on Google at €4.125 billion.
The court rejected Google’s arguments that there were errors of assessment in the definition of the relevant markets and in the subsequent assessment of Google’s dominant position in some of those markets. It also rejected the arguments that the finding that the restrictions at issue were abusive was incorrect. It also rejected Google’s argument that the finding that the pre-installation conditions were abusive was incorrect.
With regards to the assessment of the sole pre-installation condition in the portfolio-based revenue share agreements, the General Court upheld the Commission’s view that the agreements were exclusivity agreements. However, it rejected other elements of the Commission’s reasoning and upheld Google’s appeal in those areas.
It upheld the Commission’s assessment of the restrictions contained in the anti-fragmentation agreements.
Google had also argued that there were procedural problems, that its right of access to the file was infringed and that its right to be heard was not respected. The Court upheld these complaints and would have annulled the finding about the abusive nature of the portfolio-based revenue share agreements for this reason too.
Finally, the Court independently assessed the level of fine. Although it annulled part of the decision with regard to the portfolio-based revenue share agreements, that did not affect the overall infringement finding. The General Court ruled that it is appropriate to vary the contested decision, concluding that the amount of the fine to be imposed on Google for the infringement committed is to be €4.125 billion.
