General Court partially annuls the Commission’s Google-Android decision
In its judgment of 14 September 2022 (the “Judgment”), the General Court partially upheld Google’s appeal against the Commission’s 2018 Google/Android decision, but upheld the decision’s most important and consequential elements, thus confirming that certain of Google’s practices regarding the Android mobile platform could be considered parts of a strategy to protect and consolidate Google’s dominant position for online general search services and infringed Article 102 TFEU.
In summary, the General Court:
- confirmed the strict standards applicable to the assessment of exclusivity arrangements under Article 102, as developed in Intel and Qualcomm, and annulled the Commission’s finding that Google’s payments for the exclusive installation of Google apps on mobile phones under the portfolio-based Revenue Sharing Agreements (“RSAs”) infringed Article 102, faulting the Commission’s market coverage analysis and its use of the “as efficient competitor” (“AEC”) test;
- showed considerable deference to the Commission’s finding that the pre-installation requirements under the Mobile Application Distribution Agreements (“MADAs”), tying a license in the Google App Store to pre-installation of Google’s general search app (Google Search) and browser app (Google Chrome), foreclosed rival search app providers as it provided Google a competitively significant distribution advantage;
- upheld the Commission’s view that the anti-forking obligations under the Anti-Fragmentation Agreements (“AFAs”) which prohibited OEMs that sold devices with pre-installed Google apps from selling devices with non-compatible Android forks, restricted competition by preventing the emergence of alternative mobile platforms where rival search service providers could have promoted their products.