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"permanent_url": "https://legal.exploreworldai.com/novacopilot", "source": "Source: NovaCopilot", "powered_by": "Powered by NovaCopilot", "license": "https://legal.exploreworldai.com/licensvillkor" }, "sections": [ { "title": "62022CJ0738", "paragraphs": [] }, { "title": "JUDGMENT OF THE COURT (Second Chamber)", "paragraphs": [] }, { "title": "2 July 2026 (\n *1\n )", "paragraphs": [] }, { "title": "Table of Contents", "paragraphs": [] }, { "title": "I. Legal context", "paragraphs": [] }, { "title": "II. Background to the dispute and the decision at issue", "paragraphs": [] }, { "title": "A. Factual context", "paragraphs": [] }, { "title": "B. The procedure before the Commission and the decision at issue", "paragraphs": [] }, { "title": "1. Tying of the Google Search app", "paragraphs": [] }, { "title": "2. Tying of the Chrome browser", "paragraphs": [ "para_11", "para_12" ] }, { "title": "5. Duration of the restrictions at issue and the fine", "paragraphs": [] }, { "title": "III. The procedure before the General Court and the judgment under appeal", "paragraphs": [ "para_15", "para_16" ] }, { "title": "1. Observations of the General Court on contextual matters", "paragraphs": [] }, { "title": "2. First part, concerning the ‘foreclosure of competition’", "paragraphs": [] }, { "title": "3. Second part, concerning objective justifications", "paragraphs": [ "para_20", "para_21" ] }, { "title": "1. First part, concerning the restriction of competition", "paragraphs": [] }, { "title": "2. Second part, concerning objective justifications", "paragraphs": [] }, { "title": "E. Fifth plea in law", "paragraphs": [] }, { "title": "F. Sixth plea in law", "paragraphs": [ "para_26" ] }, { "title": "V. The appeal", "paragraphs": [] }, { "title": "A. First ground of appeal", "paragraphs": [] }, { "title": "1. Arguments of the parties", "paragraphs": [] }, { "title": "(a) First part", "paragraphs": [] }, { "title": "(b) Second part", "paragraphs": [] }, { "title": "(c) Third part", "paragraphs": [] }, { "title": "(d) Fourth part", "paragraphs": [] }, { "title": "2. Findings of the Court", "paragraphs": [] }, { "title": "(a) Admissibility and effectiveness of the first ground of appeal", "paragraphs": [] }, { "title": "(b) First part", "paragraphs": [] }, { "title": "(c) Second part", "paragraphs": [] }, { "title": "(d) Third part", "paragraphs": [] }, { "title": "(e) Fourth part", "paragraphs": [] }, { "title": "B. Second ground of appeal", "paragraphs": [] }, { "title": "1. Arguments of the parties", "paragraphs": [] }, { "title": "(a) First part", "paragraphs": [] }, { "title": "(1) First complaint", "paragraphs": [] }, { "title": "(2) Second complaint", "paragraphs": [] }, { "title": "(3) Third complaint", "paragraphs": [] }, { "title": "(b) Second part", "paragraphs": [] }, { "title": "(1) First complaint", "paragraphs": [] }, { "title": "(2) Second complaint", "paragraphs": [] }, { "title": "2. Findings of the Court", "paragraphs": [] }, { "title": "(a) General considerations", "paragraphs": [] }, { "title": "(b) First part", "paragraphs": [] }, { "title": "(c) Second part", "paragraphs": [] }, { "title": "C. Third ground of appeal", "paragraphs": [] }, { "title": "1. Arguments of the parties", "paragraphs": [] }, { "title": "(a) First part", "paragraphs": [] }, { "title": "(b) Second part", "paragraphs": [] }, { "title": "2. Findings of the Court", "paragraphs": [] }, { "title": "(a) First part", "paragraphs": [] }, { "title": "(b) Second part", "paragraphs": [] }, { "title": "D. Fourth ground of appeal", "paragraphs": [] }, { "title": "1. Arguments of the parties", "paragraphs": [] }, { "title": "2. Findings of the Court", "paragraphs": [] }, { "title": "E. Fifth ground of appeal", "paragraphs": [] }, { "title": "1. Arguments of the parties", "paragraphs": [] }, { "title": "2. Findings of the Court", "paragraphs": [] }, { "title": "F. Sixth ground of appeal", "paragraphs": [] }, { "title": "1. Arguments of the parties", "paragraphs": [] }, { "title": "2. Findings of the Court", "paragraphs": [] }, { "title": "VI. Costs", "paragraphs": [ "para_70", "para_71", "para_72", "para_73", "para_74", "para_75", "para_76", "para_77", "para_78", "para_79", "para_80", "para_81", "para_82", "para_83", "para_84", "para_85", "para_86", "para_87", "para_88", "para_89", "para_90", "para_91", "para_92", "para_93", "para_94", "para_95", "para_96", "para_97", "para_98", "para_99" ] }, { "title": "Judgment", "paragraphs": [] }, { "title": "1", "paragraphs": [ "para_102", "para_103", "para_104", "para_105", "para_106", "para_107", "para_108" ] }, { "title": "I.   Legal context", "paragraphs": [] }, { "title": "2", "paragraphs": [] }, { "title": "Article 102 TFEU provides:", "paragraphs": [ "para_112" ] }, { "title": "Such abuse may, in particular, consist in:", "paragraphs": [] }, { "title": "(a)", "paragraphs": [ "para_115" ] }, { "title": "(b)", "paragraphs": [ "para_117" ] }, { "title": "(c)", "paragraphs": [ "para_119" ] }, { "title": "(d)", "paragraphs": [ "para_121" ] }, { "title": "3", "paragraphs": [ "para_123", "para_124" ] }, { "title": "(a)", "paragraphs": [ "para_126", "para_127", "para_128" ] }, { "title": "4", "paragraphs": [] }, { "title": "Article 31 of that regulation provides:", "paragraphs": [ "para_131" ] }, { "title": "II.   Background to the dispute and the decision at issue", "paragraphs": [] }, { "title": "5", "paragraphs": [ "para_134" ] }, { "title": "A.   Factual context", "paragraphs": [] }, { "title": "6", "paragraphs": [ "para_137" ] }, { "title": "7", "paragraphs": [ "para_139" ] }, { "title": "8", "paragraphs": [ "para_141" ] }, { "title": "B.   The procedure before the Commission and the decision at issue", "paragraphs": [] }, { "title": "9", "paragraphs": [ "para_144" ] }, { "title": "10", "paragraphs": [ "para_146" ] }, { "title": "11", "paragraphs": [ "para_148" ] }, { "title": "12", "paragraphs": [] }, { "title": "Four sets of contractual restrictions are thus identified in the decision at issue:", "paragraphs": [ "para_151", "para_152", "para_153", "para_154", "para_155", "para_156" ] }, { "title": "13", "paragraphs": [ "para_158" ] }, { "title": "1.\n  \n Tying of the Google Search app", "paragraphs": [] }, { "title": "14", "paragraphs": [ "para_161" ] }, { "title": "15", "paragraphs": [ "para_163" ] }, { "title": "16", "paragraphs": [ "para_165" ] }, { "title": "17", "paragraphs": [ "para_167" ] }, { "title": "2.\n  \n Tying of the Chrome browser", "paragraphs": [] }, { "title": "18", "paragraphs": [ "para_170" ] }, { "title": "19", "paragraphs": [ "para_172" ] }, { "title": "20", "paragraphs": [ "para_174" ] }, { "title": "21", "paragraphs": [ "para_176", "para_177" ] }, { "title": "22", "paragraphs": [ "para_179" ] }, { "title": "23", "paragraphs": [ "para_181" ] }, { "title": "24", "paragraphs": [ "para_183" ] }, { "title": "25", "paragraphs": [ "para_185" ] }, { "title": "26", "paragraphs": [ "para_187", "para_188" ] }, { "title": "27", "paragraphs": [ "para_190" ] }, { "title": "28", "paragraphs": [ "para_192" ] }, { "title": "29", "paragraphs": [ "para_194" ] }, { "title": "30", "paragraphs": [ "para_196" ] }, { "title": "31", "paragraphs": [ "para_198" ] }, { "title": "5.\n  \n Duration of the restrictions at issue and the fine", "paragraphs": [] }, { "title": "32", "paragraphs": [ "para_201" ] }, { "title": "33", "paragraphs": [ "para_203" ] }, { "title": "34", "paragraphs": [ "para_205" ] }, { "title": "III.   The procedure before the General Court and the judgment under appeal", "paragraphs": [] }, { "title": "35", "paragraphs": [ "para_208" ] }, { "title": "36", "paragraphs": [ "para_210" ] }, { "title": "37", "paragraphs": [ "para_212", "para_213" ] }, { "title": "38", "paragraphs": [ "para_215" ] }, { "title": "39", "paragraphs": [ "para_217" ] }, { "title": "40", "paragraphs": [ "para_219" ] }, { "title": "41", "paragraphs": [ "para_221", "para_222" ] }, { "title": "42", "paragraphs": [ "para_224" ] }, { "title": "1.\n  \n Observations of the General Court on contextual matters", "paragraphs": [] }, { "title": "43", "paragraphs": [ "para_227" ] }, { "title": "44", "paragraphs": [ "para_229" ] }, { "title": "45", "paragraphs": [ "para_231", "para_232", "para_233", "para_234", "para_235", "para_236", "para_237", "para_238", "para_239", "para_240", "para_241" ] }, { "title": "46", "paragraphs": [ "para_243" ] }, { "title": "47", "paragraphs": [ "para_245" ] }, { "title": "48", "paragraphs": [ "para_247" ] }, { "title": "49", "paragraphs": [ "para_249", "para_250", "para_251", "para_252", "para_253" ] }, { "title": "50", "paragraphs": [ "para_255" ] }, { "title": "2.\n  \n First part, concerning the ‘foreclosure of competition’", "paragraphs": [] }, { "title": "51", "paragraphs": [ "para_258" ] }, { "title": "52", "paragraphs": [ "para_260" ] }, { "title": "53", "paragraphs": [ "para_262" ] }, { "title": "54", "paragraphs": [ "para_264" ] }, { "title": "55", "paragraphs": [ "para_266" ] }, { "title": "56", "paragraphs": [ "para_268" ] }, { "title": "57", "paragraphs": [ "para_270" ] }, { "title": "58", "paragraphs": [ "para_272" ] }, { "title": "59", "paragraphs": [ "para_274" ] }, { "title": "60", "paragraphs": [ "para_276" ] }, { "title": "61", "paragraphs": [ "para_278" ] }, { "title": "62", "paragraphs": [ "para_280" ] }, { "title": "63", "paragraphs": [ "para_282" ] }, { "title": "64", "paragraphs": [ "para_284" ] }, { "title": "65", "paragraphs": [ "para_286" ] }, { "title": "66", "paragraphs": [ "para_288" ] }, { "title": "67", "paragraphs": [ "para_290" ] }, { "title": "68", "paragraphs": [ "para_292" ] }, { "title": "69", "paragraphs": [ "para_294" ] }, { "title": "70", "paragraphs": [ "para_296" ] }, { "title": "71", "paragraphs": [ "para_298" ] }, { "title": "72", "paragraphs": [ "para_300" ] }, { "title": "73", "paragraphs": [ "para_302" ] }, { "title": "74", "paragraphs": [ "para_304" ] }, { "title": "75", "paragraphs": [ "para_306" ] }, { "title": "3.\n  \n Second part, concerning objective justifications", "paragraphs": [] }, { "title": "76", "paragraphs": [ "para_309" ] }, { "title": "77", "paragraphs": [ "para_311" ] }, { "title": "78", "paragraphs": [ "para_313" ] }, { "title": "79", "paragraphs": [ "para_315", "para_316" ] }, { "title": "80", "paragraphs": [ "para_318" ] }, { "title": "81", "paragraphs": [ "para_320" ] }, { "title": "82", "paragraphs": [ "para_322" ] }, { "title": "83", "paragraphs": [ "para_324", "para_325" ] }, { "title": "84", "paragraphs": [ "para_327" ] }, { "title": "85", "paragraphs": [ "para_329" ] }, { "title": "86", "paragraphs": [ "para_331" ] }, { "title": "87", "paragraphs": [ "para_333" ] }, { "title": "1.\n  \n First part, concerning the restriction of competition", "paragraphs": [] }, { "title": "88", "paragraphs": [ "para_336" ] }, { "title": "89", "paragraphs": [ "para_338" ] }, { "title": "90", "paragraphs": [ "para_340" ] }, { "title": "91", "paragraphs": [ "para_342" ] }, { "title": "92", "paragraphs": [ "para_344" ] }, { "title": "93", "paragraphs": [ "para_346" ] }, { "title": "94", "paragraphs": [ "para_348" ] }, { "title": "95", "paragraphs": [ "para_350" ] }, { "title": "96", "paragraphs": [ "para_352" ] }, { "title": "97", "paragraphs": [ "para_354" ] }, { "title": "2.\n  \n Second part, concerning objective justifications", "paragraphs": [] }, { "title": "98", "paragraphs": [ "para_357" ] }, { "title": "99", "paragraphs": [ "para_359" ] }, { "title": "100", "paragraphs": [ "para_361" ] }, { "title": "101", "paragraphs": [ "para_363" ] }, { "title": "102", "paragraphs": [ "para_365" ] }, { "title": "103", "paragraphs": [ "para_367" ] }, { "title": "104", "paragraphs": [ "para_369" ] }, { "title": "105", "paragraphs": [ "para_371" ] }, { "title": "E.   Fifth plea in law", "paragraphs": [] }, { "title": "106", "paragraphs": [ "para_374" ] }, { "title": "107", "paragraphs": [ "para_376" ] }, { "title": "108", "paragraphs": [ "para_378" ] }, { "title": "109", "paragraphs": [ "para_380" ] }, { "title": "110", "paragraphs": [ "para_382" ] }, { "title": "111", "paragraphs": [ "para_384" ] }, { "title": "112", "paragraphs": [ "para_386" ] }, { "title": "113", "paragraphs": [ "para_388" ] }, { "title": "114", "paragraphs": [ "para_390" ] }, { "title": "115", "paragraphs": [ "para_392" ] }, { "title": "F.   Sixth plea in law", "paragraphs": [] }, { "title": "116", "paragraphs": [ "para_395" ] }, { "title": "117", "paragraphs": [ "para_397" ] }, { "title": "118", "paragraphs": [ "para_399" ] }, { "title": "119", "paragraphs": [ "para_401" ] }, { "title": "120", "paragraphs": [ "para_403" ] }, { "title": "121", "paragraphs": [ "para_405" ] }, { "title": "122", "paragraphs": [ "para_407" ] }, { "title": "123", "paragraphs": [ "para_409" ] }, { "title": "124", "paragraphs": [ "para_411" ] }, { "title": "125", "paragraphs": [ "para_413" ] }, { "title": "126", "paragraphs": [ "para_415" ] }, { "title": "127", "paragraphs": [ "para_417" ] }, { "title": "128", "paragraphs": [ "para_419" ] }, { "title": "129", "paragraphs": [ "para_421" ] }, { "title": "130", "paragraphs": [ "para_423" ] }, { "title": "131", "paragraphs": [ "para_425" ] }, { "title": "132", "paragraphs": [ "para_427" ] }, { "title": "133", "paragraphs": [ "para_429" ] }, { "title": "134", "paragraphs": [ "para_431" ] }, { "title": "135", "paragraphs": [ "para_433" ] }, { "title": "136", "paragraphs": [ "para_435" ] }, { "title": "137", "paragraphs": [ "para_437" ] }, { "title": "138", "paragraphs": [ "para_439" ] }, { "title": "139", "paragraphs": [ "para_441" ] }, { "title": "140", "paragraphs": [ "para_443", "para_444" ] }, { "title": "141", "paragraphs": [ "para_446", "para_447", "para_448", "para_449", "para_450", "para_451", "para_452", "para_453", "para_454", "para_455", "para_456" ] }, { "title": "142", "paragraphs": [] }, { "title": "The Commission, BEUC, FairSearch and Seznam contend that the Court should:", "paragraphs": [ "para_459", "para_460", "para_461", "para_462" ] }, { "title": "143", "paragraphs": [ "para_464" ] }, { "title": "V.   The appeal", "paragraphs": [] }, { "title": "144", "paragraphs": [ "para_467" ] }, { "title": "A.   First ground of appeal", "paragraphs": [] }, { "title": "1.\n  \n Arguments of the parties", "paragraphs": [] }, { "title": "145", "paragraphs": [ "para_471" ] }, { "title": "146", "paragraphs": [ "para_473" ] }, { "title": "147", "paragraphs": [ "para_475" ] }, { "title": "148", "paragraphs": [ "para_477" ] }, { "title": "(a)\n  \n First part", "paragraphs": [] }, { "title": "149", "paragraphs": [ "para_480" ] }, { "title": "150", "paragraphs": [ "para_482" ] }, { "title": "151", "paragraphs": [ "para_484" ] }, { "title": "152", "paragraphs": [ "para_486" ] }, { "title": "153", "paragraphs": [ "para_488" ] }, { "title": "154", "paragraphs": [ "para_490" ] }, { "title": "(b)\n  \n Second part", "paragraphs": [] }, { "title": "155", "paragraphs": [ "para_493" ] }, { "title": "156", "paragraphs": [ "para_495" ] }, { "title": "157", "paragraphs": [ "para_497" ] }, { "title": "158", "paragraphs": [ "para_499" ] }, { "title": "159", "paragraphs": [ "para_501" ] }, { "title": "(c)\n  \n Third part", "paragraphs": [] }, { "title": "160", "paragraphs": [ "para_504" ] }, { "title": "161", "paragraphs": [ "para_506" ] }, { "title": "162", "paragraphs": [ "para_508" ] }, { "title": "163", "paragraphs": [ "para_510" ] }, { "title": "164", "paragraphs": [ "para_512" ] }, { "title": "165", "paragraphs": [ "para_514" ] }, { "title": "166", "paragraphs": [ "para_516" ] }, { "title": "(d)\n  \n Fourth part", "paragraphs": [] }, { "title": "167", "paragraphs": [ "para_519" ] }, { "title": "168", "paragraphs": [ "para_521" ] }, { "title": "169", "paragraphs": [ "para_523" ] }, { "title": "170", "paragraphs": [ "para_525" ] }, { "title": "171", "paragraphs": [ "para_527" ] }, { "title": "172", "paragraphs": [ "para_529" ] }, { "title": "173", "paragraphs": [ "para_531" ] }, { "title": "174", "paragraphs": [ "para_533" ] }, { "title": "175", "paragraphs": [ "para_535" ] }, { "title": "176", "paragraphs": [ "para_537" ] }, { "title": "2.\n  \n Findings of the Court", "paragraphs": [] }, { "title": "(a)\n  \n Admissibility and effectiveness of the first ground of appeal", "paragraphs": [] }, { "title": "177", "paragraphs": [ "para_541" ] }, { "title": "178", "paragraphs": [ "para_543" ] }, { "title": "179", "paragraphs": [ "para_545" ] }, { "title": "180", "paragraphs": [ "para_547" ] }, { "title": "181", "paragraphs": [ "para_549" ] }, { "title": "182", "paragraphs": [ "para_551" ] }, { "title": "183", "paragraphs": [ "para_553" ] }, { "title": "(b)\n  \n First part", "paragraphs": [] }, { "title": "184", "paragraphs": [ "para_556" ] }, { "title": "185", "paragraphs": [ "para_558" ] }, { "title": "186", "paragraphs": [ "para_560" ] }, { "title": "187", "paragraphs": [ "para_562" ] }, { "title": "188", "paragraphs": [ "para_564" ] }, { "title": "189", "paragraphs": [ 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"title": "226", "paragraphs": [ "para_643" ] }, { "title": "227", "paragraphs": [ "para_645" ] }, { "title": "228", "paragraphs": [ "para_647" ] }, { "title": "229", "paragraphs": [ "para_649" ] }, { "title": "230", "paragraphs": [ "para_651" ] }, { "title": "231", "paragraphs": [ "para_653" ] }, { "title": "232", "paragraphs": [ "para_655" ] }, { "title": "B.   Second ground of appeal", "paragraphs": [] }, { "title": "1.\n  \n Arguments of the parties", "paragraphs": [] }, { "title": "233", "paragraphs": [ "para_659" ] }, { "title": "234", "paragraphs": [ "para_661" ] }, { "title": "235", "paragraphs": [ "para_663" ] }, { "title": "236", "paragraphs": [ "para_665" ] }, { "title": "237", "paragraphs": [ "para_667" ] }, { "title": "238", "paragraphs": [ "para_669" ] }, { "title": "239", "paragraphs": [ "para_671" ] }, { "title": "(a)\n  \n First part", "paragraphs": [] }, { "title": "240", "paragraphs": [ "para_674" ] }, { "title": "241", "paragraphs": [ "para_676" ] }, { "title": "(1)   First complaint", "paragraphs": [] }, { "title": "242", "paragraphs": [ "para_679" ] }, { "title": "243", "paragraphs": [ "para_681" ] }, { "title": "244", "paragraphs": [ "para_683" ] }, { "title": "(2)   Second complaint", "paragraphs": [] }, { "title": "245", "paragraphs": [ "para_686" ] }, { "title": "246", "paragraphs": [ "para_688" ] }, { "title": "247", "paragraphs": [ "para_690" ] }, { "title": "248", "paragraphs": [ "para_692" ] }, { "title": "249", "paragraphs": [ "para_694" ] }, { "title": "250", "paragraphs": [ "para_696" ] }, { "title": "251", "paragraphs": [ "para_698" ] }, { "title": "(3)   Third complaint", "paragraphs": [] }, { "title": "252", "paragraphs": [ "para_701" ] }, { "title": "253", "paragraphs": [ "para_703" ] }, { "title": "(b)\n  \n Second part", "paragraphs": [] }, { "title": "254", "paragraphs": [ "para_706" ] }, { "title": "255", "paragraphs": [ "para_708" ] }, { "title": "(1)   First complaint", "paragraphs": [] }, { "title": "256", "paragraphs": [ "para_711" ] }, { "title": "257", "paragraphs": [ "para_713" ] }, { "title": "(2)   Second complaint", "paragraphs": [] }, { "title": "258", "paragraphs": [ "para_716" ] }, { "title": "259", "paragraphs": [ "para_718" ] }, { "title": "2.\n  \n Findings of the Court", "paragraphs": [] }, { "title": "260", "paragraphs": [ "para_721" ] }, { "title": "(a)\n  \n General considerations", "paragraphs": [] }, { "title": "261", "paragraphs": [ "para_724" ] }, { "title": "262", "paragraphs": [ "para_726" ] }, { "title": "263", "paragraphs": [ "para_728" ] }, { "title": "264", "paragraphs": [ "para_730" ] }, { "title": "265", "paragraphs": [ "para_732" ] }, { "title": "266", "paragraphs": [ "para_734" ] }, { "title": "267", "paragraphs": [ "para_736" ] }, { "title": "268", "paragraphs": [ "para_738" ] }, { "title": "269", "paragraphs": [ "para_740" ] }, { "title": "270", "paragraphs": [ "para_742" ] }, { "title": "271", "paragraphs": [ "para_744" ] }, { "title": "272", "paragraphs": [ "para_746" ] }, { "title": "273", "paragraphs": [ "para_748" ] }, { "title": "274", "paragraphs": [ "para_750" ] }, { "title": "275", "paragraphs": [ "para_752" ] }, { "title": "276", "paragraphs": [ "para_754" ] }, { "title": "277", "paragraphs": [ "para_756" ] }, { "title": "278", "paragraphs": [ "para_758" ] }, { "title": "279", "paragraphs": [ "para_760" ] }, { "title": "(b)\n  \n First part", "paragraphs": [] }, { "title": "280", "paragraphs": [ "para_763" ] }, { "title": "281", "paragraphs": [ "para_765" ] }, { "title": "282", "paragraphs": [ "para_767" ] }, { "title": "283", "paragraphs": [ "para_769" ] }, { "title": "284", "paragraphs": [ "para_771" ] }, { "title": "285", "paragraphs": [ "para_773" ] }, { "title": "(c)\n  \n Second part", "paragraphs": [] }, { "title": "286", "paragraphs": [ "para_776" ] }, { "title": "287", "paragraphs": [ "para_778" ] }, { "title": "288", "paragraphs": [ "para_780" ] }, { "title": "289", "paragraphs": [ "para_782" ] }, { "title": "290", "paragraphs": [ "para_784" ] }, { "title": "291", "paragraphs": [ "para_786" ] }, { "title": "292", "paragraphs": [ "para_788" ] }, { "title": "293", "paragraphs": [ "para_790" ] }, { "title": "C.   Third ground of appeal", "paragraphs": [] }, { "title": "1.\n  \n Arguments of the parties", "paragraphs": [] }, { "title": "294", "paragraphs": [ "para_794" ] }, { "title": "(a)\n  \n First part", "paragraphs": [] }, { "title": "295", "paragraphs": [ "para_797" ] }, { "title": "296", "paragraphs": [ "para_799" ] }, { "title": "297", "paragraphs": [ "para_801" ] }, { "title": "298", "paragraphs": [ "para_803" ] }, { "title": "299", "paragraphs": [ "para_805" ] }, { "title": "300", "paragraphs": [ "para_807" ] }, { "title": "301", "paragraphs": [ "para_809" ] }, { "title": "302", "paragraphs": [ "para_811" ] }, { "title": "303", "paragraphs": [ "para_813" ] }, { "title": "304", "paragraphs": [ "para_815" ] }, { "title": "305", "paragraphs": [ "para_817" ] }, { "title": "306", "paragraphs": [ "para_819" ] }, { "title": "307", "paragraphs": [ "para_821" ] }, { "title": "308", "paragraphs": [ "para_823" ] }, { "title": "309", "paragraphs": [ "para_825" ] }, { "title": "310", "paragraphs": [ "para_827" ] }, { "title": "(b)\n  \n Second part", "paragraphs": [] }, { "title": "311", "paragraphs": [ "para_830" ] }, { "title": "312", "paragraphs": [ "para_832" ] }, { "title": "313", "paragraphs": [ "para_834" ] }, { "title": "314", "paragraphs": [ "para_836" ] }, { "title": "315", "paragraphs": [ "para_838" ] }, { "title": "316", "paragraphs": [ "para_840" ] }, { "title": "317", "paragraphs": [ "para_842" ] }, { "title": "318", "paragraphs": [ "para_844" ] }, { "title": "319", "paragraphs": [ "para_846" ] }, { "title": "2.\n  \n Findings of the Court", "paragraphs": [] }, { "title": "(a)\n  \n First part", "paragraphs": [] }, { "title": "320", "paragraphs": [ "para_850" ] }, { "title": "321", "paragraphs": [ "para_852" ] }, { "title": "322", "paragraphs": [ "para_854" ] }, { "title": "323", "paragraphs": [ "para_856" ] }, { "title": "324", "paragraphs": [ "para_858" ] }, { "title": "325", "paragraphs": [ "para_860" ] }, { "title": "326", "paragraphs": [ "para_862" ] }, { "title": "327", "paragraphs": [ "para_864" ] }, { "title": "328", "paragraphs": [ "para_866" ] }, { "title": "329", "paragraphs": [ "para_868" ] }, { "title": "330", "paragraphs": [ "para_870" ] }, { "title": "331", "paragraphs": [ "para_872" ] }, { "title": "332", "paragraphs": [ "para_874" ] }, { "title": "333", "paragraphs": [ "para_876" ] }, { "title": "334", "paragraphs": [ "para_878" ] }, { "title": "335", "paragraphs": [ "para_880" ] }, { "title": "336", "paragraphs": [ "para_882" ] }, { "title": "337", "paragraphs": [ "para_884" ] }, { "title": "338", "paragraphs": [ "para_886" ] }, { "title": "339", "paragraphs": [ "para_888" ] }, { "title": "340", "paragraphs": [ "para_890" ] }, { "title": "341", "paragraphs": [ "para_892" ] }, { "title": "(b)\n  \n Second part", "paragraphs": [] }, { "title": "342", "paragraphs": [ "para_895" ] }, { "title": "343", "paragraphs": [ "para_897" ] }, { "title": "344", "paragraphs": [ "para_899" ] }, { "title": "345", "paragraphs": [ "para_901" ] }, { "title": "346", "paragraphs": [ "para_903" ] }, { "title": "347", "paragraphs": [ "para_905" ] }, { "title": "348", "paragraphs": [ "para_907" ] }, { "title": "349", "paragraphs": [ "para_909" ] }, { "title": "D.   Fourth ground of appeal", "paragraphs": [] }, { "title": "1.\n  \n Arguments of the parties", "paragraphs": [] }, { "title": "350", "paragraphs": [ "para_913" ] }, { "title": "351", "paragraphs": [ "para_915" ] }, { "title": "352", "paragraphs": [ "para_917" ] }, { "title": "353", "paragraphs": [ "para_919" ] }, { "title": "354", "paragraphs": [ "para_921" ] }, { "title": "355", "paragraphs": [ "para_923" ] }, { "title": "356", "paragraphs": [ "para_925" ] }, { "title": "357", "paragraphs": [ "para_927" ] }, { "title": "358", "paragraphs": [ "para_929" ] }, { "title": "359", "paragraphs": [ "para_931" ] }, { "title": "2.\n  \n Findings of the Court", "paragraphs": [] }, { "title": "360", "paragraphs": [ "para_934" ] }, { "title": "361", "paragraphs": [ "para_936" ] }, { "title": "362", "paragraphs": [ "para_938" ] }, { "title": "363", "paragraphs": [ "para_940" ] }, { "title": "364", "paragraphs": [ "para_942" ] }, { "title": "365", "paragraphs": [ "para_944" ] }, { "title": "366", "paragraphs": [ "para_946" ] }, { "title": "367", "paragraphs": [ "para_948" ] }, { "title": "368", "paragraphs": [ "para_950" ] }, { "title": "369", "paragraphs": [ "para_952" ] }, { "title": "370", "paragraphs": [ "para_954" ] }, { "title": "371", "paragraphs": [ "para_956" ] }, { "title": "E.   Fifth ground of appeal", "paragraphs": [] }, { "title": "1.\n  \n Arguments of the parties", "paragraphs": [] }, { "title": "372", "paragraphs": [ "para_960" ] }, { "title": "373", "paragraphs": [ "para_962" ] }, { "title": "374", "paragraphs": [ "para_964" ] }, { "title": "375", "paragraphs": [ "para_966" ] }, { "title": "376", "paragraphs": [ "para_968" ] }, { "title": "2.\n  \n Findings of the Court", "paragraphs": [] }, { "title": "377", "paragraphs": [ "para_971" ] }, { "title": "378", "paragraphs": [ "para_973" ] }, { "title": "379", "paragraphs": [ "para_975" ] }, { "title": "380", "paragraphs": [ "para_977" ] }, { "title": "381", "paragraphs": [ "para_979" ] }, { "title": "382", "paragraphs": [ "para_981" ] }, { "title": "383", "paragraphs": [ "para_983" ] }, { "title": "384", "paragraphs": [ "para_985" ] }, { "title": "385", "paragraphs": [ "para_987" ] }, { "title": "386", "paragraphs": [ "para_989" ] }, { "title": "387", "paragraphs": [ "para_991" ] }, { "title": "388", "paragraphs": [ "para_993" ] }, { "title": "389", "paragraphs": [ "para_995" ] }, { "title": "390", "paragraphs": [ "para_997" ] }, { "title": "391", "paragraphs": [ "para_999" ] }, { "title": "F.   Sixth ground of appeal", "paragraphs": [] }, { "title": "1.\n  \n Arguments of the parties", "paragraphs": [] }, { "title": "392", "paragraphs": [ "para_1003" ] }, { "title": "393", "paragraphs": [ "para_1005" ] }, { "title": "394", "paragraphs": [ "para_1007" ] }, { "title": "395", "paragraphs": [ "para_1009" ] }, { "title": "2.\n  \n Findings of the Court", "paragraphs": [] }, { "title": "396", "paragraphs": [ "para_1012" ] }, { "title": "397", "paragraphs": [ "para_1014" ] }, { "title": "398", "paragraphs": [ "para_1016" ] }, { "title": "399", "paragraphs": [ "para_1018" ] }, { "title": "400", "paragraphs": [ "para_1020" ] }, { "title": "401", "paragraphs": [ "para_1022" ] }, { "title": "402", "paragraphs": [ "para_1024" ] }, { "title": "403", "paragraphs": [ "para_1026" ] }, { "title": "404", "paragraphs": [ "para_1028" ] }, { "title": "405", "paragraphs": [ "para_1030" ] }, { "title": "406", "paragraphs": [ "para_1032" ] }, { "title": "407", "paragraphs": [ "para_1034" ] }, { "title": "408", "paragraphs": [ "para_1036" ] }, { "title": "409", "paragraphs": [ "para_1038" ] }, { "title": "410", "paragraphs": [ "para_1040" ] }, { "title": "411", "paragraphs": [ "para_1042" ] }, { "title": "412", "paragraphs": [ "para_1044" ] }, { "title": "413", "paragraphs": [ "para_1046" ] }, { "title": "414", "paragraphs": [ "para_1048" ] }, { "title": "415", "paragraphs": [ "para_1050" ] }, { "title": "416", "paragraphs": [ "para_1052" ] }, { "title": "417", "paragraphs": [ "para_1054" ] }, { "title": "418", "paragraphs": [ "para_1056" ] }, { "title": "419", "paragraphs": [ "para_1058" ] }, { "title": "420", "paragraphs": [ "para_1060" ] }, { "title": "VI.   Costs", "paragraphs": [] }, { "title": "421", "paragraphs": [ "para_1063" ] }, { "title": "422", "paragraphs": [ "para_1065" ] }, { "title": "423", "paragraphs": [ "para_1067" ] }, { "title": "424", "paragraphs": [ "para_1069" ] }, { "title": "425", "paragraphs": [ "para_1071" ] }, { "title": "On those grounds, the Court (Second Chamber) hereby:", "paragraphs": [ "para_1073" ] }, { "title": "Dismisses the appeal;", "paragraphs": [ "para_1075", "para_1076", "para_1077", "para_1078" ] }, { "title": "Jürimäe", "paragraphs": [] }, { "title": "Lenaerts", "paragraphs": [] }, { "title": "Schalin", "paragraphs": [] }, { "title": "Gavalec", "paragraphs": [] }, { "title": "Csehi", "paragraphs": [ "para_1084" ] }, { "title": "A. Calot Escobar", "paragraphs": [] }, { "title": "Registrar", "paragraphs": [] }, { "title": "K. Jürimäe", "paragraphs": [] }, { "title": "President of the Chamber", "paragraphs": [ "para_1089" ] } ], "paragraphs": [ { "text": "62022CJ0738", "paragraph_id": "para_1" }, { "text": "JUDGMENT OF THE COURT (Second Chamber)", "paragraph_id": "para_2" }, { "text": "2 July 2026 (\n *1\n )", "paragraph_id": "para_3" }, { "text": "Table of Contents", "paragraph_id": "para_4" }, { "text": "I. Legal context", "paragraph_id": "para_5" }, { "text": "II. Background to the dispute and the decision at issue", "paragraph_id": "para_6" }, { "text": "A. Factual context", "paragraph_id": "para_7" }, { "text": "B. The procedure before the Commission and the decision at issue", "paragraph_id": "para_8" }, { "text": "1. Tying of the Google Search app", "paragraph_id": "para_9" }, { "text": "2. Tying of the Chrome browser", "paragraph_id": "para_10" }, { "text": "3. Licensing of the Play Store and the Google Search app conditional on the anti-fragmentation obligations in the AFAs", "paragraph_id": "para_11" }, { "text": "4. Payment of a percentage of revenue conditional on there being no pre-installation of competing general search services on a given range of products", "paragraph_id": "para_12" }, { "text": "5. Duration of the restrictions at issue and the fine", "paragraph_id": "para_13" }, { "text": "III. The procedure before the General Court and the judgment under appeal", "paragraph_id": "para_14" }, { "text": "A. First plea in law, alleging that the assessment of market definition and dominance was incorrect", "paragraph_id": "para_15" }, { "text": "B. Second plea in law, relating to the first and second abuses, alleging that the finding that the MADA pre-installation conditions were abusive was incorrect", "paragraph_id": "para_16" }, { "text": "1. Observations of the General Court on contextual matters", "paragraph_id": "para_17" }, { "text": "2. First part, concerning the ‘foreclosure of competition’", "paragraph_id": "para_18" }, { "text": "3. Second part, concerning objective justifications", "paragraph_id": "para_19" }, { "text": "C. Third plea in law, alleging that the finding that the sole pre-installation condition included in the portfolio-based RSAs was abusive was incorrect", "paragraph_id": "para_20" }, { "text": "D. Fourth plea in law, alleging that the finding that it was abusive for the Play Store and Google Search app licences to have been made conditional on compliance with the anti-fragmentation obligations was incorrect", "paragraph_id": "para_21" }, { "text": "1. First part, concerning the restriction of competition", "paragraph_id": "para_22" }, { "text": "2. Second part, concerning objective justifications", "paragraph_id": "para_23" }, { "text": "E. Fifth plea in law", "paragraph_id": "para_24" }, { "text": "F. Sixth plea in law", "paragraph_id": "para_25" }, { "text": "IV. Forms of order sought by the parties to the appeal and the procedure before the Court of Justice", "paragraph_id": "para_26" }, { "text": "V. The appeal", "paragraph_id": "para_27" }, { "text": "A. First ground of appeal", "paragraph_id": "para_28" }, { "text": "1. Arguments of the parties", "paragraph_id": "para_29" }, { "text": "(a) First part", "paragraph_id": "para_30" }, { "text": "(b) Second part", "paragraph_id": "para_31" }, { "text": "(c) Third part", "paragraph_id": "para_32" }, { "text": "(d) Fourth part", "paragraph_id": "para_33" }, { "text": "2. Findings of the Court", "paragraph_id": "para_34" }, { "text": "(a) Admissibility and effectiveness of the first ground of appeal", "paragraph_id": "para_35" }, { "text": "(b) First part", "paragraph_id": "para_36" }, { "text": "(c) Second part", "paragraph_id": "para_37" }, { "text": "(d) Third part", "paragraph_id": "para_38" }, { "text": "(e) Fourth part", "paragraph_id": "para_39" }, { "text": "B. Second ground of appeal", "paragraph_id": "para_40" }, { "text": "1. Arguments of the parties", "paragraph_id": "para_41" }, { "text": "(a) First part", "paragraph_id": "para_42" }, { "text": "(1) First complaint", "paragraph_id": "para_43" }, { "text": "(2) Second complaint", "paragraph_id": "para_44" }, { "text": "(3) Third complaint", "paragraph_id": "para_45" }, { "text": "(b) Second part", "paragraph_id": "para_46" }, { "text": "(1) First complaint", "paragraph_id": "para_47" }, { "text": "(2) Second complaint", "paragraph_id": "para_48" }, { "text": "2. Findings of the Court", "paragraph_id": "para_49" }, { "text": "(a) General considerations", "paragraph_id": "para_50" }, { "text": "(b) First part", "paragraph_id": "para_51" }, { "text": "(c) Second part", "paragraph_id": "para_52" }, { "text": "C. Third ground of appeal", "paragraph_id": "para_53" }, { "text": "1. Arguments of the parties", "paragraph_id": "para_54" }, { "text": "(a) First part", "paragraph_id": "para_55" }, { "text": "(b) Second part", "paragraph_id": "para_56" }, { "text": "2. Findings of the Court", "paragraph_id": "para_57" }, { "text": "(a) First part", "paragraph_id": "para_58" }, { "text": "(b) Second part", "paragraph_id": "para_59" }, { "text": "D. Fourth ground of appeal", "paragraph_id": "para_60" }, { "text": "1. Arguments of the parties", "paragraph_id": "para_61" }, { "text": "2. Findings of the Court", "paragraph_id": "para_62" }, { "text": "E. Fifth ground of appeal", "paragraph_id": "para_63" }, { "text": "1. Arguments of the parties", "paragraph_id": "para_64" }, { "text": "2. Findings of the Court", "paragraph_id": "para_65" }, { "text": "F. Sixth ground of appeal", "paragraph_id": "para_66" }, { "text": "1. Arguments of the parties", "paragraph_id": "para_67" }, { "text": "2. Findings of the Court", "paragraph_id": "para_68" }, { "text": "VI. Costs", "paragraph_id": "para_69" }, { "text": "(Appeal – Competition – Abuse of dominant position – Market for online general search services – Market for the licensing of smart mobile operating systems – Market for online app stores for the Android mobile operating system – Decision finding an infringement of Article 102 TFEU and Article 54 of …", "paragraph_id": "para_70" }, { "text": "In Case C‑738/22 P,", "paragraph_id": "para_71" }, { "text": "APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 30 November 2022,", "paragraph_id": "para_72" }, { "text": "Google LLC , established in Mountain View (United States),", "paragraph_id": "para_73" }, { "text": "Alphabet Inc ., established in Mountain View,", "paragraph_id": "para_74" }, { "text": "represented initially by G. Forwood, J. Killick and N. Levy, avocats, D. Gregory, Barrister-at-Law, and P. Stuart, Barrister-at-Law, A. Komninos, dikigoros, A. Lamadrid de Pablo, abogado, H. Mostyn, Barrister, M. Pickford KC and J. Schindler, Rechtsanwalt, and subsequently by G. Forwood, J. Killick …", "paragraph_id": "para_75" }, { "text": "appellants,", "paragraph_id": "para_76" }, { "text": "the other parties to the proceedings being:", "paragraph_id": "para_77" }, { "text": "European Commission , represented initially by F. Castillo de la Torre, A. Dawes, N. Khan and C. Urraca Caviedes, acting as Agents, and subsequently by F. Castillo de la Torre, A. Dawes and C. Urraca Caviedes, acting as Agents,", "paragraph_id": "para_78" }, { "text": "defendant at first instance,", "paragraph_id": "para_79" }, { "text": "Application Developers Alliance , established in Washington (United States), represented by R. Baena Zapatero, abogado, A. Parr and S. Vaz, Solicitors,", "paragraph_id": "para_80" }, { "text": "Computer & Communications Industry Association , established in Washington, represented by B. Byrne, Solicitor, M. Levitt, avocat, and P. Lugard, advocaat,", "paragraph_id": "para_81" }, { "text": "Gigaset Communications GmbH , established in Bocholt (Germany), represented by J.-F. Bellis, avocat,", "paragraph_id": "para_82" }, { "text": "HMD global Oy , established in Helsinki (Finland),", "paragraph_id": "para_83" }, { "text": "Opera Norway AS , formerly Opera Software AS, established in Oslo (Norway),", "paragraph_id": "para_84" }, { "text": "represented by M. Glader and M. Johansson, advokater,", "paragraph_id": "para_85" }, { "text": "BDZV – Bundesverband Digitalpublisher und Zeitungsverleger eV , formerly Bundesverband Deutscher Zeitungsverleger eV, established in Berlin (Germany), represented by T. Höppner and P. Westerhoff, Rechtsanwälte,", "paragraph_id": "para_86" }, { "text": "Bureau européen des unions de consommateurs (BEUC) , established in Brussels (Belgium), represented by A. Fratini, avvocata,", "paragraph_id": "para_87" }, { "text": "FairSearch AISBL , established in Brussels, represented by K. Missenden and D. Paemen, avocats, and T. Vinje, advocaat,", "paragraph_id": "para_88" }, { "text": "Qwant , established in Paris (France),", "paragraph_id": "para_89" }, { "text": "Seznam.cz, a.s ., established in Prague (Czech Republic), represented by J. Dobrý and M. Felgr, advokáti,", "paragraph_id": "para_90" }, { "text": "Verband Deutscher Zeitschriftenverleger eV , established in Berlin (Germany), represented by T. Höppner and P. Westerhoff, Rechtsanwälte,", "paragraph_id": "para_91" }, { "text": "interveners at first instance,", "paragraph_id": "para_92" }, { "text": "THE COURT (Second Chamber),", "paragraph_id": "para_93" }, { "text": "composed of K. Jürimäe (Rapporteur), President of the Chamber, K. Lenaerts, President of the Court, acting as Judge of the Second Chamber, F. Schalin, M. Gavalec and Z. Csehi, Judges,", "paragraph_id": "para_94" }, { "text": "Advocate General: J. Kokott,", "paragraph_id": "para_95" }, { "text": "Registrar: M. Longar, Administrator,", "paragraph_id": "para_96" }, { "text": "having regard to the written procedure and further to the hearing on 28 January 2025,", "paragraph_id": "para_97" }, { "text": "after hearing the Opinion of the Advocate General at the sitting on 19 June 2025,", "paragraph_id": "para_98" }, { "text": "gives the following", "paragraph_id": "para_99" }, { "text": "Judgment", "paragraph_id": "para_100" }, { "text": "1", "paragraph_id": "para_101" }, { "text": "By their appeal, Google LLC and Alphabet Inc. ask the Court of Justice to set aside the judgment of the General Court of the European Union of 14 September 2022, Google and Alphabet v Commission (Google Android) ( T‑604/18 , the judgment under appeal, EU:T:2022:541 ), by which the General Court:", "paragraph_id": "para_102" }, { "text": "–", "paragraph_id": "para_103" }, { "text": "annulled Articles 1, 3 and 4 of Commission Decision C(2018) 4761 final of 18 July 2018 relating to a proceeding under Article 102 TFEU and Article 54 of the EEA Agreement (Case AT.40099 – Google Android) (‘the decision at issue’) in so far as they concern the fourth element of the single and continu …", "paragraph_id": "para_104" }, { "text": "–", "paragraph_id": "para_105" }, { "text": "set the amount of the fine imposed on Google in Article 2 of the decision at issue for the single and continuous infringement which it committed, as follows from the preceding indent, at EUR 4125000000, for which Alphabet was to be jointly and severally liable in the amount of EUR 1520605895;", "paragraph_id": "para_106" }, { "text": "–", "paragraph_id": "para_107" }, { "text": "dismissed their action as to the remainder.", "paragraph_id": "para_108" }, { "text": "I.   Legal context", "paragraph_id": "para_109" }, { "text": "2", "paragraph_id": "para_110" }, { "text": "Article 102 TFEU provides:", "paragraph_id": "para_111" }, { "text": "‘Any abuse by one or more undertakings of a dominant position within the internal market or in a substantial part of it shall be prohibited as incompatible with the internal market in so far as it may affect trade between Member States.", "paragraph_id": "para_112" }, { "text": "Such abuse may, in particular, consist in:", "paragraph_id": "para_113" }, { "text": "(a)", "paragraph_id": "para_114" }, { "text": "directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions,", "paragraph_id": "para_115" }, { "text": "(b)", "paragraph_id": "para_116" }, { "text": "limiting production, markets or technical development to the prejudice of consumers,", "paragraph_id": "para_117" }, { "text": "(c)", "paragraph_id": "para_118" }, { "text": "applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage,", "paragraph_id": "para_119" }, { "text": "(d)", "paragraph_id": "para_120" }, { "text": "making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts.’", "paragraph_id": "para_121" }, { "text": "3", "paragraph_id": "para_122" }, { "text": "Article 23(2)(a) and (3) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101] and [102 TFEU] ( OJ 2003 L 1, p. 1 ) provides:", "paragraph_id": "para_123" }, { "text": "‘2.   The [European] Commission may by decision impose fines on undertakings and associations of undertakings where, either intentionally or negligently:", "paragraph_id": "para_124" }, { "text": "(a)", "paragraph_id": "para_125" }, { "text": "they infringe Article [101] or Article [102 TFEU]; ...", "paragraph_id": "para_126" }, { "text": "...", "paragraph_id": "para_127" }, { "text": "3.   In fixing the amount of the fine, regard shall be had both to the gravity and to the duration of the infringement.’", "paragraph_id": "para_128" }, { "text": "4", "paragraph_id": "para_129" }, { "text": "Article 31 of that regulation provides:", "paragraph_id": "para_130" }, { "text": "‘The Court of Justice shall have unlimited jurisdiction to review decisions whereby the Commission has fixed a fine or periodic penalty payment. It may cancel, reduce or increase the fine or periodic penalty payment imposed.’", "paragraph_id": "para_131" }, { "text": "II.   Background to the dispute and the decision at issue", "paragraph_id": "para_132" }, { "text": "5", "paragraph_id": "para_133" }, { "text": "The background to the dispute and the content of the decision at issue may be summarised as follows for the purposes of the present appeal.", "paragraph_id": "para_134" }, { "text": "A.   Factual context", "paragraph_id": "para_135" }, { "text": "6", "paragraph_id": "para_136" }, { "text": "Google is an undertaking in the information and communications technology sector specialising in internet-related products and services and operating within the European Economic Area (EEA).", "paragraph_id": "para_137" }, { "text": "7", "paragraph_id": "para_138" }, { "text": "In 2005, in order to take account of the emergence and development of the mobile internet and of the likely change in user behaviour to which that would lead as regards general searches performed online, Google acquired the undertaking that had originally developed the Android operating system (‘OS’) for smart mobile devices. According to the Commission, in July 2018 approximately 80% of smart mobile devices used in Europe and worldwide were running Android.", "paragraph_id": "para_139" }, { "text": "8", "paragraph_id": "para_140" }, { "text": "When Google develops a new version of Android, it publishes the source code online. This allows third parties to download and modify that code to create Android ‘forks’ (a fork being a new OS created from the source code of existing software). The Android source code released under an open-source li …", "paragraph_id": "para_141" }, { "text": "B.   The procedure before the Commission and the decision at issue", "paragraph_id": "para_142" }, { "text": "9", "paragraph_id": "para_143" }, { "text": "On 25 March 2013, FairSearch AISBL, an association of undertakings active in the information and communications technology sector, lodged a complaint with the Commission regarding some of Google’s business practices in the mobile internet. Following that complaint, the Commission sent requests for i …", "paragraph_id": "para_144" }, { "text": "10", "paragraph_id": "para_145" }, { "text": "On 15 April 2015, the Commission initiated a procedure against Google in relation to Android, which led to the adoption of the decision at issue on 18 July 2018. By that decision, the Commission imposed a fine on Google and, in part, on Alphabet for having infringed competition rules by imposing ant …", "paragraph_id": "para_146" }, { "text": "11", "paragraph_id": "para_147" }, { "text": "In that decision, the Commission criticises Google for having included certain conditions in its agreements for the use of Android and of certain proprietary mobile apps and services.", "paragraph_id": "para_148" }, { "text": "12", "paragraph_id": "para_149" }, { "text": "Four sets of contractual restrictions are thus identified in the decision at issue:", "paragraph_id": "para_150" }, { "text": "–", "paragraph_id": "para_151" }, { "text": "two sets of restrictions contained in the Mobile Application Distribution Agreements (‘MADAs’) under which Google required OEMs to pre-install its general search app (Google Search) and browser app (Chrome) in order for them to be able to obtain a licence to use its app store (Play Store);", "paragraph_id": "para_152" }, { "text": "–", "paragraph_id": "para_153" }, { "text": "restrictions contained in the Anti-Fragmentation Agreements (‘AFAs’) under which OEMs that wished to pre-install Google apps could not sell devices running versions of Android that were not approved by Google;", "paragraph_id": "para_154" }, { "text": "–", "paragraph_id": "para_155" }, { "text": "restrictions contained in the RSAs under which Google granted OEMs and MNOs a percentage of its advertising revenue, provided that those manufacturers or operators had agreed not to pre-install a competing general search service on any device within an agreed portfolio (‘portfolio-based RSAs’).", "paragraph_id": "para_156" }, { "text": "13", "paragraph_id": "para_157" }, { "text": "The Commission found that the various contractual restrictions (together, ‘the restrictions at issue’) amounted to four separate infringements of Article 102 TFEU and Article 54 of the Agreement on the European Economic Area of 2 May 1992 and that they also constituted a single and continuous infringement of those provisions, on account of their interdependence and their common objective.", "paragraph_id": "para_158" }, { "text": "1.\n  \n Tying of the Google Search app", "paragraph_id": "para_159" }, { "text": "14", "paragraph_id": "para_160" }, { "text": "Since at least 1 January 2011, Google has tied the Google Search app with the Play Store. The Commission concludes that this conduct constitutes an abuse of Google’s dominant position on the worldwide market (excluding China) for online app stores for the Android OS (‘Android app stores’).", "paragraph_id": "para_161" }, { "text": "15", "paragraph_id": "para_162" }, { "text": "In the first place, the Commission finds, first, that the Play Store and the Google Search app are two distinct products. Second, Google holds a dominant position on the market for the tying product (Play Store), that is to say, the worldwide market (excluding China) for Android app stores. Third, the tying product cannot be obtained without the tied product, namely the Google Search app.", "paragraph_id": "para_163" }, { "text": "16", "paragraph_id": "para_164" }, { "text": "In the second place, the Commission concludes in the decision at issue that the tying of the Google Search app with the Play Store is capable of restricting competition. This tying gives Google a significant competitive advantage that competing providers of general search services cannot offset. It …", "paragraph_id": "para_165" }, { "text": "17", "paragraph_id": "para_166" }, { "text": "In the third place, the Commission finds, in the decision at issue, that Google has not demonstrated the existence of any objective justification for the tying of the Google Search app with the Play Store.", "paragraph_id": "para_167" }, { "text": "2.\n  \n Tying of the Chrome browser", "paragraph_id": "para_168" }, { "text": "18", "paragraph_id": "para_169" }, { "text": "Since 1 August 2012, Google has tied the Chrome browser with the Play Store and the Google Search app. The Commission concludes that this conduct constitutes an abuse of Google’s dominant position on the worldwide market (excluding China) for Android app stores and in the national markets for general search services.", "paragraph_id": "para_170" }, { "text": "19", "paragraph_id": "para_171" }, { "text": "In the first place, the Commission finds, first, that the Chrome browser is a product that is distinct from the Play Store and the Google Search app. Second, Google holds a dominant position on the markets for the tying products (Play Store and the Google Search app), that is to say, the worldwide m …", "paragraph_id": "para_172" }, { "text": "20", "paragraph_id": "para_173" }, { "text": "In the second place, the Commission finds that the tying of the Chrome browser with the Play Store and the Google Search app is capable of restricting competition. This tying gives Google a significant advantage which competing non-OS-specific web browsers designed for mobile use (‘mobile web browse …", "paragraph_id": "para_174" }, { "text": "21", "paragraph_id": "para_175" }, { "text": "In the third place, the Commission concludes that Google has not demonstrated the existence of any objective justification for the tying of the Chrome browser with the Play Store and the Google Search app.", "paragraph_id": "para_176" }, { "text": "3.\n  \n Licensing of the Play Store and the Google Search app conditional on the anti-fragmentation obligations in the AFAs", "paragraph_id": "para_177" }, { "text": "22", "paragraph_id": "para_178" }, { "text": "Since at least 1 January 2011, Google has made the licensing of the Play Store and the Google Search app conditional on hardware manufacturers agreeing to the anti-fragmentation obligations contained in the AFAs.", "paragraph_id": "para_179" }, { "text": "23", "paragraph_id": "para_180" }, { "text": "The Commission concludes that this conduct constitutes an abuse of Google’s dominant position on the worldwide market (excluding China) for Android app stores and in the national markets for general search services.", "paragraph_id": "para_181" }, { "text": "24", "paragraph_id": "para_182" }, { "text": "In the first place, it finds that acceptance of the anti-fragmentation obligations is unrelated to the licensing of the Play Store and the Google Search app. However, those licences cannot be obtained without acceptance of the anti-fragmentation obligations.", "paragraph_id": "para_183" }, { "text": "25", "paragraph_id": "para_184" }, { "text": "In the second place, the Commission states in the decision at issue that the anti-fragmentation obligations are capable of restricting competition. First, Android forks constitute a credible competitive threat to Google. Second, Google actively monitors compliance with, and enforces, the anti-fragme …", "paragraph_id": "para_185" }, { "text": "26", "paragraph_id": "para_186" }, { "text": "In the third place, Google has not demonstrated the existence of any objective justification for making the licensing of the Play Store and the Google Search app conditional on the anti-fragmentation obligations.", "paragraph_id": "para_187" }, { "text": "4.\n  \n Payment of a percentage of revenue conditional on there being no pre-installation of competing general search services on a given range of products", "paragraph_id": "para_188" }, { "text": "27", "paragraph_id": "para_189" }, { "text": "In the period from 1 January 2011 to 31 March 2014, Google granted payments to OEMs and MNOs on condition that they did not pre-install any competing general search service on any device whatsoever within an agreed range of products. In the decision at issue, the Commission describes that conduct as an abuse of Google’s dominant position on the national markets for general search services.", "paragraph_id": "para_190" }, { "text": "28", "paragraph_id": "para_191" }, { "text": "In the first place, according to the Commission, Google’s revenue share payments in respect of a range of products constituted exclusivity payments.", "paragraph_id": "para_192" }, { "text": "29", "paragraph_id": "para_193" }, { "text": "In the second place, the Commission finds that Google’s revenue share payments in respect of a range of products were capable of restricting competition. First, those payments reduced the interest of OEMs and MNOs in pre-installing competing general search services. Second, those payments made access to the national markets for general search services more difficult. Third, the payments deterred innovation.", "paragraph_id": "para_194" }, { "text": "30", "paragraph_id": "para_195" }, { "text": "In the third place, the decision at issue concludes that Google has not demonstrated the existence of any objective justification for the revenue share payments in respect of an agreed range of products.", "paragraph_id": "para_196" }, { "text": "31", "paragraph_id": "para_197" }, { "text": "According to the Commission, the objective of the restrictions at issue was to protect and strengthen Google’s dominant position in relation to general search services and thus its revenues via search advertisements. The common objective and the interdependence of the restrictions at issue led the Commission to classify them as a single and continuous infringement of Article 102 TFEU and Article 54 of the EEA Agreement.", "paragraph_id": "para_198" }, { "text": "5.\n  \n Duration of the restrictions at issue and the fine", "paragraph_id": "para_199" }, { "text": "32", "paragraph_id": "para_200" }, { "text": "So far as the duration of the restrictions at issue is concerned, those linked to the MADAs lasted, with regard to the tying of the Google Search app with the Play Store, from 1 January 2011 to the date of adoption of the decision at issue, and, with regard to the tying of the Chrome browser with th …", "paragraph_id": "para_201" }, { "text": "33", "paragraph_id": "para_202" }, { "text": "In order to penalise those practices, which it considered to be abusive, the Commission imposed on Google a fine of EUR 4342865000, of which EUR 1921666000 jointly and severally with Alphabet. In determining that amount, the Commission took into consideration the value of relevant sales within the E …", "paragraph_id": "para_203" }, { "text": "34", "paragraph_id": "para_204" }, { "text": "The Commission also required Google and Alphabet to bring those practices to an end within 90 days of notification of the decision at issue.", "paragraph_id": "para_205" }, { "text": "III.   The procedure before the General Court and the judgment under appeal", "paragraph_id": "para_206" }, { "text": "35", "paragraph_id": "para_207" }, { "text": "By application lodged at the Registry of the General Court on 9 October 2018, Google and Alphabet brought an action for, principally, the annulment of the decision at issue and, in the alternative, cancellation or reduction of the fine imposed on them by that decision.", "paragraph_id": "para_208" }, { "text": "36", "paragraph_id": "para_209" }, { "text": "By order of the President of the Third Chamber of the General Court of 23 September 2019, Google and Alphabet v Commission ( T‑604/18 , EU:T:2019:743 ), leave to intervene in support of the form of order sought by Google and Alphabet was granted to Application Developers Alliance (‘ADA’), Computer & …", "paragraph_id": "para_210" }, { "text": "37", "paragraph_id": "para_211" }, { "text": "Google and Alphabet relied on six pleas in law in support of their action, alleging (i) that the assessment of market definition and dominance was incorrect; (ii) that the finding that the pre-installation conditions laid down by the MADAs (‘the MADA pre-installation conditions’) were abusive was in …", "paragraph_id": "para_212" }, { "text": "A.   First plea in law, alleging that the assessment of market definition and dominance was incorrect", "paragraph_id": "para_213" }, { "text": "38", "paragraph_id": "para_214" }, { "text": "By the first plea in law of the action, Google and Alphabet complained that the Commission made a number of errors of assessment in the definition of the relevant markets and in the subsequent assessment of the existence of Google’s dominant position on those markets.", "paragraph_id": "para_215" }, { "text": "39", "paragraph_id": "para_216" }, { "text": "In the decision at issue, the Commission identified four types of relevant market: (i) the worldwide market (excluding China) for the licensing of OSs, in the sense of the licensing of operating systems for smart mobile devices; (ii) the worldwide market (excluding China) for Android app stores; (iii) the various national markets, within the EEA, for the provision of general search services; and (iv) the worldwide market for non-OS-specific mobile web browsers.", "paragraph_id": "para_217" }, { "text": "40", "paragraph_id": "para_218" }, { "text": "In that regard, the General Court stated, in paragraphs 125 and 126 of the judgment under appeal, that, for the purposes of the case before it, it had to be held, in the first place, that the Commission had duly established in the decision at issue that Google, being in a position to behave, to an a …", "paragraph_id": "para_219" }, { "text": "41", "paragraph_id": "para_220" }, { "text": "As is apparent from paragraph 129 of the judgment under appeal, it is against that factual background of distinct but interconnected relevant markets and the implementation of an overall strategy aimed essentially, according to the Commission, at securing Google’s dominant position on the national m …", "paragraph_id": "para_221" }, { "text": "B.   Second plea in law, relating to the first and second abuses, alleging that the finding that the MADA pre-installation conditions were abusive was incorrect", "paragraph_id": "para_222" }, { "text": "42", "paragraph_id": "para_223" }, { "text": "By the second plea in law of the action, which was divided into two parts, Google and Alphabet submitted that the Commission had erroneously concluded that the MADA pre-installation conditions, under which, on the one hand, the pre-installation of the Google Search app was a prerequisite for obtaini …", "paragraph_id": "para_224" }, { "text": "1.\n  \n Observations of the General Court on contextual matters", "paragraph_id": "para_225" }, { "text": "43", "paragraph_id": "para_226" }, { "text": "The General Court first of all set out, as a preliminary point, in paragraphs 275 to 316 of the judgment under appeal (i) the conditions for finding that the practices at issue constitute an abuse of a dominant position; (ii) the various factors which the Commission set out in the decision at issue to characterise the exclusionary effects produced by those practices; and (iii) the relationship between those practices.", "paragraph_id": "para_227" }, { "text": "44", "paragraph_id": "para_228" }, { "text": "With regard to those conditions, the General Court recalled, in paragraphs 278 to 280 of the judgment under appeal, by reference to paragraphs 134 to 136 of the judgment of 6 September 2017, Intel v Commission ( C‑413/14 P , EU:C:2017:632 ), that not every exclusionary effect is necessarily detrimen …", "paragraph_id": "para_229" }, { "text": "45", "paragraph_id": "para_230" }, { "text": "In the present case, the practices at issue in the case of the first abuses are instances of tying. In order to assess the abusive nature of such practices, the General Court recalled, in paragraph 284 of the judgment under appeal, the five criteria referred to in paragraph 869 of its judgment of 17 September 2007, Microsoft v Commission ( T‑201/04 , EU:T:2007:289 ), on which the Commission was entitled to rely:", "paragraph_id": "para_231" }, { "text": "–", "paragraph_id": "para_232" }, { "text": "first, the tying and tied products are two separate products;", "paragraph_id": "para_233" }, { "text": "–", "paragraph_id": "para_234" }, { "text": "second, the undertaking concerned is dominant in the market for the tying product;", "paragraph_id": "para_235" }, { "text": "–", "paragraph_id": "para_236" }, { "text": "third, that undertaking does not give customers a choice to obtain the tying product without the tied product;", "paragraph_id": "para_237" }, { "text": "–", "paragraph_id": "para_238" }, { "text": "fourth, the practice in question ‘forecloses competition’", "paragraph_id": "para_239" }, { "text": "–", "paragraph_id": "para_240" }, { "text": "fifth, that practice is not objectively justified.", "paragraph_id": "para_241" }, { "text": "46", "paragraph_id": "para_242" }, { "text": "With regard to the fourth criterion, the General Court found, in paragraph 295 of the judgment under appeal, that the Commission had correctly found, as it had in the decision which gave rise to the judgment of the General Court of 17 September 2007, Microsoft v Commission ( T‑201/04 , EU:T:2007:289 …", "paragraph_id": "para_243" }, { "text": "47", "paragraph_id": "para_244" }, { "text": "However, the General Court noted, in paragraph 297 of the judgment under appeal, that it is not a question of the Commission carrying out a prospective analysis which would be based on effects that will arise in the light of assumptions that cannot yet be verified in practice, as might be the case in other circumstances, and referred in that regard to the judgment of 30 January 2020, Generics (UK) and Others ( C‑307/18 , EU:C:2020:52 , paragraph  145 ).", "paragraph_id": "para_245" }, { "text": "48", "paragraph_id": "para_246" }, { "text": "In paragraph 299 of the judgment under appeal, the General Court concluded its preliminary remarks in relation to the applicable concepts by finding, first of all, that the difference between the ‘restriction of competition’ and the ‘capacity to restrict competition’ has no bearing on the establishm …", "paragraph_id": "para_247" }, { "text": "49", "paragraph_id": "para_248" }, { "text": "The General Court went on to state, in paragraph 300 of that judgment, that the Commission had, in the decision at issue, found that the first abuses consisted of two tying arrangements. These were in the form of the MADA pre-installation conditions, which OEMs and MNOs wishing to be able to market devices with all Google Mobile Services (‘the GMS suite’) were required to accept. Thus:", "paragraph_id": "para_249" }, { "text": "–", "paragraph_id": "para_250" }, { "text": "in the first instance of tying, in which the Google Search app was tied with the Play Store, Google had abused its dominant position on the worldwide market (excluding China) for Android app stores from 1 January 2011 to the date of adoption of the decision at issue (recitals 752 and 1009 of the decision at issue);", "paragraph_id": "para_251" }, { "text": "–", "paragraph_id": "para_252" }, { "text": "in the second instance of tying, in which the Chrome browser was tied with the Google Search app and the Play Store, Google had abused its dominant positions on the worldwide market (excluding China) for Android app stores and in the national markets within the EEA for general search services from 1 August 2012 to the date of adoption of the decision at issue (recitals 753 and 1010 of the decision at issue).", "paragraph_id": "para_253" }, { "text": "50", "paragraph_id": "para_254" }, { "text": "The General Court noted, lastly, in paragraph 301 of that judgment, that the arguments put forward by Google and Alphabet in the context of the second plea related mainly to the matters set out in the decision at issue in relation to the fourth and fifth criteria of the judgment of the General Court …", "paragraph_id": "para_255" }, { "text": "2.\n  \n First part, concerning the ‘foreclosure of competition’", "paragraph_id": "para_256" }, { "text": "51", "paragraph_id": "para_257" }, { "text": "In support of the first part of the second plea, Google and Alphabet submitted that the Commission had failed to demonstrate in the decision at issue that the MADA pre-installation conditions were likely to foreclose competition.", "paragraph_id": "para_258" }, { "text": "52", "paragraph_id": "para_259" }, { "text": "Google and Alphabet put forward five complaints in support of their arguments and criticised the decision at issue in so far as, first, it did not establish that the pre-installation conditions created a ‘status quo bias’; second, it ignored the fact that the MADAs left OEMs free to pre-install riva …", "paragraph_id": "para_260" }, { "text": "53", "paragraph_id": "para_261" }, { "text": "As regards the first complaint, relating to the ‘status quo bias’ generated by the pre-installation conditions, the General Court made two preliminary observations.", "paragraph_id": "para_262" }, { "text": "54", "paragraph_id": "para_263" }, { "text": "The first of these concerns the lack of practical relevance of the proposed distinction between the concepts of ‘pre-installation’ and ‘default setting’, Google and Alphabet having complained that the Commission had failed to make a distinction or apply a weighting as between those concepts in terms of what each of them would cover.", "paragraph_id": "para_264" }, { "text": "55", "paragraph_id": "para_265" }, { "text": "After examining the evidence from Google and Alphabet, the General Court found, in paragraph 349 of the judgment under appeal, that, given the contractual context of the documents relied on, namely that of the MADA pre-installation conditions, Google and Alphabet’s arguments as to the need to make s …", "paragraph_id": "para_266" }, { "text": "56", "paragraph_id": "para_267" }, { "text": "Moreover, when examining evidence from third parties, the General Court noted, in paragraph 356 of that judgment, that there was a certain consensus among the OEMs that premium placement or default setting, or a combination of those techniques, facilitates the usage of the apps that benefit from it. …", "paragraph_id": "para_268" }, { "text": "57", "paragraph_id": "para_269" }, { "text": "The second preliminary observation concerns the quantitative importance of the pre-installation conditions. In that regard, the General Court noted, in paragraphs 336 and 337 of the judgment under appeal, that the pre-installation of the Google Search app and Chrome browser, coupled in the case of t …", "paragraph_id": "para_270" }, { "text": "58", "paragraph_id": "para_271" }, { "text": "In the light of those preliminary observations, the General Court examined the evidence used, and the comparisons made, by the Commission for the purposes of establishing whether there was a status quo bias, the relevance and use of which were criticised by Google and Alphabet. The General Court con …", "paragraph_id": "para_272" }, { "text": "59", "paragraph_id": "para_273" }, { "text": "As regards the second complaint, Google and Alphabet essentially claimed that the pre-installation conditions did not prevent OEMs from pre-installing competing general search services and browsers on Google Android devices sold in the EEA in the same way as the Google Search app and Chrome browser were pre-installed.", "paragraph_id": "para_274" }, { "text": "60", "paragraph_id": "para_275" }, { "text": "In that respect, the General Court noted, as a preliminary point in paragraphs 425 and 426 of the judgment under appeal, that the Commission did not dispute this in the decision at issue. Rather, that decision states, on the one hand, that the MADAs ‘prevent’ OEMs from pre-installing such apps exclu …", "paragraph_id": "para_276" }, { "text": "61", "paragraph_id": "para_277" }, { "text": "In that context, the General Court considered, in paragraph 427 of that judgment, that, in view of the market shares and their evolution from 2011 for the Google Search app and from 2012 for the Chrome browser to the date of adoption of the decision at issue, the debate on the options available for …", "paragraph_id": "para_278" }, { "text": "62", "paragraph_id": "para_279" }, { "text": "So far as the Google Search app is concerned, the General Court concluded, in paragraph 436 of that judgment, that, contrary to the assertions of Google and Alphabet, competing general search service providers had not been able to offset the competitive advantage conferred by the pre-installation co …", "paragraph_id": "para_280" }, { "text": "63", "paragraph_id": "para_281" }, { "text": "Nevertheless, the General Court observed, in paragraphs 449 and 450 of that judgment, that, between 2011 and 2016, more than 50% of Google Android devices sold in the EEA were covered by RSAs concluded with Google, whether portfolio-based or device-based, all of which required the Google Search app …", "paragraph_id": "para_282" }, { "text": "64", "paragraph_id": "para_283" }, { "text": "According to the findings of the General Court in paragraph 451 of the judgment under appeal, that observation serves to illustrate the complementarity of Google’s various practices and necessarily means that the combined effects of the MADAs and RSAs must be taken into account. The result of the RS …", "paragraph_id": "para_284" }, { "text": "65", "paragraph_id": "para_285" }, { "text": "Furthermore, in paragraph 464 of that judgment, the General Court noted that the question whether a competing browser could be set as default was irrelevant. Google and Alphabet did not, moreover, dispute the theoretical nature of that question in view of the combined effects of the MADAs and AFAs. …", "paragraph_id": "para_286" }, { "text": "66", "paragraph_id": "para_287" }, { "text": "Next, the General Court examined the arguments of Google and Alphabet concerning the aspects of the reasoning relating to OEMs’ interest in pre-installing competing apps; to the share of potential revenues that OEMs would derive from one or more general search apps in addition to the Google Search a …", "paragraph_id": "para_288" }, { "text": "67", "paragraph_id": "para_289" }, { "text": "As regards the third complaint, Google and Alphabet submitted that Google’s competitors could offset the tendency for the situation to be frozen as a result of the MADA pre-installation conditions by relying on the behaviour of users, who can download their apps or access their general search service via the browser.", "paragraph_id": "para_290" }, { "text": "68", "paragraph_id": "para_291" }, { "text": "As to the possibility of downloading competing apps, the General Court concluded, in paragraph 557 of the judgment under appeal, that even though general search or browser apps can readily be downloaded free of charge, examination of the decision at issue showed that they are not downloaded in practice, or in any event are downloaded for an insufficient proportion of the devices concerned.", "paragraph_id": "para_292" }, { "text": "69", "paragraph_id": "para_293" }, { "text": "As regards access to a competing general search service via the browser, the General Court found, in paragraphs 561 and 562 of the judgment under appeal, that the setting of a competing general search service as the default in mobile web browsers on Google Android devices could not be compared in re …", "paragraph_id": "para_294" }, { "text": "70", "paragraph_id": "para_295" }, { "text": "As regards the fourth complaint, concerning the failure to show a connection between Google’s shares of general search and browsing requests and the pre-installation of the Google Search app and Chrome browser, the General Court stated, in the first place, in paragraph 571 of that judgment, that the …", "paragraph_id": "para_296" }, { "text": "71", "paragraph_id": "para_297" }, { "text": "In the second place, as regards the factor that is the quality and performance of the Chrome browser and the Google Search app, the General Court held, in paragraph 575 of that judgment, that in a situation such as this, the Commission was not required to determine precisely whether those usage shar …", "paragraph_id": "para_298" }, { "text": "72", "paragraph_id": "para_299" }, { "text": "In the third place, the General Court noted, in paragraphs 579 and 582 of the judgment under appeal, that the Commission had stated in the decision at issue that such a quality advantage did not seem to be apparent from the ratings given to competing services in the Play Store. However, those rating …", "paragraph_id": "para_300" }, { "text": "73", "paragraph_id": "para_301" }, { "text": "The General Court concluded from those points, in paragraph 583 of that judgment, that, in view of the tendency to freeze the situation associated with the MADA pre-installation conditions and in the absence of proof of the precise impact of the superior quality claimed by Google and Alphabet in respect of Google’s general search and browser apps, the Commission had correctly considered that Google’s usage shares confirmed the ‘status quo bias’ linked to pre-installation.", "paragraph_id": "para_302" }, { "text": "74", "paragraph_id": "para_303" }, { "text": "As regards the fifth complaint, Google and Alphabet submit that the decision at issue fails to assess whether the MADA pre-installation conditions were capable of restricting competition that would have existed in their absence, having regard to their full economic and legal context. The MADA pre-installation conditions were a part of the free licensing model developed for the Android OS and therefore could not be reviewed in isolation.", "paragraph_id": "para_304" }, { "text": "75", "paragraph_id": "para_305" }, { "text": "The General Court nevertheless found, in paragraph 589 of the judgment under appeal, that the line of argument developed by Google and Alphabet in support of that complaint did not reflect the content of the decision at issue. The abusive conduct described in that decision did not relate to the deve …", "paragraph_id": "para_306" }, { "text": "3.\n  \n Second part, concerning objective justifications", "paragraph_id": "para_307" }, { "text": "76", "paragraph_id": "para_308" }, { "text": "By the second part of the second plea, Google and Alphabet submitted that the MADA pre-installation conditions are objectively justified because they enable Google to provide the Android OS free of charge by ensuring that the revenue-generating apps, namely the Google Search app and Chrome browser, …", "paragraph_id": "para_309" }, { "text": "77", "paragraph_id": "para_310" }, { "text": "In the first place, the General Court held, in paragraph 614 of the judgment under appeal, that Google and Alphabet had not established that the MADA pre-installation conditions were objectively justified in the sense that, by ensuring that the Google Search app and Chrome browser would be pre-installed on Google Android devices, they had enabled Google to recoup the expenditure incurred in respect of the development and maintenance of the Android OS.", "paragraph_id": "para_311" }, { "text": "78", "paragraph_id": "para_312" }, { "text": "In the second place, as to the arguments of Google and Alphabet that, first, the MADA pre-installation conditions had allowed Google to offer the Play Store free of charge, because its value to OEMs and users correlated to the value to Google of the promotion by those OEMs of its general search serv …", "paragraph_id": "para_313" }, { "text": "79", "paragraph_id": "para_314" }, { "text": "It concluded, in paragraph 619 of the judgment under appeal, that the second part concerning objective justifications for pre-installation therefore had to be rejected, along with the second plea in law in its entirety, by which it was alleged that the finding that the MADA pre-installation conditions were abusive was incorrect.", "paragraph_id": "para_315" }, { "text": "C.   Third plea in law, alleging that the finding that the sole pre-installation condition included in the portfolio-based RSAs was abusive was incorrect", "paragraph_id": "para_316" }, { "text": "80", "paragraph_id": "para_317" }, { "text": "By the third plea in law of the action, Google and Alphabet submitted that the Commission had erred in concluding that certain provisions included in the portfolio-based RSAs were abusive.", "paragraph_id": "para_318" }, { "text": "81", "paragraph_id": "para_319" }, { "text": "In paragraphs 657, 660 and 662 of the judgment under appeal, the General Court ruled that Google and Alphabet were not justified in claiming that the Commission had made an error of assessment when it found that the payments in question were exclusivity payments and that the complaint alleging a failure to state reasons had to be rejected as being unfounded.", "paragraph_id": "para_320" }, { "text": "82", "paragraph_id": "para_321" }, { "text": "However, it held, in paragraph 698 of that judgment, that it followed from the analysis of the coverage of portfolio-based RSAs that this had been incorrectly described as ‘significant’ in recital 1286 of the decision at issue. In paragraph 798 of that judgment, the General Court, moreover, identifi …", "paragraph_id": "para_322" }, { "text": "83", "paragraph_id": "para_323" }, { "text": "As a result of the Commission’s errors of reasoning, the General Court held, in paragraphs 800 to 802 of the judgment under appeal, that the conclusion that the portfolio-based RSAs were abusive could not be considered sufficiently established and that the decision at issue had to be annulled in so far as it considered the portfolio-based RSAs in themselves to have constituted an abuse.", "paragraph_id": "para_324" }, { "text": "D.   Fourth plea in law, alleging that the finding that it was abusive for the Play Store and Google Search app licences to have been made conditional on compliance with the anti-fragmentation obligations was incorrect", "paragraph_id": "para_325" }, { "text": "84", "paragraph_id": "para_326" }, { "text": "By the fourth plea in law of the action, which was divided into two parts, Google and Alphabet disputed the notion that their practice of making the grant of licences for the Play Store and the Google Search app conditional, in the context of the MADAs, on acceptance of the anti-fragmentation obligations could be characterised as an abuse of a dominant position on the markets for Android app stores and for general search services.", "paragraph_id": "para_327" }, { "text": "85", "paragraph_id": "para_328" }, { "text": "In preliminary observations, the General Court clarified the scope of the second abuse identified in the decision at issue. It thus stated, in paragraphs 805 to 807 of the judgment under appeal, that Google had required OEMs wishing to be able to market smart mobile devices on which the Play Store a …", "paragraph_id": "para_329" }, { "text": "86", "paragraph_id": "para_330" }, { "text": "While, admittedly, those anti-fragmentation obligations apply to all mobile devices marketed by every OEM that has entered into an AFA, if those devices run the Android OS or an Android fork, the General Court made clear, in paragraph 810 of the judgment under appeal, that the AFAs were considered a …", "paragraph_id": "para_331" }, { "text": "87", "paragraph_id": "para_332" }, { "text": "In the first part of the fourth plea relied on before the General Court, Google and Alphabet disputed the Commission’s findings to the effect that the practice at issue was restrictive of competition. In the second part of that plea, they submitted that Google’s conduct was, in any event, objectively justified.", "paragraph_id": "para_333" }, { "text": "1.\n  \n First part, concerning the restriction of competition", "paragraph_id": "para_334" }, { "text": "88", "paragraph_id": "para_335" }, { "text": "The General Court found, in paragraph 828 of the judgment under appeal, that ‘the Commission criticises Google for making the licensing of the Play Store and [the] Google Search [app] conditional on a set of obligations that restrict the freedom of OEMs wishing to obtain those licences, specifically …", "paragraph_id": "para_336" }, { "text": "89", "paragraph_id": "para_337" }, { "text": "As regards, first, the material existence of the practice considered by the Commission to constitute the second abuse, the General Court held, in paragraph 834 of the judgment under appeal, that the existence of that practice, admitted by Google and Alphabet, had been established and that it had actually been implemented, from the inception of the Android OS.", "paragraph_id": "para_338" }, { "text": "90", "paragraph_id": "para_339" }, { "text": "Second, concerning the anticompetitive nature of the objectives pursued, the General Court found, in the first place, in paragraphs 837 to 841 of the judgment under appeal, that it was apparent from the internal documents mentioned in the decision at issue that the anti-fragmentation obligations had …", "paragraph_id": "para_340" }, { "text": "91", "paragraph_id": "para_341" }, { "text": "On the basis of that finding, the General Court went on to examine, in the second place, whether Google and Alphabet were justified in maintaining that the Commission had not sufficiently established in the decision at issue that the practice in question was capable of restricting competition. It th …", "paragraph_id": "para_342" }, { "text": "92", "paragraph_id": "para_343" }, { "text": "In that context, it found, in paragraph 849 of that judgment, that it had to be regarded as having been established that, during the period of the infringement, the largest economic operators capable of offering a commercial market to developers of non-compatible Android forks were prevented from doing so by the AFAs.", "paragraph_id": "para_344" }, { "text": "93", "paragraph_id": "para_345" }, { "text": "In that regard, it rejected, in paragraph 850 of that judgment, the argument that the Commission had misinterpreted the failure of the non-compatible Android fork which had been developed by Amazon.com, Inc., namely Fire OS, that failure having been due to various factors, including, according to Go …", "paragraph_id": "para_346" }, { "text": "94", "paragraph_id": "para_347" }, { "text": "The General Court also held, in paragraph 855 of the judgment under appeal, that the commercial policy adopted by Google in respect of the availability of its proprietary APIs had to be taken into consideration, as a contextual element, in assessing the effect of the market restrictions put in place …", "paragraph_id": "para_348" }, { "text": "95", "paragraph_id": "para_349" }, { "text": "On the basis of the examination of the second plea, the General Court held, in paragraph 856 of the judgment under appeal, that OEMs wishing to avail of Google’s proprietary APIs were required to enter into MADAs, which presupposed prior acceptance of the terms of the AFAs. The General Court conclud …", "paragraph_id": "para_350" }, { "text": "96", "paragraph_id": "para_351" }, { "text": "By contrast, since the Commission found that the second abuse consisted in the application of all the technical standards defined in the CDD to devices on which the GMS suite was not installed, and carried out an overall assessment of the effects of the restriction of competition caused by the pract …", "paragraph_id": "para_352" }, { "text": "97", "paragraph_id": "para_353" }, { "text": "Following its analysis, the General Court found that Google and Alphabet had not established that non-compatible Android forks could not in any event have constituted a competitive threat to them.", "paragraph_id": "para_354" }, { "text": "2.\n  \n Second part, concerning objective justifications", "paragraph_id": "para_355" }, { "text": "98", "paragraph_id": "para_356" }, { "text": "In paragraph 866 of the judgment under appeal, the General Court noted that the Commission had concluded, in the decision at issue, that none of the objective justifications put forward by Google and Alphabet could be accepted.", "paragraph_id": "para_357" }, { "text": "99", "paragraph_id": "para_358" }, { "text": "As regards, first, the need to protect compatibility within the Android ecosystem and to prevent fragmentation – that is to say, the proliferation of mutually incompatible platforms – the General Court found, first of all, in paragraph 878 of the judgment under appeal, that the Commission had not ta …", "paragraph_id": "para_359" }, { "text": "100", "paragraph_id": "para_360" }, { "text": "It follows, according to the General Court’s findings in paragraph 878 of the judgment under appeal, that the justification put forward by Google and Alphabet in relation to the need to ensure compatibility within the Android ecosystem was unrelated to the second abuse and, therefore, irrelevant. Ne …", "paragraph_id": "para_361" }, { "text": "101", "paragraph_id": "para_362" }, { "text": "As regards, second, the alleged need by Google and Alphabet to protect their reputation, the General Court found, in paragraph 883 of the judgment under appeal, that they had merely argued that the measures envisaged by the Commission to eliminate any confusion as to the commercial origin of devices running Android-compatible forks (such as, for example, registration of trade marks that would reserve the name ‘Android’ for them) were insufficient.", "paragraph_id": "para_363" }, { "text": "102", "paragraph_id": "para_364" }, { "text": "According to the General Court, Google and Alphabet did not adduce any detailed evidence in support of that claim. It could not, therefore, be established that the defence of their intellectual property rights for the purpose of protecting their reputation by prohibiting, for example, the use of the …", "paragraph_id": "para_365" }, { "text": "103", "paragraph_id": "para_366" }, { "text": "As regards, third, the need for Google to eliminate the windfall effects of its technology being made available to third parties, the General Court stated, in essence, in paragraph 886 of the judgment under appeal, that that availability was inherent in the choice made by Google to disclose the Android source code.", "paragraph_id": "para_367" }, { "text": "104", "paragraph_id": "para_368" }, { "text": "As regards, fourth, the argument of Google and Alphabet relating to the failure to weigh the procompetitive effects of the AFAs against their anticompetitive effects, the General Court found that there was no relationship of necessity between the exclusion of non-compatible Android forks, on the one …", "paragraph_id": "para_369" }, { "text": "105", "paragraph_id": "para_370" }, { "text": "The General Court considered, in concluding its examination of the fourth plea, that the anticompetitive nature of the foreclosure of non-compatible Android forks by means of the AFAs had to be regarded as being established. Contrary to what was claimed by Google and Alphabet, the General Court foun …", "paragraph_id": "para_371" }, { "text": "E.   Fifth plea in law", "paragraph_id": "para_372" }, { "text": "106", "paragraph_id": "para_373" }, { "text": "By the fifth plea in law of the action, which is divided into two parts, Google and Alphabet submitted that the Commission had infringed their rights of defence by failing to respect, first, their right to be heard and, second, their right of access to the file. They argued that those procedural irregularities invalidated the findings in the decision at issue and justified its annulment.", "paragraph_id": "para_374" }, { "text": "107", "paragraph_id": "para_375" }, { "text": "By the second part of the fifth plea, which the General Court examined first, Google and Alphabet complained, in essence, that the Commission had provided them with notes of meetings with third parties that had not enabled them to understand the substance of the discussions held and the nature of the information provided in relation to the matters discussed during those meetings or, therefore, properly to assert their rights of defence in that regard.", "paragraph_id": "para_376" }, { "text": "108", "paragraph_id": "para_377" }, { "text": "While the General Court concluded, in paragraph 932 of the judgment under appeal, that a good number of the notes provided by the Commission had been too late and too cursory to be capable of constituting the record of an interview, within the meaning of Regulation No 1/2003, it nevertheless stated, …", "paragraph_id": "para_378" }, { "text": "109", "paragraph_id": "para_379" }, { "text": "By the first part of the fifth plea, Google and Alphabet submitted that, instead of sending them letters of facts, the Commission should have adopted one or more supplementary statements of objections and thus again afforded them the right to a hearing.", "paragraph_id": "para_380" }, { "text": "110", "paragraph_id": "para_381" }, { "text": "However, the General Court found, in paragraphs 966 to 969 of the judgment under appeal, that, in this case, Google and Alphabet had stated in their response to the statement of objections that they declined their right to a hearing. Accordingly, the General Court ruled, in paragraph 971 of the judg …", "paragraph_id": "para_382" }, { "text": "111", "paragraph_id": "para_383" }, { "text": "By contrast, the General Court observed, in paragraph 976 of that judgment, that the Commission had subsequently sent two letters of facts to Google and to Alphabet, one on 31 August 2017 and the other on 11 April 2018. While Google and Alphabet had the opportunity to make written submissions, the C …", "paragraph_id": "para_384" }, { "text": "112", "paragraph_id": "para_385" }, { "text": "In that regard, the General Court found, in paragraphs 981 and 982 of the judgment under appeal, that although those letters did not formally add any objection to those set out in the statement of objections, they substantially supplemented the substance and scope of the objection relating to the ab …", "paragraph_id": "para_386" }, { "text": "113", "paragraph_id": "para_387" }, { "text": "The General Court inferred from this, in paragraphs 995 and 996 of the judgment under appeal, that, by communicating only at the stage of the second letter of facts the data which it intended to use to conduct the AEC test, the Commission had to be regarded as having substantially altered the conten …", "paragraph_id": "para_388" }, { "text": "114", "paragraph_id": "para_389" }, { "text": "By sending two letters of facts, instead of a supplementary statement of objections, and by not granting an oral hearing on the observations submitted in response to those two letters of facts, the Commission had circumvented the right of Google and Alphabet to be able to develop their arguments on those observations orally, and had infringed their rights of defence.", "paragraph_id": "para_390" }, { "text": "115", "paragraph_id": "para_391" }, { "text": "In the light of those considerations, the General Court upheld the first part of the fifth plea in law of the action in paragraph 1005 of the judgment under appeal and annulled the decision at issue in so far as it characterised the portfolio-based RSAs as abusive, thereby confirming the finding that followed its examination of the third plea in law of the action.", "paragraph_id": "para_392" }, { "text": "F.   Sixth plea in law", "paragraph_id": "para_393" }, { "text": "116", "paragraph_id": "para_394" }, { "text": "After having examined the first five pleas in law of the action, the General Court considered it necessary to assess the consequences for the decision at issue of the conclusions drawn. In so far as those consequences affected the fine, it considered, in paragraph 1009 of the judgment under appeal, …", "paragraph_id": "para_395" }, { "text": "117", "paragraph_id": "para_396" }, { "text": "By the sixth plea in law of the action, which was in three parts, Google and Alphabet observed that even if, contrary to the arguments put forward in the first five pleas, the Court were to uphold the findings of the decision at issue as to the existence of an infringement of Article 102 TFEU, three errors nevertheless required that the fine be cancelled or substantially reduced.", "paragraph_id": "para_397" }, { "text": "118", "paragraph_id": "para_398" }, { "text": "In that context, Google and Alphabet contended, first, that the infringement had not been committed either intentionally or negligently; second, that the decision at issue breached the principle of proportionality; and, third, that it contained important errors of calculation in the light of the Com …", "paragraph_id": "para_399" }, { "text": "119", "paragraph_id": "para_400" }, { "text": "First of all, the General Court drew a series of conclusions concerning the infringement following its examination of the first five pleas of the action. In paragraph 1015 of the judgment under appeal, it found that, as was apparent from the examination of the first, second and fourth pleas, as rega …", "paragraph_id": "para_401" }, { "text": "120", "paragraph_id": "para_402" }, { "text": "In paragraph 1015, it nevertheless found that it was apparent from the examination of the third plea and the first part of the fifth plea of the action that, in so far as the Commission had found that the fourth separate abuse in the decision at issue constituted an abuse of a dominant position, within the meaning of Article 102 TFEU, the Commission had infringed Google and Alphabet’s rights of defence and vitiated the decision at issue by a number of errors of assessment.", "paragraph_id": "para_403" }, { "text": "121", "paragraph_id": "para_404" }, { "text": "It therefore annulled, in paragraph 1016 of the judgment under appeal, Articles 1, 3 and 4 of the decision at issue, in so far only as it was declared, in Article 1, that Google and Alphabet had committed a single and continuous infringement of Article 102 TFEU consisting of four separate abuses, th …", "paragraph_id": "para_405" }, { "text": "122", "paragraph_id": "para_406" }, { "text": "The General Court found, however, in paragraph 1018 of that judgment, that, irrespective of the merits of their characterisation in the light of Article 102 TFEU, the portfolio-based RSAs had been correctly taken into consideration in the decision at issue – as indeed, moreover, had the device-based …", "paragraph_id": "para_407" }, { "text": "123", "paragraph_id": "para_408" }, { "text": "In that regard, the General Court noted, in particular, in paragraph 1019 of that judgment that, irrespective of the characterisation of the RSAs in terms of competition law, the combined effects of the practices established by Google had given it the benefit, as regards the Google Search app, of ex …", "paragraph_id": "para_409" }, { "text": "124", "paragraph_id": "para_410" }, { "text": "In addition, the MADAs provided that devices equipped with the GMS suite were required to comply with the technical compatibility standards contained in the CDD, which were, moreover, applicable to OEMs, for all of their devices with an Android-based OS, under the AFAs, the conclusion of which was a …", "paragraph_id": "para_411" }, { "text": "125", "paragraph_id": "para_412" }, { "text": "The General Court thus found, in paragraph 1021 of the judgment under appeal, that those points, which were regarded as facts that were relevant to the assessment of the abusive nature of the conduct alleged against Google, established that there was a link between the first aspect of the single and …", "paragraph_id": "para_413" }, { "text": "126", "paragraph_id": "para_414" }, { "text": "According to the General Court, examination of the first, second and fourth pleas in law of the action also showed that the first and second restrictions at issue formed part of an overall strategy. On the basis of that finding, the Commission was justified in taking the view that Google’s conduct, …", "paragraph_id": "para_415" }, { "text": "127", "paragraph_id": "para_416" }, { "text": "On the basis of those considerations, and in accordance with the request made by Google and Alphabet to that effect, the General Court then proceeded to rule on the amount of the fine, pursuant to the unlimited jurisdiction conferred on it by Article 261 TFEU and Article 31 of Regulation No 1/2003.", "paragraph_id": "para_417" }, { "text": "128", "paragraph_id": "para_418" }, { "text": "In that regard, the General Court found, first of all, in paragraph 1051 of the judgment under appeal, that the infringement had been committed intentionally, which had to be taken into account in determining the amount of the fine. Next, the General Court considered the extent to which the gravity and duration of the infringement were required to be taken into consideration.", "paragraph_id": "para_419" }, { "text": "129", "paragraph_id": "para_420" }, { "text": "As regards gravity, the General Court considered it appropriate, first, in paragraph 1060 of the judgment under appeal, to take account of the value of sales made by Google during the last year of its full participation in the infringement and, second, in paragraph 1066 of that judgment, not to excl …", "paragraph_id": "para_421" }, { "text": "130", "paragraph_id": "para_422" }, { "text": "So far as concerns the duration of the infringement, in paragraph 1085 of the judgment under appeal, the General Court also rejected the Commission’s choice in using a single overall multiplier (recital 1461 of the decision at issue). According to the General Court, it was more appropriate in this c …", "paragraph_id": "para_423" }, { "text": "131", "paragraph_id": "para_424" }, { "text": "In paragraph 1086 of the judgment under appeal, the General Court therefore used a different technique rather than the arithmetical and linear technique defined by the Commission pursuant to the general methodology set out in the Guidelines on the method of setting fines. According to the General Co …", "paragraph_id": "para_425" }, { "text": "132", "paragraph_id": "para_426" }, { "text": "Thus, in paragraphs 1087 and 1088 of that judgment, the General Court, first, took into consideration the complementarity of the first abuses and, second, distinguished several periods in order to take particular account of the intensity of the anticompetitive conduct over time and of the other factual elements surrounding that conduct.", "paragraph_id": "para_427" }, { "text": "133", "paragraph_id": "para_428" }, { "text": "The General Court identified three periods in paragraph 1088 of that judgment. The first period, described as ‘exploratory’, runs from 1 January 2011 to 1 August 2012. It is said to be marked by deployment of the overall strategy Google wanted in order to ensure the transition to the mobile internet …", "paragraph_id": "para_429" }, { "text": "134", "paragraph_id": "para_430" }, { "text": "That segmentation enabled the General Court to take into consideration the fact that Google had ended the portfolio-based RSAs of its own accord, as from 31 March 2014, in order to replace them with device-based RSAs. That had necessarily had the effect of diminishing the foreclosure resulting from …", "paragraph_id": "para_431" }, { "text": "135", "paragraph_id": "para_432" }, { "text": "Quite apart from those circumstances, the General Court considered that the factual context did not justify granting Google the benefit of mitigating circumstances or, conversely, taking aggravating circumstances into account.", "paragraph_id": "para_433" }, { "text": "136", "paragraph_id": "para_434" }, { "text": "On the basis of those considerations, in particular the intentional implementation, over a significant period of time, of an overall strategy the existence of which was not called into question by the Commission’s errors concerning the third conduct examined in the decision at issue which had effect …", "paragraph_id": "para_435" }, { "text": "137", "paragraph_id": "para_436" }, { "text": "The General Court also stated, in paragraph 1111 of the judgment under appeal, that the amount of the fine as determined in the exercise of its unlimited jurisdiction did not exceed the amount provided for in the second subparagraph of Article 23(2) of Regulation No 1/2003, namely 10% of the total turnover of Alphabet in the preceding business year.", "paragraph_id": "para_437" }, { "text": "138", "paragraph_id": "para_438" }, { "text": "In the light of the circumstances taken into consideration in the exercise of its unlimited jurisdiction, the General Court did not deem it necessary to rule on the merits of the arguments put forward by Google and Alphabet concerning the additional amount equivalent to 11% of the value of relevant sales made in 2017 (see recitals 1467 and 1468 of the decision at issue), since that parameter was not taken into account by the General Court.", "paragraph_id": "para_439" }, { "text": "139", "paragraph_id": "para_440" }, { "text": "Consequently, in paragraph 1113 of the judgment under appeal, the General Court varied Article 2 of the decision at issue so that the amount of the fine imposed on Google for the single and continuous infringement referred to in Article 1 of the decision at issue was set at EUR 4125000000, Alphabet being jointly and severally liable in respect of the period from 2 October 2015 to the date of adoption of the decision at issue for the amount of EUR 1520605895.", "paragraph_id": "para_441" }, { "text": "140", "paragraph_id": "para_442" }, { "text": "The General Court dismissed the action as to the remainder.", "paragraph_id": "para_443" }, { "text": "IV.   Forms of order sought by the parties to the appeal and the procedure before the Court of Justice", "paragraph_id": "para_444" }, { "text": "141", "paragraph_id": "para_445" }, { "text": "By their appeal, Google and Alphabet, supported by ADA, CCIA, Gigaset, HMD and Opera, claim that the Court should:", "paragraph_id": "para_446" }, { "text": "–", "paragraph_id": "para_447" }, { "text": "set aside the judgment under appeal;", "paragraph_id": "para_448" }, { "text": "–", "paragraph_id": "para_449" }, { "text": "annul the decision at issue;", "paragraph_id": "para_450" }, { "text": "–", "paragraph_id": "para_451" }, { "text": "in the alternative, refer the case back to the General Court;", "paragraph_id": "para_452" }, { "text": "–", "paragraph_id": "para_453" }, { "text": "in the further alternative, set aside paragraph 2 of the operative part of the judgment under appeal and fix the amount of the fine imposed to a significantly lower amount; and", "paragraph_id": "para_454" }, { "text": "–", "paragraph_id": "para_455" }, { "text": "order the Commission to pay all the costs in connection with the present proceedings and the proceedings before the General Court.", "paragraph_id": "para_456" }, { "text": "142", "paragraph_id": "para_457" }, { "text": "The Commission, BEUC, FairSearch and Seznam contend that the Court should:", "paragraph_id": "para_458" }, { "text": "–", "paragraph_id": "para_459" }, { "text": "dismiss the appeal; and", "paragraph_id": "para_460" }, { "text": "–", "paragraph_id": "para_461" }, { "text": "order Google to pay the costs.", "paragraph_id": "para_462" }, { "text": "143", "paragraph_id": "para_463" }, { "text": "By orders of the President of the Court of 19 January 2023, Google and Alphabet v Commission ( C‑738/22 P , EU:C:2023:44 ), and of 18 April 2023, Google and Alphabet v Commission ( C‑738/22 P , EU:C:2023:326 ), the document contained in Annex A.2 to the appeal and certain information contained in fo …", "paragraph_id": "para_464" }, { "text": "V.   The appeal", "paragraph_id": "para_465" }, { "text": "144", "paragraph_id": "para_466" }, { "text": "Google and Alphabet put forward six grounds in support of their appeal, alleging (i) that the General Court erred in its review of the causal link between the MADA pre-installation conditions and their alleged exclusionary effects; (ii) that the decision at issue was erroneously upheld despite the C …", "paragraph_id": "para_467" }, { "text": "A.   First ground of appeal", "paragraph_id": "para_468" }, { "text": "1.\n  \n Arguments of the parties", "paragraph_id": "para_469" }, { "text": "145", "paragraph_id": "para_470" }, { "text": "By their first ground of appeal, which is divided into four parts, Google and Alphabet claim that the General Court made an error of law in its review of the causal link between the MADA pre-installation conditions and their alleged exclusionary effects.", "paragraph_id": "para_471" }, { "text": "146", "paragraph_id": "para_472" }, { "text": "They argue that it is apparent from the case-law, and in particular from the judgment of 6 October 2015, Post Danmark ( C‑23/14 , EU:C:2015:651 , paragraph  47 ), that the Commission must establish that the exclusionary effects of an abuse are attributable to the specific conduct at issue; those effects cannot be presumed. However, the Commission failed to fulfil that obligation with respect to the MADAs and the General Court confirmed that incorrect approach.", "paragraph_id": "para_473" }, { "text": "147", "paragraph_id": "para_474" }, { "text": "The Commission, supported by BEUC, contends that that ground of appeal is entirely ineffective, as it is based on the erroneous premiss that a counterfactual analysis is the only way to establish whether conduct is contrary to Article 102 TFEU.", "paragraph_id": "para_475" }, { "text": "148", "paragraph_id": "para_476" }, { "text": "FairSearch maintains that that ground of appeal is new and, therefore, inadmissible. It argues that, before the General Court, Google and Alphabet claimed that the Commission had failed to establish any causal connection between MADA pre-installation conditions and Google’s market shares. Yet, in their appeal, Google and Alphabet claimed that the error consisted of the failure to exclusively attribute the alleged exclusionary effects to the abusive conduct.", "paragraph_id": "para_477" }, { "text": "(a)\n  \n First part", "paragraph_id": "para_478" }, { "text": "149", "paragraph_id": "para_479" }, { "text": "By the first part, it is alleged that the General Court wrongly ruled that the Commission could legitimately examine, in recitals 765 and 888 of the decision at issue, the legality of the MADA pre-installation conditions by reference to the combined effects of the MADAs and RSAs. The General Court t …", "paragraph_id": "para_480" }, { "text": "150", "paragraph_id": "para_481" }, { "text": "Google and Alphabet put forward five arguments to that effect. First, since MADAs and RSAs were separate agreements, MADA signatories had no obligation to enter into RSAs, so that the legality of the MADA pre-installation conditions could not be assessed in the light of the combined effects of MADAs …", "paragraph_id": "para_482" }, { "text": "151", "paragraph_id": "para_483" }, { "text": "Gigaset asserts that the General Court erred in taking into account the lawful RSAs as relevant factors in the analysis of the legality of the conditions laid down by the MADAs. Not only can the effects of the RSAs not be attributed to those of the MADAs, but it must also be observed that not all OEMs that entered into MADAs had necessarily entered into RSAs, and therefore it is not possible to make such a generalisation. Gigaset, moreover, claims to be one such case.", "paragraph_id": "para_484" }, { "text": "152", "paragraph_id": "para_485" }, { "text": "HMD also takes the view, for reasons similar to those relied on by Google and Alphabet, that the General Court was not required to take account of the RSAs in assessing the legality of the MADA pre-installation conditions.", "paragraph_id": "para_486" }, { "text": "153", "paragraph_id": "para_487" }, { "text": "Opera submits that, generally, it is surprising that the General Court ruled that the non-exclusive pre-installation conditions were abusive while the mechanisms culminating in exclusive pre-installation were not. Such an approach ultimately results in fewer opportunities for Google’s rivals, such a …", "paragraph_id": "para_488" }, { "text": "154", "paragraph_id": "para_489" }, { "text": "The Commission, BEUC, FairSearch and Seznam maintain that this part is unfounded.", "paragraph_id": "para_490" }, { "text": "(b)\n  \n Second part", "paragraph_id": "para_491" }, { "text": "155", "paragraph_id": "para_492" }, { "text": "By the second part, it is alleged that the General Court erred, in paragraphs 546 to 558 of the judgment under appeal, in rejecting Google and Alphabet’s argument that users’ choice not to download rival apps more frequently was attributable to user preferences. When assessing the legality of Google …", "paragraph_id": "para_493" }, { "text": "156", "paragraph_id": "para_494" }, { "text": "Four additional reasons must, according to Google and Alphabet, lead to that error being established. First, in their submission, the General Court’s approach was contrary to the case-law of the Court of Justice, cited in paragraph 79 of the judgment under appeal, according to which, where the Commi …", "paragraph_id": "para_495" }, { "text": "157", "paragraph_id": "para_496" }, { "text": "HMD contends that the General Court could not uphold the decision at issue while failing to review whether the users’ choice not to download rival apps more frequently was attributable to abusive pre-installation rather than user preferences. It should, on the contrary, have applied the case-law ari …", "paragraph_id": "para_497" }, { "text": "158", "paragraph_id": "para_498" }, { "text": "Opera argues that, without an analysis of the causal link between the MADA pre-installation conditions and their alleged effects on downloads of rival apps, it cannot be concluded that a low level of such downloads indicates the presence of anticompetitive foreclosure.", "paragraph_id": "para_499" }, { "text": "159", "paragraph_id": "para_500" }, { "text": "The Commission, BEUC and FairSearch contend that this part should be rejected as inadmissible. In any event, according to the Commission, BEUC, FairSearch and Seznam, this part is unfounded.", "paragraph_id": "para_501" }, { "text": "(c)\n  \n Third part", "paragraph_id": "para_502" }, { "text": "160", "paragraph_id": "para_503" }, { "text": "By the third part of the first ground of appeal, Google and Alphabet submit that the General Court wrongly held that evidence relating to default setting was relevant to the analysis of the MADA pre-installation conditions.", "paragraph_id": "para_504" }, { "text": "161", "paragraph_id": "para_505" }, { "text": "In so doing, the General Court wrongly endorsed the Commission’s approach of taking default setting into account, as relevant context, for the assessment of those pre-installation conditions when that default setting was not in issue and had its own purpose and effects. That led the General Court, i …", "paragraph_id": "para_506" }, { "text": "162", "paragraph_id": "para_507" }, { "text": "Google and Alphabet criticise, in particular, five reasons set out by the General Court in support of that approach. First, the General Court found, in paragraphs 329 and 330 of the judgment under appeal, that it is not easy to distinguish between the effects of pre-installation and default setting. …", "paragraph_id": "para_508" }, { "text": "163", "paragraph_id": "para_509" }, { "text": "CCIA claims that the General Court wrongly refused to distinguish pre-installation and default setting. In so doing, it relieved the Commission of its burden of proof, by endorsing the Commission’s ability to rely on mere presumptions.", "paragraph_id": "para_510" }, { "text": "164", "paragraph_id": "para_511" }, { "text": "HMD is also of the view that it is crucial to distinguish the effects of pre-installation from those of default setting. The General Court held that it had to be accepted that arguments put forward in the context of one of those two concepts could apply equally in the context of the other. However, …", "paragraph_id": "para_512" }, { "text": "165", "paragraph_id": "para_513" }, { "text": "Opera argues that the General Court’s finding, in paragraph 334 of the judgment under appeal, that pre-installation and default setting are the same, because ‘what may be inferred in the case of pre-installation also applies mutatis mutandis and a fortiori in the case of default setting’, is both il …", "paragraph_id": "para_514" }, { "text": "166", "paragraph_id": "para_515" }, { "text": "The Commission, BEUC, FairSearch and Seznam maintain that this part is inadmissible, ineffective and, in any event, unfounded. In particular, in their view, this part is inadmissible for two reasons. First, Google and Alphabet challenge the factual findings. Second, reference is made to paragraphs 3 …", "paragraph_id": "para_516" }, { "text": "(d)\n  \n Fourth part", "paragraph_id": "para_517" }, { "text": "167", "paragraph_id": "para_518" }, { "text": "By the fourth part of the first ground of appeal, Google and Alphabet contend that the General Court erred in its analysis of the MADA pre-installation conditions by failing to consider a counterfactual scenario and the procompetitive effects of those conditions.", "paragraph_id": "para_519" }, { "text": "168", "paragraph_id": "para_520" }, { "text": "Those conditions were the non-monetary consideration that Google received from OEMs in exchange for providing a software suite, including in particular the Android OS and the Play Store, free of charge. That economic model had procompetitive effects which the Commission had overlooked by failing to …", "paragraph_id": "para_521" }, { "text": "169", "paragraph_id": "para_522" }, { "text": "CCIA submits that the General Court failed to consider whether, under any realistic alternative scenario absent the MADA pre-installation conditions, rival search engines and browsers would have enjoyed greater competitive opportunities. According to settled case-law, the Commission was required to …", "paragraph_id": "para_523" }, { "text": "170", "paragraph_id": "para_524" }, { "text": "First, CCIA argues that, contrary to the General Court’s ruling, the onus was on the Commission to show that the conduct at issue is anticompetitive by carrying out a counterfactual analysis. That is the means of establishing a causal connection between the alleged restriction of competition and its effects in order to determine whether the alleged anticompetitive effects are attributable to the conduct of the dominant undertaking.", "paragraph_id": "para_525" }, { "text": "171", "paragraph_id": "para_526" }, { "text": "Second, CCIA maintains that the General Court erred in finding that the Commission could legitimately disregard the state of competition enabled by the MADA pre-installation conditions. That is particularly the case in the context of an ecosystem comprising different multi-sided markets. Thus, the i …", "paragraph_id": "para_527" }, { "text": "172", "paragraph_id": "para_528" }, { "text": "According to Gigaset, the General Court erred in considering the MADA pre-installation conditions in isolation and wrongly ignored the fact that those conditions formed an integral part of the licensing model developed for the Android OS, which had enabled Google to keep it open and free of charge. …", "paragraph_id": "para_529" }, { "text": "173", "paragraph_id": "para_530" }, { "text": "HMD also submits that the General Court erred in law by failing to examine whether the open and free licensing system proposed by Google would have been possible without the MADA pre-installation conditions.", "paragraph_id": "para_531" }, { "text": "174", "paragraph_id": "para_532" }, { "text": "Opera argues that the MADAs were the cornerstone of Google’s economic model, which consisted in the open and free licensing of the Android OS with the aim of expanding opportunities to distribute its revenue-generating services, particularly the Google Search app. That model was procompetitive for G …", "paragraph_id": "para_533" }, { "text": "175", "paragraph_id": "para_534" }, { "text": "According to Opera, the General Court also erred in law by accepting that the Commission could assess the specific procompetitive effects of those pre-installation conditions only at the stage of the objective justification of the restriction.", "paragraph_id": "para_535" }, { "text": "176", "paragraph_id": "para_536" }, { "text": "The Commission, BEUC and FairSearch claim that this part is unfounded.", "paragraph_id": "para_537" }, { "text": "2.\n  \n Findings of the Court", "paragraph_id": "para_538" }, { "text": "(a)\n  \n Admissibility and effectiveness of the first ground of appeal", "paragraph_id": "para_539" }, { "text": "177", "paragraph_id": "para_540" }, { "text": "In the first place, FairSearch submits that the first ground of appeal is inadmissible in its entirety because it constitutes a new plea in law.", "paragraph_id": "para_541" }, { "text": "178", "paragraph_id": "para_542" }, { "text": "According to settled case-law, a plea raised for the first time in an appeal before this Court must be rejected as inadmissible. In an appeal, the Court’s jurisdiction is confined to examining the assessment by the General Court of the pleas argued before it. To allow a party to put forward in an ap …", "paragraph_id": "para_543" }, { "text": "179", "paragraph_id": "para_544" }, { "text": "In the present case, it is sufficient to note that, by their first ground of appeal, Google and Alphabet seek specifically to criticise the judgment under appeal in so far as the General Court rejected their argument that the Commission had failed to establish a causal link between the MADA pre-installation conditions and the exclusionary effects associated with them.", "paragraph_id": "para_545" }, { "text": "180", "paragraph_id": "para_546" }, { "text": "That plea does not therefore seek to widen the subject matter of the dispute beyond that which was heard by the General Court. Accordingly, this ground of appeal is admissible.", "paragraph_id": "para_547" }, { "text": "181", "paragraph_id": "para_548" }, { "text": "In the second place, the Commission contends that the first ground of appeal is ineffective. It is based entirely on the erroneous premiss that a counterfactual analysis is the only way to establish whether conduct is capable of restricting competition, when in fact such an analysis is just one of a number of ways of establishing such a restriction.", "paragraph_id": "para_549" }, { "text": "182", "paragraph_id": "para_550" }, { "text": "It should, however, be observed that, by their first ground of appeal, Google and Alphabet do not base all of their arguments on that premiss. The supposedly mandatory nature of the counterfactual analysis under Article 102 TFEU is the subject of only the fourth part of that ground of appeal. Thus, …", "paragraph_id": "para_551" }, { "text": "183", "paragraph_id": "para_552" }, { "text": "Consequently, the Commission’s argument that the first ground of appeal is ineffective must be rejected.", "paragraph_id": "para_553" }, { "text": "(b)\n  \n First part", "paragraph_id": "para_554" }, { "text": "184", "paragraph_id": "para_555" }, { "text": "By the first part of the first ground of appeal, Google and Alphabet contend, in essence, that the General Court erred in law by taking account, in its assessment of the effects of the MADA pre-installation conditions, of the effects of device-based RSAs and portfolio-based RSAs, although the former …", "paragraph_id": "para_556" }, { "text": "185", "paragraph_id": "para_557" }, { "text": "In that regard, it must be recalled that Article 102 TFEU prohibits any abuse by one or more undertakings of a dominant position within the internal market or in a substantial part of it, in so far as it may affect trade between Member States. The purpose of Article 102 is to prevent competition fro …", "paragraph_id": "para_558" }, { "text": "186", "paragraph_id": "para_559" }, { "text": "It must be stated that, whilst a dominant undertaking has a special responsibility not to allow its behaviour to impair genuine, undistorted competition on the internal market, Article 102 TFEU does not sanction the existence per se of a dominant position, but only the abusive exploitation thereof (judgment of 10 September 2024, Google and Alphabet v Commission (Google Shopping), C‑48/22 P , EU:C:2024:726 , paragraph  163 and the case-law cited).", "paragraph_id": "para_560" }, { "text": "187", "paragraph_id": "para_561" }, { "text": "In order to find, in a given case, that conduct must be categorised as ‘abuse of a dominant position’ within the meaning of Article 102 TFEU, it is necessary, as a rule, to demonstrate, through the use of methods other than those which are part of competition on the merits between undertakings, that …", "paragraph_id": "para_562" }, { "text": "188", "paragraph_id": "para_563" }, { "text": "That demonstration must, moreover, be aimed at establishing, on the basis of specific, tangible points of analysis and evidence, that the conduct at issue, at the very least, is capable of producing exclusionary effects (judgment of 10 September 2024, Google and Alphabet v Commission (Google Shopping), C‑48/22 P , EU:C:2024:726 , paragraph  166 and the case-law cited).", "paragraph_id": "para_564" }, { "text": "189", "paragraph_id": "para_565" }, { "text": "The Court has made clear that that demonstration, which may entail the use of different analytical templates depending on the type of conduct at issue in a given case, must always be made in the light of all the relevant factual circumstances, irrespective of whether they concern the conduct itself, …", "paragraph_id": "para_566" }, { "text": "190", "paragraph_id": "para_567" }, { "text": "An assessment as to whether conduct is abusive cannot be made in the abstract. Conduct may prove to be capable of producing exclusionary effects in certain specific circumstances when that might not be the case were that conduct to have taken place in a different context. It is in that sense that th …", "paragraph_id": "para_568" }, { "text": "191", "paragraph_id": "para_569" }, { "text": "As the Advocate General observed in point 61 of her Opinion, it follows from that case-law that the taking into account of a factual element as a relevant contextual factor for the purpose of assessing the effects of conduct in the light of Article 102 TFEU does not depend on whether that element am …", "paragraph_id": "para_570" }, { "text": "192", "paragraph_id": "para_571" }, { "text": "In the present case, the General Court annulled the decision at issue in so far as it characterised portfolio-based RSAs as abusive, under Article 102 TFEU. It held, in paragraph 800 of the judgment under appeal, that the abusive nature of those agreements had not been demonstrated to the requisite …", "paragraph_id": "para_572" }, { "text": "193", "paragraph_id": "para_573" }, { "text": "In that part, Google and Alphabet relied, before the General Court, on the fact that the MADAs did not prevent OEMs from pre-installing rival search engines or browsers alongside the Google Search app and Chrome browser.", "paragraph_id": "para_574" }, { "text": "194", "paragraph_id": "para_575" }, { "text": "In rejecting that part of the plea, the General Court stated in its preliminary observations, in paragraphs 425 to 427 of the judgment under appeal, that, in the decision at issue, the Commission did not dispute the theoretical possibility of joint installation, but that this possibility disregarded the particular context of the MADAs, and in particular the RSAs which required exclusive pre-installation of the Google Search app for a significant number of devices.", "paragraph_id": "para_576" }, { "text": "195", "paragraph_id": "para_577" }, { "text": "The General Court went on to analyse, in paragraphs 431 to 436 of that judgment, the effects of the MADA pre-installation conditions on competing search engine providers and, in paragraphs 437 to 465 of that judgment, the effects of those conditions on competing browser providers.", "paragraph_id": "para_578" }, { "text": "196", "paragraph_id": "para_579" }, { "text": "In that context, it must be noted, first, that, contrary to what is claimed by Google and Alphabet, the General Court correctly took account of the fact that MADAs and RSAs were separate agreements and that signatories of MADAs were not obliged to enter into RSAs. In fact, the General Court took the …", "paragraph_id": "para_580" }, { "text": "197", "paragraph_id": "para_581" }, { "text": "Second, the General Court did not disregard the case-law set out in paragraphs 188 and 189 of the present judgment when it found that the Commission had correctly taken RSAs into account as relevant contextual elements, irrespective of their legality or illegality in the light of Article 102 TFEU, f …", "paragraph_id": "para_582" }, { "text": "198", "paragraph_id": "para_583" }, { "text": "Third, the Court must reject the claim by Google and Alphabet that the anticompetitive effects of the MADAs are not established, since, in a counterfactual scenario not involving those agreements, the RSAs would have had the same exclusionary effects, to the detriment of rival search services.", "paragraph_id": "para_584" }, { "text": "199", "paragraph_id": "para_585" }, { "text": "That claim seeks to call into question the General Court’s factual finding that, on the one hand, MADAs and RSAs were complementary and, on the other, their effects were indissociable. Moreover, drawing an artificial distinction between the effects of those two types of agreement would make it impos …", "paragraph_id": "para_586" }, { "text": "200", "paragraph_id": "para_587" }, { "text": "Accordingly, the first part of the first ground of appeal must be rejected as unfounded.", "paragraph_id": "para_588" }, { "text": "(c)\n  \n Second part", "paragraph_id": "para_589" }, { "text": "201", "paragraph_id": "para_590" }, { "text": "By the second part of the first ground of appeal, Google and Alphabet complain that, in paragraphs 546 to 558 and 570 to 584 of the judgment under appeal, the General Court wrongly rejected their argument that users’ choice not to download rival apps more frequently was attributable not to the statu …", "paragraph_id": "para_591" }, { "text": "202", "paragraph_id": "para_592" }, { "text": "As regards, first, the rules on the allocation of the burden of proof, it is for the Commission to adduce evidence capable of demonstrating to the requisite legal standard the existence of circumstances constituting an infringement of competition law. By contrast, it is for the undertaking raising a …", "paragraph_id": "para_593" }, { "text": "203", "paragraph_id": "para_594" }, { "text": "Second, as regards the level of proof required to assess the effects of particular conduct on end users, it should be noted, as the Advocate General did in points 137 to 139 of her Opinion, that there are situations in which it is not possible to analyse whether users’ behaviour is attributable to t …", "paragraph_id": "para_595" }, { "text": "204", "paragraph_id": "para_596" }, { "text": "In this case, Google and Alphabet criticise the General Court’s assessment of the arguments put forward in the first part of their second plea at first instance, according to which, first, the Commission ignored the fact that Google’s competitors had other equally effective means of reaching consume …", "paragraph_id": "para_597" }, { "text": "205", "paragraph_id": "para_598" }, { "text": "In the context of that first part of the second plea at first instance, Google and Alphabet were critical of the evidence used by the Commission, in its assessment of the anticompetitive nature of the tying of the Google Search app and the Play Store, to support the Commission’s finding that the pre …", "paragraph_id": "para_599" }, { "text": "206", "paragraph_id": "para_600" }, { "text": "In that context, the General Court stated, first of all, in paragraph 546 of that judgment that Google and Alphabet did not dispute that users could easily download apps competing with the Google Search app or Chrome browser. It intended thereby to establish the framework for its assessment, by maki …", "paragraph_id": "para_601" }, { "text": "207", "paragraph_id": "para_602" }, { "text": "Thus, in paragraph 557, the General Court held that, for the reasons set out in that decision, it was apparent that even though general search or browser apps can readily be downloaded free of charge, they are not downloaded in practice or are downloaded for an insufficient proportion of the devices …", "paragraph_id": "para_603" }, { "text": "208", "paragraph_id": "para_604" }, { "text": "Next, in the context of its assessment of Google and Alphabet’s complaint relating to the alleged failure to show a link between usage shares and pre-installation, the General Court confirmed, in paragraphs 570 to 584 of the judgment under appeal, that the material put forward by the Commission serv …", "paragraph_id": "para_605" }, { "text": "209", "paragraph_id": "para_606" }, { "text": "Lastly, the General Court concluded, in paragraph 583 of that judgment, that, in view of the tendency to freeze the situation associated with the MADA pre-installation conditions and in the absence of proof of the precise impact of the superior quality claimed by Google and Alphabet in respect of their general search and browser apps, the Commission had correctly considered that Google’s usage shares confirmed the status quo bias linked to pre-installation.", "paragraph_id": "para_607" }, { "text": "210", "paragraph_id": "para_608" }, { "text": "It thus follows from the judgment under appeal that Google and Alphabet cannot criticise the General Court for finding that the legality of conduct depends only on an analysis of actual consumer choices. That criticism is the result of a misreading of that judgment in that it ignores the context of the General Court’s assessment and, in particular, the fact that it analyses evidence which supports the demonstration of a status quo bias, which is not merely presumed.", "paragraph_id": "para_609" }, { "text": "211", "paragraph_id": "para_610" }, { "text": "Likewise, the General Court cannot be criticised for having ruled, in paragraph 575 of that judgment, that the Commission was not required to establish whether rival apps’ lower usage was attributable to the pre-installation conditions or to users’ preferences for the superior quality of Google’s ap …", "paragraph_id": "para_611" }, { "text": "212", "paragraph_id": "para_612" }, { "text": "That misreading of the judgment under appeal leads Google and Alphabet to conclude that the General Court’s approach is contrary to the principle of legal certainty or gives rise to irrational outcomes. They claim that the General Court merely assessed the evolution in users’ choices before concludi …", "paragraph_id": "para_613" }, { "text": "213", "paragraph_id": "para_614" }, { "text": "Furthermore, as is apparent from paragraph 203 of the present judgment, since the Commission had established to the requisite legal standard that users’ behaviour had been distorted by pre-installation favouring Google’s apps to the detriment of the apps of its rivals, the existence of such a bias precludes a finding that that choice was, in principle, attributable to the superior performance of the dominant undertaking.", "paragraph_id": "para_615" }, { "text": "214", "paragraph_id": "para_616" }, { "text": "Accordingly, it must be held that the second part of the first ground of appeal is unfounded, and there is a need to rule on the inadmissibility of that part, as alleged by the Commission, BEUC and FairSearch.", "paragraph_id": "para_617" }, { "text": "(d)\n  \n Third part", "paragraph_id": "para_618" }, { "text": "215", "paragraph_id": "para_619" }, { "text": "By the third part of the first ground of appeal, Google and Alphabet submit that the General Court wrongly held that evidence relating to default setting was relevant to the analysis of the MADA pre-installation conditions, which governed that pre-installation.", "paragraph_id": "para_620" }, { "text": "216", "paragraph_id": "para_621" }, { "text": "In that regard, it should be noted that it has consistently been held that, in accordance with Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, an appeal lies on points of law only. The General Court alone has jurisdiction to est …", "paragraph_id": "para_622" }, { "text": "217", "paragraph_id": "para_623" }, { "text": "In the present case, as the Advocate General observed in points 72 to 76 of her Opinion, the paragraphs of the judgment under appeal that are disputed by Google and Alphabet form part of the General Court’s assessment of the arguments by which they criticised the relevance of evidence used by the Co …", "paragraph_id": "para_624" }, { "text": "218", "paragraph_id": "para_625" }, { "text": "In paragraphs 331 and 332 of that judgment, the General Court justified that conclusion by finding that it was not, in practice, possible to distinguish the effects of pre-installation from those of default setting in the analysis of the evidence used by the Commission in so far as notably Google it …", "paragraph_id": "para_626" }, { "text": "219", "paragraph_id": "para_627" }, { "text": "It is on the basis of those preliminary considerations that the General Court went on to assess the evidence produced by the Commission to demonstrate the existence of a status quo bias that was generated by pre-installation and criticised by Google and Alphabet. Thus, the General Court found that t …", "paragraph_id": "para_628" }, { "text": "220", "paragraph_id": "para_629" }, { "text": "As it is, the criticisms expressed by Google and Alphabet in respect of that assessment in the context of the third part of their first ground of appeal must be rejected as, in part, inadmissible and, in part, unfounded.", "paragraph_id": "para_630" }, { "text": "221", "paragraph_id": "para_631" }, { "text": "First, as the Advocate General observes in points 79 and 80 of her Opinion, part of Google and Alphabet’s argument is aimed, in reality, at obtaining a new assessment of the evidence produced before the General Court. They call into question the meaning of the terms ‘default setting’ and ‘pre-instal …", "paragraph_id": "para_632" }, { "text": "222", "paragraph_id": "para_633" }, { "text": "Second, as regards Google and Alphabet’s arguments calling into question the relevance of the context of pre-installation of the apps concerned to the assessment of its effects, it must be held that, in order to demonstrate any anticompetitive effects of particular conduct, that conduct must be anal …", "paragraph_id": "para_634" }, { "text": "223", "paragraph_id": "para_635" }, { "text": "In view of the above, the third part of the first ground of appeal must be rejected as partly inadmissible and partly unfounded.", "paragraph_id": "para_636" }, { "text": "(e)\n  \n Fourth part", "paragraph_id": "para_637" }, { "text": "224", "paragraph_id": "para_638" }, { "text": "By the fourth part of their first ground of appeal, Google and Alphabet maintain, in essence, that the Commission was obliged to establish a causal link between the MADA pre-installation conditions and the alleged anticompetitive effects by using a realistic counterfactual scenario in order to exami …", "paragraph_id": "para_639" }, { "text": "225", "paragraph_id": "para_640" }, { "text": "As regards, first, the need to use a counterfactual scenario, it must be noted, as the Advocate General does in points 93 and 94 of her Opinion, that, while the Commission is required to establish a causal link between the contested abusive behaviour and its anticompetitive effects, it may neverthel …", "paragraph_id": "para_641" }, { "text": "226", "paragraph_id": "para_642" }, { "text": "In order to establish an abuse of a dominant position, it is sufficient to prove that the conduct at issue is capable of producing exclusionary effects. It is not, however, necessary to prove its actual effects. It follows that the fact that, unlike its competitors, the dominant undertaking alone wa …", "paragraph_id": "para_643" }, { "text": "227", "paragraph_id": "para_644" }, { "text": "In the present case, Google and Alphabet complained before the General Court that the Commission had not conducted a full analysis of the economic and legal context of the MADAs, having failed to examine the new opportunities created for competitors and the fact that the MADAs constituted an essential prerequisite for the viability of the free licensing model developed for the Android OS.", "paragraph_id": "para_645" }, { "text": "228", "paragraph_id": "para_646" }, { "text": "In that regard, it must be pointed out that the General Court found, in paragraphs 590 to 594 of the judgment under appeal, that the Commission was entitled to focus on demonstrating the anticompetitive effects of the MADA pre-installation conditions without drawing on the free licensing model of th …", "paragraph_id": "para_647" }, { "text": "229", "paragraph_id": "para_648" }, { "text": "As regards, second, the account taken of procompetitive effects, it should be noted that where a competition authority shows that conduct of an undertaking in a dominant position is capable of impairing effective and undistorted competition in the internal market, it remains possible for that undert …", "paragraph_id": "para_649" }, { "text": "230", "paragraph_id": "para_650" }, { "text": "In accordance with that case-law, Google and Alphabet cannot criticise the General Court for having failed to take account of the procompetitive effects they alleged before it. Although, at the stage of demonstrating the anticompetitive nature of conduct, the competition authority must, in accordanc …", "paragraph_id": "para_651" }, { "text": "231", "paragraph_id": "para_652" }, { "text": "The fourth part of the first ground of appeal must therefore be rejected as unfounded.", "paragraph_id": "para_653" }, { "text": "232", "paragraph_id": "para_654" }, { "text": "In the light of all of the foregoing considerations, the first ground of appeal is rejected in its entirety.", "paragraph_id": "para_655" }, { "text": "B.   Second ground of appeal", "paragraph_id": "para_656" }, { "text": "1.\n  \n Arguments of the parties", "paragraph_id": "para_657" }, { "text": "233", "paragraph_id": "para_658" }, { "text": "By their second ground of appeal, which is divided into two parts, Google and Alphabet criticise the General Court for erroneously upholding the decision at issue despite the Commission’s failure to establish, in that decision, that the MADA pre-installation conditions were capable of foreclosing as-efficient rivals.", "paragraph_id": "para_659" }, { "text": "234", "paragraph_id": "para_660" }, { "text": "They submit that it is apparent from established case-law that conduct that is not capable of foreclosing as-efficient rivals falls outside the scope of Article 102 TFEU, and claim that the Commission deviated from that case-law, without being criticised by the General Court.", "paragraph_id": "para_661" }, { "text": "235", "paragraph_id": "para_662" }, { "text": "Google and Alphabet, and also HMD, state that, like the Commission, the General Court failed to establish that the MADA pre-installation conditions were capable of foreclosing as-efficient rivals, although it conducted that analysis in the context of the assessment of the legality of portfolio-based RSAs.", "paragraph_id": "para_663" }, { "text": "236", "paragraph_id": "para_664" }, { "text": "They argue that the General Court adopted an approach that led it, first, to disregard the concept of ‘foreclosure’ by failing to take account of existing opportunities for competitors and, second, to rule, wrongly, that the AEC test applies only to conduct relating to pricing. Thus, it wrongly held …", "paragraph_id": "para_665" }, { "text": "237", "paragraph_id": "para_666" }, { "text": "CCIA claims, first, that the General Court erred in law by conflating the concepts of ‘significant competitive advantage’ and ‘foreclosure’. In so doing, it relieved the Commission of the burden of conducting an analysis of the effects of the alleged conduct. However, in accordance with the case-law …", "paragraph_id": "para_667" }, { "text": "238", "paragraph_id": "para_668" }, { "text": "Opera notes that the Commission has not shown, in the decision at issue, that there is a risk of foreclosure of rivals. The Commission contended, before the General Court, that it was not required to do so. However, the General Court substituted its own assessment in that respect for that of the Com …", "paragraph_id": "para_669" }, { "text": "239", "paragraph_id": "para_670" }, { "text": "According to the Commission, FairSearch and Seznam, the second ground of appeal is, in part, inadmissible, in part, ineffective, and in any event unfounded.", "paragraph_id": "para_671" }, { "text": "(a)\n  \n First part", "paragraph_id": "para_672" }, { "text": "240", "paragraph_id": "para_673" }, { "text": "The first part of the second ground of appeal concerns the General Court’s alleged failure to consider whether the tying of the Google Search app with the Play Store app was capable of foreclosing the general search services of as-efficient rivals.", "paragraph_id": "para_674" }, { "text": "241", "paragraph_id": "para_675" }, { "text": "This part comprises three complaints, alleging that the Commission should have (i) examined the impact of the conduct at issue in the light of its coverage, duration and operation; (ii) carried out that analysis by reference to hypothetical as-efficient rivals; and (iii) determined whether that conduct deprived such rivals of opportunities to compete effectively.", "paragraph_id": "para_676" }, { "text": "(1)   First complaint", "paragraph_id": "para_677" }, { "text": "242", "paragraph_id": "para_678" }, { "text": "Google and Alphabet claim that, according to settled case-law, it is necessary to consider the conduct’s coverage of the relevant market in order to determine the competitive impact of that conduct. The General Court analysed that rate of coverage in respect of portfolio-based RSAs but erroneously refused to take it into account in respect of MADAs in paragraph 544 of the judgment under appeal.", "paragraph_id": "para_679" }, { "text": "243", "paragraph_id": "para_680" }, { "text": "They argue that the General Court committed two further errors in noting that the coverage of the MADAs was, in any event, significant enough to support a finding of abuse. First, on the basis of similar rates of coverage identified in respect of MADAs and RSAs for 2013 and 2014, the General Court came to opposite conclusions, which is illogical. Second, for 2015 and 2016, the rate of coverage is much lower than is typically found when an abuse is clear-cut.", "paragraph_id": "para_681" }, { "text": "244", "paragraph_id": "para_682" }, { "text": "The Commission contends that this complaint is ineffective and, in any event, unfounded. FairSearch regards the complaint as inadmissible in so far as it amounts to a request to the Court of Justice for a new assessment of facts.", "paragraph_id": "para_683" }, { "text": "(2)   Second complaint", "paragraph_id": "para_684" }, { "text": "245", "paragraph_id": "para_685" }, { "text": "Google and Alphabet submit that the General Court made an error in upholding the decision at issue when, in that decision, the Commission avoided the requirements of the AEC test, namely its obligation to demonstrate that the MADA pre-installation conditions were capable of foreclosing as-efficient general search and browser app rivals.", "paragraph_id": "para_686" }, { "text": "246", "paragraph_id": "para_687" }, { "text": "Whereas the General Court had applied that test correctly in respect of RSAs, it did not do so in respect of MADAs. That test is general in scope, however, and does not apply only to pricing practices. The General Court therefore erred in law in holding, in paragraphs 577 and 578 of the judgment und …", "paragraph_id": "para_688" }, { "text": "247", "paragraph_id": "para_689" }, { "text": "Likewise, the General Court had failed to review whether as-efficient competitors could have achieved pre-installation of their apps alongside the Google Search app. It had adopted an alternative test, contrary to the test it applied to the portfolio-based RSAs. It had set out its reasoning by reference to actual rivals without showing that they were as efficient.", "paragraph_id": "para_690" }, { "text": "248", "paragraph_id": "para_691" }, { "text": "Gigaset adds that the General Court erroneously accepted that it was sufficient for the Commission to show that the MADA pre-installation conditions were capable of excluding services that were technically capable of meeting consumers’ needs, regardless of their efficiency and attractiveness. In so doing, the General Court endorsed an approach that is inconsistent with the case-law of the Court of Justice.", "paragraph_id": "para_692" }, { "text": "249", "paragraph_id": "para_693" }, { "text": "Gigaset argues that the General Court wrongly relied on user behaviour in order to conclude that those conditions actually produced exclusionary effects. Actual user choice in favour of a dominant undertaking’s product cannot, in itself, be the basis for a finding of abusive conduct, as it may simpl …", "paragraph_id": "para_694" }, { "text": "250", "paragraph_id": "para_695" }, { "text": "HMD asserts that the failure to carry out the AEC test, as the judgment under appeal shows, creates legal uncertainty. That test is, moreover, generally applicable in the context of the application of Article 102 TFEU, as is apparent from the case-law.", "paragraph_id": "para_696" }, { "text": "251", "paragraph_id": "para_697" }, { "text": "The Commission, BEUC, FairSearch and Seznam contend that this complaint is unfounded.", "paragraph_id": "para_698" }, { "text": "(3)   Third complaint", "paragraph_id": "para_699" }, { "text": "252", "paragraph_id": "para_700" }, { "text": "According to Google and Alphabet, the General Court failed, contrary to the case-law, to examine whether the opportunities that remained available for rivals were sufficient for rivals to compete viably. In so doing, it conflated the concepts of ‘significant competitive advantage’ and ‘foreclosure’, …", "paragraph_id": "para_701" }, { "text": "253", "paragraph_id": "para_702" }, { "text": "The Commission and BEUC contend that this complaint is unfounded. According to FairSearch, the complaint is inadmissible.", "paragraph_id": "para_703" }, { "text": "(b)\n  \n Second part", "paragraph_id": "para_704" }, { "text": "254", "paragraph_id": "para_705" }, { "text": "By the second part of the second ground of appeal, in which there are two complaints, Google and Alphabet argue that the General Court wrongly failed to consider whether the tying of the Chrome browser to the Play Store and to the Google Search app was capable of foreclosing as-efficient rival browsers.", "paragraph_id": "para_706" }, { "text": "255", "paragraph_id": "para_707" }, { "text": "The Commission contends, however, that the General Court did not make any error of law in concluding that the Commission was fully entitled to conclude that the tying of the Chrome browser with the Play Store and the Google Search app was capable of restricting competition.", "paragraph_id": "para_708" }, { "text": "(1)   First complaint", "paragraph_id": "para_709" }, { "text": "256", "paragraph_id": "para_710" }, { "text": "According to Google and Alphabet, the General Court erred in law in reviewing the legality of the Chrome browser tie by reference to a geographic market different from the one defined in the decision at issue. Whereas, in that decision, the Commission had accepted, in respect of that conduct, the ex …", "paragraph_id": "para_711" }, { "text": "257", "paragraph_id": "para_712" }, { "text": "According to the Commission, BEUC and FairSearch, that complaint is inadmissible and, in any event, unfounded.", "paragraph_id": "para_713" }, { "text": "(2)   Second complaint", "paragraph_id": "para_714" }, { "text": "258", "paragraph_id": "para_715" }, { "text": "In Google and Alphabet’s submission, the General Court also erred in transposing findings relating to the Google Search app tie to the Chrome browser tie by analogy, disregarding significant differences between the two tying arrangements. First, the Chrome browser was less visible or accessible than …", "paragraph_id": "para_716" }, { "text": "259", "paragraph_id": "para_717" }, { "text": "According to the Commission, BEUC and FairSearch, that second complaint is inadmissible, as it effectively challenges the factual findings of the General Court, and is in any event unfounded.", "paragraph_id": "para_718" }, { "text": "2.\n  \n Findings of the Court", "paragraph_id": "para_719" }, { "text": "260", "paragraph_id": "para_720" }, { "text": "By their second ground of appeal, Google and Alphabet maintain, in essence, that the General Court erred in law when it ruled that the Commission was not required to establish that the MADA pre-installation conditions were capable of foreclosing as-efficient rivals even though it had demonstrated this in relation to portfolio-based RSAs.", "paragraph_id": "para_721" }, { "text": "(a)\n  \n General considerations", "paragraph_id": "para_722" }, { "text": "261", "paragraph_id": "para_723" }, { "text": "As a preliminary point, it is necessary to provide clarification regarding the assessment of the capability of conduct to produce exclusionary effects for the purpose of characterising that conduct as an abuse of a dominant position, within the meaning of Article 102 TFEU.", "paragraph_id": "para_724" }, { "text": "262", "paragraph_id": "para_725" }, { "text": "According to settled case-law, the specific purpose of Article 102 TFEU is to prevent conduct of an undertaking in a dominant position that has the effect, to the detriment of consumers, of hindering, through recourse to means or resources different from those governing normal competition, maintenan …", "paragraph_id": "para_726" }, { "text": "263", "paragraph_id": "para_727" }, { "text": "On a market where the degree of competition is already weakened precisely because of the presence of one or more undertakings in a dominant position, such conduct covers any practice which, through recourse to means different from those governing normal competition between undertakings, has the effe …", "paragraph_id": "para_728" }, { "text": "264", "paragraph_id": "para_729" }, { "text": "In order to establish that an exclusionary practice is abusive, a competition authority must show that, first, that practice relied on the use of means other than those which come within the scope of competition on the merits. Second, that authority must show that that practice was capable, when imp …", "paragraph_id": "para_730" }, { "text": "265", "paragraph_id": "para_731" }, { "text": "As regards, in the first place, the condition that the conduct concerned must deviate from competition on the merits, the Court has previously clarified that the concept of competition on the merits covers, in principle, a competitive situation in which consumers benefit from lower prices, better qu …", "paragraph_id": "para_732" }, { "text": "266", "paragraph_id": "para_733" }, { "text": "In that sense, the fact that an undertaking holds a dominant position does not disqualify it from protecting its commercial interests if they are attacked, or from the right to take such reasonable steps as it deems appropriate to protect its commercial interests (see, to that effect, judgment of 30 January 2020, Generics (UK) and Others, C‑307/18 , EU:C:2020:52 , paragraphs  148 and  149 and the case-law cited).", "paragraph_id": "para_734" }, { "text": "267", "paragraph_id": "para_735" }, { "text": "Accordingly, it is not the purpose of Article 102 TFEU to prevent an undertaking from acquiring, on its own merits, a dominant position on a market, or to ensure that competitors less efficient than an undertaking in such a position should remain on the market. On the contrary, competition on the me …", "paragraph_id": "para_736" }, { "text": "268", "paragraph_id": "para_737" }, { "text": "Where a competition authority seeks to show that conduct represents a departure from competition on the merits, it may use an analysis of the capability of a hypothetical as-efficient but non-dominant competitor to replicate that conduct (see, to that effect, judgment of 12 May 2022, Servizio Elettrico Nazionale and Others, C‑377/20 , EU:C:2022:379 , paragraph  82 ).", "paragraph_id": "para_738" }, { "text": "269", "paragraph_id": "para_739" }, { "text": "However, as the Advocate General noted, in essence, in points 106 and 127 of her Opinion, certain behaviours represent, in principle, means that deviate from competition on the merits, without there being any need for such an analysis. That is the case in particular for tying that consists in offeri …", "paragraph_id": "para_740" }, { "text": "270", "paragraph_id": "para_741" }, { "text": "As regards, in the second place, the condition concerning the capability to produce exclusionary effects, as is apparent from the case-law cited in paragraph 187 of the present judgment, the competition authority must demonstrate that the conduct concerned has the actual or potential effect of restr …", "paragraph_id": "para_742" }, { "text": "271", "paragraph_id": "para_743" }, { "text": "In addition, conduct may be categorised as ‘abuse of a dominant position’ not only where it has the actual or potential effect of restricting competition on the merits by excluding equally efficient competing undertakings from the market(s) concerned, but also where it has been proven to have the ac …", "paragraph_id": "para_744" }, { "text": "272", "paragraph_id": "para_745" }, { "text": "As regards the question whether Article 102 TFEU imposes a systematic obligation on the Commission to examine the efficiency of actual or hypothetical competitors of the dominant undertaking, the Court of Justice has previously held that, admittedly, the objective of that article is not to ensure th …", "paragraph_id": "para_746" }, { "text": "273", "paragraph_id": "para_747" }, { "text": "It is true that the Court has held that that analysis may prove to be relevant for pricing practices as well as for non-pricing practices, depending on the circumstances. However, as the Advocate General noted in points 131 and 132 of her Opinion, and in accordance with the case-law recalled in para …", "paragraph_id": "para_748" }, { "text": "274", "paragraph_id": "para_749" }, { "text": "Furthermore, it is for the competition authority to demonstrate, on the basis of specific, tangible points of analysis and evidence, that the conduct concerned is capable of having exclusionary effects. As is apparent from the case-law recalled in paragraph 189 of the present judgment, that demonstr …", "paragraph_id": "para_750" }, { "text": "275", "paragraph_id": "para_751" }, { "text": "In this case, in the context of its response to the second plea at first instance, the General Court recalled the case-law which it intended to apply, in paragraphs 276 to 299 of the judgment under appeal. On that basis, it held, in paragraph 291 of that judgment, that the Commission had followed th …", "paragraph_id": "para_752" }, { "text": "276", "paragraph_id": "para_753" }, { "text": "In that regard, in paragraph 294 of the judgment under appeal, the General Court observed that the Commission had concluded that the conduct at issue had had the effect, inter alia, of making it harder for competing search services to gain search queries and the revenues and data needed to improve t …", "paragraph_id": "para_754" }, { "text": "277", "paragraph_id": "para_755" }, { "text": "As the Advocate General noted in points 112 to 124 of her Opinion, the General Court dismissed Google and Alphabet’s argument criticising the Commission for having failed to establish that the MADA pre-installation conditions restricted competition. Thus, it rejected the arguments relating to the ex …", "paragraph_id": "para_756" }, { "text": "278", "paragraph_id": "para_757" }, { "text": "In the grounds of the judgment under appeal, the General Court did not depart from the case-law recalled in paragraphs 261 to 274 of the present judgment. In particular, contrary to Google and Alphabet’s claims, the General Court was not required to verify whether the Commission had indeed demonstra …", "paragraph_id": "para_758" }, { "text": "279", "paragraph_id": "para_759" }, { "text": "The second ground of appeal must be assessed in the light of those general considerations and the resulting interim conclusions.", "paragraph_id": "para_760" }, { "text": "(b)\n  \n First part", "paragraph_id": "para_761" }, { "text": "280", "paragraph_id": "para_762" }, { "text": "The first part of the second ground of appeal concerns the General Court’s alleged failure to consider whether the tying of the Google Search app with the Play Store app was capable of foreclosing the general search services of as-efficient rivals.", "paragraph_id": "para_763" }, { "text": "281", "paragraph_id": "para_764" }, { "text": "This part consists of three complaints, alleging that the Commission should have (i) considered the impact of the conduct at issue in the light of its coverage, duration and operation; (ii) conducted that analysis by reference to hypothetical as-efficient rivals; and (iii) determined whether that conduct deprived such rivals of opportunities to compete effectively with Google on the market for general search services.", "paragraph_id": "para_765" }, { "text": "282", "paragraph_id": "para_766" }, { "text": "In that regard, it should be noted that Google and Alphabet rely on the premiss that the General Court should have applied the same test when assessing the effects of the MADA conditions and when assessing the effects of portfolio-based RSAs. In the context of their three complaints, Google and Alph …", "paragraph_id": "para_767" }, { "text": "283", "paragraph_id": "para_768" }, { "text": "In its examination of those complaints, the General Court assessed the decision at issue in the light of specific case-law, summarised in paragraphs 637 to 647 of the judgment under appeal, relating to the capability of an exclusivity payment, such as the portfolio-based RSAs, to foreclose competitors that are at least as efficient; that exclusionary capability was assessed using the AEC test.", "paragraph_id": "para_769" }, { "text": "284", "paragraph_id": "para_770" }, { "text": "However, it is apparent from paragraph 272 of the present judgment that the AEC test or even, more generally, the capability to foreclose an as-efficient competitor is not the only criterion by which conduct may be characterised as being contrary to Article 102 TFEU. The General Court cannot therefo …", "paragraph_id": "para_771" }, { "text": "285", "paragraph_id": "para_772" }, { "text": "Thus, it must be held that all of the complaints in the first part of the second ground of appeal are based on an incorrect premiss, rendering them ineffective.", "paragraph_id": "para_773" }, { "text": "(c)\n  \n Second part", "paragraph_id": "para_774" }, { "text": "286", "paragraph_id": "para_775" }, { "text": "By the second part of the second ground of appeal, Google and Alphabet argue that the General Court erred in failing to consider whether the tying of the Chrome browser to the Play Store and to the Google Search app was capable of foreclosing as-efficient rival browsers.", "paragraph_id": "para_776" }, { "text": "287", "paragraph_id": "para_777" }, { "text": "For the same reasons as those set out in paragraphs 282 to 285 of the present judgment, all of the complaints in that second part must be rejected as being ineffective in that they are based on the incorrect premiss that the General Court should have assessed the capability of the MADA pre-installation conditions by reference to a hypothetical as-efficient competitor.", "paragraph_id": "para_778" }, { "text": "288", "paragraph_id": "para_779" }, { "text": "In any event, those complaints are inadmissible.", "paragraph_id": "para_780" }, { "text": "289", "paragraph_id": "para_781" }, { "text": "With regard to the first complaint, Google and Alphabet submit that the General Court, like the Commission, took account of only a single sub-segment of the relevant geographic market when assessing the capability of the tying concerned to restrict competition in that market. Since the appellants di …", "paragraph_id": "para_782" }, { "text": "290", "paragraph_id": "para_783" }, { "text": "As regards the second complaint, Google and Alphabet submit that the General Court erroneously transposed findings relating to the Google Search app tie to the Chrome browser tie ‘by analogy’ despite significant differences between those ties. More particularly, the appellants challenge five factual …", "paragraph_id": "para_784" }, { "text": "291", "paragraph_id": "para_785" }, { "text": "However, as noted in paragraph 216 of the present judgment, an appeal lies on points of law only. The General Court alone has jurisdiction to establish and assess the relevant facts and to evaluate the evidence. The assessment of those facts and that evidence does not therefore constitute, save in the case of their distortion, a question of law subject, as such, to review by the Court of Justice in the context of an appeal.", "paragraph_id": "para_786" }, { "text": "292", "paragraph_id": "para_787" }, { "text": "In so far as Google and Alphabet do not claim any distortion of the evidence supporting the factual findings which they contest, that complaint must be rejected as inadmissible, as, accordingly, must the second part of the second ground of appeal in its entirety.", "paragraph_id": "para_788" }, { "text": "293", "paragraph_id": "para_789" }, { "text": "In the light of all of the foregoing considerations, the second ground of appeal must be rejected in its entirety.", "paragraph_id": "para_790" }, { "text": "C.   Third ground of appeal", "paragraph_id": "para_791" }, { "text": "1.\n  \n Arguments of the parties", "paragraph_id": "para_792" }, { "text": "294", "paragraph_id": "para_793" }, { "text": "By their third ground of appeal, Google and Alphabet complain that the General Court erred in law by substituting its own assessment in relation to the abuse finding for that contained in the decision at issue concerning OEMs and attributing the alleged exclusionary effects to conduct which the Commission did not find to have been abusive.", "paragraph_id": "para_794" }, { "text": "(a)\n  \n First part", "paragraph_id": "para_795" }, { "text": "295", "paragraph_id": "para_796" }, { "text": "According to Google and Alphabet, the Commission found, in Article 1(1)(c) of the decision at issue, that they had infringed Article 102 TFEU by making the licensing of the Play Store and the Google Search app conditional on the anti-fragmentation obligations.", "paragraph_id": "para_797" }, { "text": "296", "paragraph_id": "para_798" }, { "text": "They submit that, first, while the General Court acknowledged, in paragraph 828 of the judgment under appeal, that the only provision considered to be abusive in the decision at issue was the provision making the licensing of the Play Store and the Google Search app conditional on OEMs agreeing not …", "paragraph_id": "para_799" }, { "text": "297", "paragraph_id": "para_800" }, { "text": "Google and Alphabet argue that, by thus ‘rewriting’ the decision at issue, the General Court erred in upholding the abuse finding in that decision by reference to conduct that went beyond the obligation which the Commission had found to be abusive.", "paragraph_id": "para_801" }, { "text": "298", "paragraph_id": "para_802" }, { "text": "They claim that it was inappropriate for the General Court to dismiss their action on the basis of Google’s commercial policy of licensing its proprietary APIs only for use on compatible Google Android devices when the Commission, in the decision at issue, and the General Court, in paragraphs 810 an …", "paragraph_id": "para_803" }, { "text": "299", "paragraph_id": "para_804" }, { "text": "Second, Google and Alphabet criticise the General Court for finding that the Commission was not required to identify the specific clauses that restricted competition among the baseline Android compatibility standards with which AFA signatories were required to comply.", "paragraph_id": "para_805" }, { "text": "300", "paragraph_id": "para_806" }, { "text": "The General Court had, in that regard, ignored the Commission’s error, stating, in paragraph 864 of the judgment under appeal, that the criticisms levelled at Google in the decision at issue did not concern the content of the compatibility obligations defined by Google, but Google’s practice aimed a …", "paragraph_id": "para_807" }, { "text": "301", "paragraph_id": "para_808" }, { "text": "In support of the arguments put forward by Google and Alphabet, ADA and HMD submit that, by making a finding of abuse that was wider than that found in the decision at issue, the General Court exceeded the limits of its judicial review, substituting its own assessment for that of the Commission.", "paragraph_id": "para_809" }, { "text": "302", "paragraph_id": "para_810" }, { "text": "ADA refers in that respect to three key aspects of the abuse found in the decision at issue. First, the legal and factual analysis in that decision was entirely based on Article 102(d) TFEU and on the judgment of the General Court of 17 September 2007, Microsoft v Commission ( T‑201/04 , EU:T:2007:2 …", "paragraph_id": "para_811" }, { "text": "303", "paragraph_id": "para_812" }, { "text": "In accordance with the case-law of the Court of Justice, as it appears in the judgments of 6 April 1995, RTE and ITP v Commission ( C‑241/91 P and C‑242/91 P , EU:C:1995:98 , paragraphs  49 and  50 ), and of 26 November 1998, Bronner ( C‑7/97 , EU:C:1998:569 , paragraph  39 ), a refusal to license i …", "paragraph_id": "para_813" }, { "text": "304", "paragraph_id": "para_814" }, { "text": "The General Court had also made two further errors by ruling, in paragraph 854 of the judgment under appeal, that the exercise of an exclusive right linked to an intellectual property right cannot be accepted when its purpose is precisely to strengthen the dominant position of the party engaging in …", "paragraph_id": "para_815" }, { "text": "305", "paragraph_id": "para_816" }, { "text": "The Commission contends that the present ground of appeal is ineffective and, in any event, unfounded.", "paragraph_id": "para_817" }, { "text": "306", "paragraph_id": "para_818" }, { "text": "It argues that it is ineffective because it is based on the erroneous premiss that the General Court ‘rewrote’ the characterisation, in the decision at issue, of Google’s abusive conduct. That ‘rewriting’ is the basis for Google and Alphabet’s claim, in the second part of the third ground of appeal, that the General Court erred in its assessment of the causal link between the ‘rewritten’ conduct and the capability of that conduct to restrict competition.", "paragraph_id": "para_819" }, { "text": "307", "paragraph_id": "para_820" }, { "text": "However, according to the Commission, first, it is apparent from paragraph 855 of the judgment under appeal that Google’s choice not to license its proprietary APIs to developers of incompatible Android forks was taken into account, in the assessment of the capability of anti-fragmentation obligatio …", "paragraph_id": "para_821" }, { "text": "308", "paragraph_id": "para_822" }, { "text": "Google and Alphabet’s claim that the General Court had found a broader practice to be abusive than that taken into account in the decision at issue was based on two isolated passages of the judgment under appeal, namely the last sentence of paragraph 828 and paragraph 864 of that judgment. However, …", "paragraph_id": "para_823" }, { "text": "309", "paragraph_id": "para_824" }, { "text": "In support of the Commission’s arguments, FairSearch adds, referring to the judgment of 27 January 2000, DIR International Film and Others v Commission ( C‑164/98 P , EU:C:2000:48 , paragraph  42 ), that the General Court is, in any case, allowed to interpret a decision of the Commission provided th …", "paragraph_id": "para_825" }, { "text": "310", "paragraph_id": "para_826" }, { "text": "Seznam contends also that the statement in paragraph 828 of the judgment under appeal is not a ‘finding’ made by the General Court, but a reference to what the Commission had already established in the decision at issue, namely that the obligation preventing the development and market presence of de …", "paragraph_id": "para_827" }, { "text": "(b)\n  \n Second part", "paragraph_id": "para_828" }, { "text": "311", "paragraph_id": "para_829" }, { "text": "Google and Alphabet complain that the General Court, first, erred in law when it held, in paragraph 893 of the judgment under appeal, that a counterfactual analysis served no purpose.", "paragraph_id": "para_830" }, { "text": "312", "paragraph_id": "para_831" }, { "text": "In their view, without such an analysis, it was not possible to conclude that the alleged potential effects on incompatible forks were attributable to the conduct at issue, that is, the conditioning of a licence to the Play Store and the Google Search app on an OEM signing an AFA.", "paragraph_id": "para_832" }, { "text": "313", "paragraph_id": "para_833" }, { "text": "They argue that the relevant question is what the position of incompatible forks would have been had Google not made licensing of the Play Store and the Google Search app conditional on OEMs signing an AFA. In their submission, it is apparent from the General Court’s assessment in paragraph 856 of t …", "paragraph_id": "para_834" }, { "text": "314", "paragraph_id": "para_835" }, { "text": "Second, while Google and Alphabet had explained before the General Court that the development of incompatible forks, such as Fire OS, had failed for reasons other than OEMs signing the AFAs, the General Court had failed to analyse whether Fire OS’ failure was attributable to the anti-fragmentation obligations.", "paragraph_id": "para_836" }, { "text": "315", "paragraph_id": "para_837" }, { "text": "The General Court had thus again failed to conduct any kind of analysis of causation while stating explicitly, in paragraph 850 of the judgment under appeal, that it was choosing not to examine whether ‘[reasons other]’ than Google’s requirement for OEMs to sign an AFA in order to obtain a licence f …", "paragraph_id": "para_838" }, { "text": "316", "paragraph_id": "para_839" }, { "text": "Google and Alphabet maintain, moreover, that, in the present case, there could not even be any doubt since the General Court had already held that access to Google’s proprietary APIs was commercially important, and, in the General Court’s view, sufficient to mean that an incompatible Android variant …", "paragraph_id": "para_840" }, { "text": "317", "paragraph_id": "para_841" }, { "text": "ADA and HMD also submit that the General Court erred in law when it found that the Commission was not obliged to carry out a counterfactual analysis, which would have enabled it to assess the conditions of competition in the absence of the conduct at issue.", "paragraph_id": "para_842" }, { "text": "318", "paragraph_id": "para_843" }, { "text": "The Commission counters that Google and Alphabet are wrong to claim that the General Court erred in upholding the findings of the decision at issue that the anti-fragmentation obligations were capable of restricting competition.", "paragraph_id": "para_844" }, { "text": "319", "paragraph_id": "para_845" }, { "text": "According to FairSearch, the second part of the third ground of appeal is inadmissible because Google and Alphabet are seeking to debate the General Court’s findings of fact as to the reasons why the development of incompatible forks failed.", "paragraph_id": "para_846" }, { "text": "2.\n  \n Findings of the Court", "paragraph_id": "para_847" }, { "text": "(a)\n  \n First part", "paragraph_id": "para_848" }, { "text": "320", "paragraph_id": "para_849" }, { "text": "Google and Alphabet submit that, in examining their fourth plea at first instance, alleging that the finding that it was abusive for Google to make Play Store and Google Search app licences conditional on compliance with the anti-fragmentation obligations was incorrect, the General Court considered …", "paragraph_id": "para_850" }, { "text": "321", "paragraph_id": "para_851" }, { "text": "They claim that, in so doing, the General Court ‘rewrote’ the decision at issue by reference to conduct that went beyond that which the Commission had found to be abusive, in Article 1(1)(c) of that decision. It would, in that regard, be inappropriate to penalise Google on the basis of its commercia …", "paragraph_id": "para_852" }, { "text": "322", "paragraph_id": "para_853" }, { "text": "Google and Alphabet’s reasoning is therefore based on the premiss that one of the abuses found by the Commission in the decision at issue has been extensively reformulated, which constitutes an error of law.", "paragraph_id": "para_854" }, { "text": "323", "paragraph_id": "para_855" }, { "text": "In that regard, it must be pointed out that, in reviewing the legality of acts under Article 263 TFEU, the Court of Justice and the General Court have jurisdiction in actions brought on grounds of lack of competence, infringement of an essential procedural requirement, infringement of the Treaty or …", "paragraph_id": "para_856" }, { "text": "324", "paragraph_id": "para_857" }, { "text": "Nonetheless, except where there is no material factor to justify that course of action, the General Court may be led, in proceedings for annulment, to interpret the reasoning of the contested measure in a manner which differs from that of its author, and even, in certain circumstances, to reject the …", "paragraph_id": "para_858" }, { "text": "325", "paragraph_id": "para_859" }, { "text": "Accordingly, while the terminology used by the General Court in the judgment under appeal differs from that of the decision at issue, it does not necessarily follow that the General Court identified abusive conduct that was substantively different from that identified by the Commission, or that it r …", "paragraph_id": "para_860" }, { "text": "326", "paragraph_id": "para_861" }, { "text": "In the present case, it must be noted, first, that the sentence in paragraph 828 of the judgment under appeal that is criticised by Google and Alphabet represents a conclusion. It cannot, therefore, be read independently of the rest of that paragraph.", "paragraph_id": "para_862" }, { "text": "327", "paragraph_id": "para_863" }, { "text": "That paragraph begins, first of all, with a formulation of the Commission’s complaint that the licensing of the Play Store and Google Search app is made conditional on a set of obligations that restrict the freedom of OEMs wishing to obtain those licences, specifically in so far as they prohibit OEMs from marketing any other device running a non-compatible Android fork.", "paragraph_id": "para_864" }, { "text": "328", "paragraph_id": "para_865" }, { "text": "It goes on to state that ‘that restriction stems from the AFAs and, in so far as it applies to smart mobile devices on which Google’s apps are not pre-installed, is the only obligation that is considered in the [decision at issue] to be abusive. The Commission does not dispute Google’s right to impo …", "paragraph_id": "para_866" }, { "text": "329", "paragraph_id": "para_867" }, { "text": "The General Court inferred from this, lastly, that it was necessary to examine whether the Commission had succeeded in establishing, as it found in the decision at issue, that Google had implemented a practice designed to exclude non-compatible Android forks, and whether that practice could be classified as anticompetitive for the purposes of Article 102 TFEU.", "paragraph_id": "para_868" }, { "text": "330", "paragraph_id": "para_869" }, { "text": "Second, paragraph 828 of the judgment under appeal marks the start of the General Court’s analysis of the first part of the fourth plea at first instance, by which it was alleged that the finding that it was abusive for Play Store and Google Search app licences to have been made conditional on compl …", "paragraph_id": "para_870" }, { "text": "331", "paragraph_id": "para_871" }, { "text": "It follows from these preliminary observations that Google and Alphabet’s claim concerning the alleged reformulation of the abuse referred to must be examined in the light of the whole of paragraph 828 of the judgment under appeal and of that summary.", "paragraph_id": "para_872" }, { "text": "332", "paragraph_id": "para_873" }, { "text": "Among the reasons set out by the Commission in recital 1036 of the decision at issue, the General Court identified, in paragraph 816 of the judgment under appeal, the fact that the anti-fragmentation obligations hinder the development of non-compatible Android forks; the fact that Android-compatible …", "paragraph_id": "para_874" }, { "text": "333", "paragraph_id": "para_875" }, { "text": "As the Advocate General noted, in essence, in points 175 and 176 of her Opinion, it follows from paragraph 816 of the judgment under appeal, which has not been contested by Google and Alphabet in their appeal, that the Commission actually criticised Google for having adopted a practice aimed at excl …", "paragraph_id": "para_876" }, { "text": "334", "paragraph_id": "para_877" }, { "text": "By analysing whether the Commission had established this state of affairs to the requisite legal standard, the General Court did not, therefore, substitute its own reasoning for that set out in the decision at issue.", "paragraph_id": "para_878" }, { "text": "335", "paragraph_id": "para_879" }, { "text": "It follows that while the terminology used in the last sentence of paragraph 828 of the judgment under appeal does indeed differ from that used in Article 1(1)(c) of the decision at issue, it cannot be concluded that the General Court thereby identified abusive conduct that differs from that established by the Commission in that decision.", "paragraph_id": "para_880" }, { "text": "336", "paragraph_id": "para_881" }, { "text": "In addition, although the terms of Article 1(1)(c) of that decision refer only to Google’s conduct in making the licensing of the Play Store and the Google Search app conditional on the anti-fragmentation obligations, it is apparent from that decision and from the judgment under appeal that the comp …", "paragraph_id": "para_882" }, { "text": "337", "paragraph_id": "para_883" }, { "text": "The importance of that contextual element in the analysis of the second abuse identified in the decision at issue can, in the first place, be inferred from paragraphs 855 and 856 of the judgment under appeal. Paragraph 855 confirms that access to Google’s proprietary APIs was of strategic interest t …", "paragraph_id": "para_884" }, { "text": "338", "paragraph_id": "para_885" }, { "text": "In the second place, the General Court’s ‘preliminary observations on the scope of the second abuse identified in the [decision at issue]’, in paragraphs 803 to 814 of the judgment under appeal, confirm the importance of that contextual element and, consequently, the absence of any error of law in the General Court’s paraphrasing of the conclusion in paragraph 828 of that judgment.", "paragraph_id": "para_886" }, { "text": "339", "paragraph_id": "para_887" }, { "text": "It is, first of all, expressly confirmed in paragraph 809 of that judgment that, ‘according to the [decision at issue], Google has … abused its dominant position … by making the licence for the Play Store and Google Search conditional on acceptance of the anti-fragmentation obligations’. The General …", "paragraph_id": "para_888" }, { "text": "340", "paragraph_id": "para_889" }, { "text": "Those contextual elements also show that what the Commission refers to as the second abuse identified in the decision at issue consists in the very fact of having required that all the technical standards defined in this instance in the CDD be applied, including to devices on which proprietary apps …", "paragraph_id": "para_890" }, { "text": "341", "paragraph_id": "para_891" }, { "text": "It follows from all of the foregoing considerations that the first part of the third ground of appeal must be rejected as unfounded.", "paragraph_id": "para_892" }, { "text": "(b)\n  \n Second part", "paragraph_id": "para_893" }, { "text": "342", "paragraph_id": "para_894" }, { "text": "Google and Alphabet submit that the General Court erred in law when it held, in paragraph 893 of the judgment under appeal, that the Commission was not required to carry out a counterfactual analysis to evaluate the hypothetical consequences that might have been observed, in the absence of the second abuse, in so far as the existence of the restrictions at issue and of their effects on competition had been sufficiently demonstrated.", "paragraph_id": "para_895" }, { "text": "343", "paragraph_id": "para_896" }, { "text": "In that regard, as has been noted in paragraph 225 of the present judgment, while the Commission is required to establish a causal link between the contested abusive behaviour and its anticompetitive effects, it may nevertheless, in that context, rely on a range of evidence, without being required systematically to use any single methodology, in particular a counterfactual analysis.", "paragraph_id": "para_897" }, { "text": "344", "paragraph_id": "para_898" }, { "text": "In the present case the General Court found, first, in paragraph 834 of the judgment under appeal, that the material existence of the practice considered by the Commission, in the decision at issue, to constitute the second abuse was not only admitted by Google and Alphabet but was also established. …", "paragraph_id": "para_899" }, { "text": "345", "paragraph_id": "para_900" }, { "text": "In order to justify the need for a counterfactual analysis, Google and Alphabet submit that Google’s policy in relation to the development and distribution of its proprietary APIs would in any event have provided OEMs with an incentive to distribute only compatible Google Android devices. They take …", "paragraph_id": "para_901" }, { "text": "346", "paragraph_id": "para_902" }, { "text": "In that regard, it must be noted that Google and Alphabet do not criticise the other findings of the General Court, such as those relating to the failure of the Aliyun OS developed by Alibaba, which culminated in the findings recalled in paragraph 344 of the present judgment and, ultimately, in confirmation that the actual foreclosure of non-compatible Android forks and the anticompetitive effects of that foreclosure had been demonstrated.", "paragraph_id": "para_903" }, { "text": "347", "paragraph_id": "para_904" }, { "text": "Furthermore, by their arguments relating to the General Court’s assessment of Google’s policy in relation to the development and distribution of proprietary APIs and the failure of Fire OS, Google and Alphabet seek, in reality, to obtain a new assessment of the facts and the evidence, which has already been conducted by the General Court.", "paragraph_id": "para_905" }, { "text": "348", "paragraph_id": "para_906" }, { "text": "However, as noted in paragraph 216 of the present judgment, an appeal lies on points of law only. In the absence of a claim of any kind of distortion, the arguments put forward by Google and Alphabet in support of the alleged need for a counterfactual analysis are therefore inadmissible.", "paragraph_id": "para_907" }, { "text": "349", "paragraph_id": "para_908" }, { "text": "Having regard to all of the above reasons, the second part of the third ground of appeal must be rejected as, in part, unfounded and, in part, inadmissible. Accordingly, the third ground of appeal must be rejected in its entirety.", "paragraph_id": "para_909" }, { "text": "D.   Fourth ground of appeal", "paragraph_id": "para_910" }, { "text": "1.\n  \n Arguments of the parties", "paragraph_id": "para_911" }, { "text": "350", "paragraph_id": "para_912" }, { "text": "By their fourth ground of appeal, Google and Alphabet complain that the General Court failed to take account of and to conduct a concrete examination of the arguments which they put forward and the evidence which they adduced in order to show that the anti-fragmentation obligations were objectively justified.", "paragraph_id": "para_913" }, { "text": "351", "paragraph_id": "para_914" }, { "text": "In particular, they claim that the General Court made four errors.", "paragraph_id": "para_915" }, { "text": "352", "paragraph_id": "para_916" }, { "text": "In their submission, first, the General Court failed to examine the need for the anti-fragmentation obligations. In paragraph 880 of the judgment under appeal, the General Court merely relied on the evidence of the Android OS’s actual growth to support its conclusion that that platform did not face …", "paragraph_id": "para_917" }, { "text": "353", "paragraph_id": "para_918" }, { "text": "Second, it failed to consider Google’s legitimate interest in protecting the entire Android ecosystem, including devices not incorporating Google’s proprietary apps. The General Court considered, in paragraph 878 of that judgment, that the justification put forward by Google and Alphabet was unrelat …", "paragraph_id": "para_919" }, { "text": "354", "paragraph_id": "para_920" }, { "text": "Third, the General Court erred in upholding the decision at issue although the Commission had failed properly to assess the conditions under which Google adopted an open-source licence for the Android OS. The General Court held, in paragraph 886 of that judgment, that Google had made a ‘choice’ to a …", "paragraph_id": "para_921" }, { "text": "355", "paragraph_id": "para_922" }, { "text": "Fourth, the General Court failed properly to assess the evidence regarding the AFAs’ necessity, given the inadequacy of a solution involving the registration of trade marks that would reserve the name ‘Android’ for them. The General Court merely stated, in that regard, in paragraph 883 of that judgm …", "paragraph_id": "para_923" }, { "text": "356", "paragraph_id": "para_924" }, { "text": "Gigaset acknowledges that the obligation to state reasons does not require the General Court to provide an account which follows exhaustively and one by one all the arguments put forward by Google and Alphabet. Nevertheless, it contends that their arguments concerning the Commission’s assessment of …", "paragraph_id": "para_925" }, { "text": "357", "paragraph_id": "para_926" }, { "text": "It submits, furthermore, that the General Court also erred in law when it refused to examine Google and Alphabet’s argument that a solution consisting in the registration of trade marks that would reserve the name ‘Android’ for them would not be sufficient to avoid confusion between CDD-compatible and non-CDD-compatible devices.", "paragraph_id": "para_927" }, { "text": "358", "paragraph_id": "para_928" }, { "text": "HMD reproduces, in essence, the arguments put forward by Google and Alphabet.", "paragraph_id": "para_929" }, { "text": "359", "paragraph_id": "para_930" }, { "text": "The Commission and FairSearch contend that the fourth ground of appeal is inadmissible because, under the guise of relying on an error of law, Google and Alphabet challenge the General Court’s factual findings regarding the lack of necessity of the anti-fragmentation obligations. In addition, they s …", "paragraph_id": "para_931" }, { "text": "2.\n  \n Findings of the Court", "paragraph_id": "para_932" }, { "text": "360", "paragraph_id": "para_933" }, { "text": "By their fourth ground of appeal, Google and Alphabet claim that the General Court erred in its assessment of the objective justifications for the AFAs.", "paragraph_id": "para_934" }, { "text": "361", "paragraph_id": "para_935" }, { "text": "In that regard, it should be recalled, as a preliminary point, that it is for the undertaking that is in a dominant position to provide justification for behaviour that is liable to be caught by the prohibition under Article 102 TFEU (see, to that effect, judgments of 15 March 2007, British Airways v Commission, C‑95/04 P , EU:C:2007:166 , paragraph  69 , and of 27 March 2012, Post Danmark, C‑209/10 , EU:C:2012:172 , paragraph  40 and the case-law cited).", "paragraph_id": "para_936" }, { "text": "362", "paragraph_id": "para_937" }, { "text": "In particular, such an undertaking may demonstrate, for that purpose, either that its conduct is objectively necessary, or that the exclusionary effect produced may be counterbalanced, outweighed even, by advantages in terms of efficiency that also benefit consumers. In that last regard, it is for t …", "paragraph_id": "para_938" }, { "text": "363", "paragraph_id": "para_939" }, { "text": "On that basis, Google and Alphabet raised a number of arguments before the General Court to show that the Commission had failed to take account of the procompetitive nature of the anti-fragmentation obligations, which were necessary to protect the integrity and quality of the Android OS against the …", "paragraph_id": "para_940" }, { "text": "364", "paragraph_id": "para_941" }, { "text": "By the fourth ground of appeal, Google and Alphabet put forward four complaints in respect of that examination.", "paragraph_id": "para_942" }, { "text": "365", "paragraph_id": "para_943" }, { "text": "First, they argue that the General Court failed to examine the necessity of the anti-fragmentation obligations to facilitate compatibility among Google Android devices and to help to protect the quality and integrity of the Android OS against the risks of fragmentation. Second, in their view, the Ge …", "paragraph_id": "para_944" }, { "text": "366", "paragraph_id": "para_945" }, { "text": "Google and Alphabet nevertheless end the summary of each of those four complaints by accusing the General Court of the same error of law. They claim that the General Court failed, in the judgment under appeal, to take account of or to conduct a concrete examination of all the factors relevant to establishing whether the anti-fragmentation obligations were objectively justified.", "paragraph_id": "para_946" }, { "text": "367", "paragraph_id": "para_947" }, { "text": "However, as noted in paragraph 348 of the present judgment, an appeal lies on points of law only, the General Court alone having jurisdiction to establish and assess the relevant facts and to evaluate the evidence. The assessment of those facts and that evidence does not therefore constitute, save in the case of their distortion, a question of law subject, as such, to review by the Court of Justice in the context of an appeal.", "paragraph_id": "para_948" }, { "text": "368", "paragraph_id": "para_949" }, { "text": "In the present case, it must be noted, in the first place, that Google and Alphabet do not claim any distortion of the facts or evidence examined by the General Court, save for a single reference, in their written submissions, to a distortion of the evidence relating to the ineffectiveness of the de …", "paragraph_id": "para_950" }, { "text": "369", "paragraph_id": "para_951" }, { "text": "Where an appellant alleges distortion of the evidence by the General Court, that party must, pursuant to Article 256 TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and Article 168(1)(d) of the Rules of Procedure of the Court of Justice, indicate …", "paragraph_id": "para_952" }, { "text": "370", "paragraph_id": "para_953" }, { "text": "In the second place, it should be noted that the arguments put forward by Google and Alphabet in support of the four complaints raised under the fourth ground of appeal refer to paragraphs 880, 878, 886 and 883, respectively, of the judgment under appeal and are based on a partial reading of the Gen …", "paragraph_id": "para_954" }, { "text": "371", "paragraph_id": "para_955" }, { "text": "It follows from the foregoing that the fourth ground of appeal must be rejected as inadmissible.", "paragraph_id": "para_956" }, { "text": "E.   Fifth ground of appeal", "paragraph_id": "para_957" }, { "text": "1.\n  \n Arguments of the parties", "paragraph_id": "para_958" }, { "text": "372", "paragraph_id": "para_959" }, { "text": "By their fifth ground of appeal, Google and Alphabet criticise the General Court for erroneously upholding the findings in the decision at issue relating to the single and continuous infringement despite the annulment of that decision in relation to portfolio-based RSAs.", "paragraph_id": "para_960" }, { "text": "373", "paragraph_id": "para_961" }, { "text": "They submit that it is apparent from the case-law that partial annulment of a Commission decision is possible only if the annulled elements can be severed from the remainder of the decision. That is not the case where partial annulment would alter the substance of the measure. As it is, the decision …", "paragraph_id": "para_962" }, { "text": "374", "paragraph_id": "para_963" }, { "text": "They argue that the General Court should in fact have assessed whether the annulment of one of the findings of infringement would alter the substance of the finding of a single and continuous infringement. Hence, there are essentially four defects in that respect in the judgment under appeal. First, …", "paragraph_id": "para_964" }, { "text": "375", "paragraph_id": "para_965" }, { "text": "CCIA supports the arguments put forward by Google and Alphabet, in particular as regards the claim that the General Court substituted its own reasoning for that of the Commission as set out in the decision at issue.", "paragraph_id": "para_966" }, { "text": "376", "paragraph_id": "para_967" }, { "text": "The Commission contends that the General Court was fully entitled not to annul the decision at issue in its entirety. It submits that the fifth ground of appeal is both inadmissible, in that it is a new plea, and ineffective, in that the remaining infringements, beyond that which was annulled, subsist. This ground of appeal is in any event unfounded, according to the Commission.", "paragraph_id": "para_968" }, { "text": "2.\n  \n Findings of the Court", "paragraph_id": "para_969" }, { "text": "377", "paragraph_id": "para_970" }, { "text": "By their fifth ground of appeal, Google and Alphabet claim, in essence, that the General Court did not draw the appropriate conclusions from the annulment of the decision at issue as regards the portfolio-based RSAs. They argue that that decision was based on the finding of a single and continuous i …", "paragraph_id": "para_971" }, { "text": "378", "paragraph_id": "para_972" }, { "text": "As a preliminary point, as regards, first, the allegedly novel nature of that plea, in that Google and Alphabet did not challenge at first instance the conclusion in the decision at issue that the MADA pre-installation conditions, the anti-fragmentation obligations and the portfolio-based RSAs const …", "paragraph_id": "para_973" }, { "text": "379", "paragraph_id": "para_974" }, { "text": "Second, as regards the allegedly ineffective nature of this ground of appeal, the Commission contends that even if it were deemed to be well founded, it could only lead to the remaining separate abuses, taken together, failing to constitute a single and continuous infringement. Accordingly, such a finding would not be sufficient to justify setting aside the judgment under appeal in its entirety, since those abuses are not affected by the same ground of appeal.", "paragraph_id": "para_975" }, { "text": "380", "paragraph_id": "para_976" }, { "text": "However, it must be held that in so far as the General Court based the calculation of the fine on the premiss of a single and continuous infringement, merely disputing the existence of such an infringement is sufficient for part of the operative part of the judgment under appeal to be called into question. The Commission’s arguments on that point must therefore be rejected.", "paragraph_id": "para_977" }, { "text": "381", "paragraph_id": "para_978" }, { "text": "As to the substance, it must be observed, on the one hand, that an infringement of Article 102 TFEU can result not only from an isolated act, but also from a series of acts or from continuous conduct, even if one or more aspects of that series of acts or continuous conduct could also, in themselves …", "paragraph_id": "para_979" }, { "text": "382", "paragraph_id": "para_980" }, { "text": "On the other hand, according to settled case-law, partial annulment of an act of EU law is possible only if the elements which it is sought to have annulled can be severed from the remainder of the measure. That requirement is not satisfied where the partial annulment of a measure would cause the su …", "paragraph_id": "para_981" }, { "text": "383", "paragraph_id": "para_982" }, { "text": "In the present case, the General Court annulled Articles 1, 3 and 4 of the decision at issue in so far as they concern the fourth abuse of the single and continuous infringement relating to the portfolio-based RSAs. It also took account of that partial annulment by varying Article 2 of the decision so as to reduce the fine imposed.", "paragraph_id": "para_983" }, { "text": "384", "paragraph_id": "para_984" }, { "text": "While the Commission was unable, according to the General Court, to show that the portfolio-based RSAs were abusive, the General Court nevertheless considered that the finding of a single and continuous infringement should stand.", "paragraph_id": "para_985" }, { "text": "385", "paragraph_id": "para_986" }, { "text": "It must be held, as did the General Court, first, that in so far as each of the forms of conduct at issue was characterised as a separate, autonomous infringement in the decision at issue and, taken together, those forms of conduct were characterised as a single and continuous infringement, the fact …", "paragraph_id": "para_987" }, { "text": "386", "paragraph_id": "para_988" }, { "text": "As the Advocate General noted in point 212 of her Opinion, the General Court found, in particular, in paragraphs 1021 to 1023 and 1025 of the judgment under appeal, that the factual circumstances of the established infringements show that the first, second and third restrictions at issue, that is, t …", "paragraph_id": "para_989" }, { "text": "387", "paragraph_id": "para_990" }, { "text": "Notwithstanding the partial annulment of the decision at issue as to the abusive nature of the portfolio-based RSAs, the General Court found, in view of the available evidence, that that overall strategy remained in effect and that it constituted an overall plan, within the meaning of the case-law cited in paragraph 381 of the present judgment.", "paragraph_id": "para_991" }, { "text": "388", "paragraph_id": "para_992" }, { "text": "The severability of the finding in relation to portfolio-based RSAs cannot therefore be called into question; the General Court was therefore fully entitled partially to annul the decision at issue while retaining the classification of a single and continuous infringement used in that decision.", "paragraph_id": "para_993" }, { "text": "389", "paragraph_id": "para_994" }, { "text": "As regards, second, the more specific arguments put forward by Google and Alphabet in the fifth ground of appeal, it is necessary first to clarify, as has already been established in paragraph 197 of the present judgment, that the General Court was entitled to take account of the RSAs, irrespective …", "paragraph_id": "para_995" }, { "text": "390", "paragraph_id": "para_996" }, { "text": "Second, Google and Alphabet cannot criticise the General Court for having set out, in paragraphs 1027 and 1028 of the judgment under appeal, contextual elements mentioned by the decision at issue such as Google’s agreement with Apple or the limited choice available to search engine users. Those cont …", "paragraph_id": "para_997" }, { "text": "391", "paragraph_id": "para_998" }, { "text": "In the light of the foregoing considerations, the fifth ground of appeal must be rejected as unfounded.", "paragraph_id": "para_999" }, { "text": "F.   Sixth ground of appeal", "paragraph_id": "para_1000" }, { "text": "1.\n  \n Arguments of the parties", "paragraph_id": "para_1001" }, { "text": "392", "paragraph_id": "para_1002" }, { "text": "By their sixth ground of appeal, Google and Alphabet complain that the General Court made four errors of law in exercising its unlimited jurisdiction. They submit that the General Court increased the amount of the fine despite the fact that the finding, in the decision at issue, as to the existence …", "paragraph_id": "para_1003" }, { "text": "393", "paragraph_id": "para_1004" }, { "text": "In their submission, in the first place, the General Court’s decision to increase the amount of the fine infringed Google and Alphabet’s rights of defence and distorted the evidence adduced before the General Court. In the second place, the General Court infringed the presumption of innocence laid d …", "paragraph_id": "para_1005" }, { "text": "394", "paragraph_id": "para_1006" }, { "text": "Google and Alphabet conclude from this that paragraph 2 of the operative part of the judgment under appeal should be set aside. Should the Court reject the first five grounds of appeal, the Court should then, in the exercise of its unlimited jurisdiction, reduce the original fine imposed by at least one third.", "paragraph_id": "para_1007" }, { "text": "395", "paragraph_id": "para_1008" }, { "text": "The Commission contends that this ground of appeal is unfounded.", "paragraph_id": "para_1009" }, { "text": "2.\n  \n Findings of the Court", "paragraph_id": "para_1010" }, { "text": "396", "paragraph_id": "para_1011" }, { "text": "By their sixth ground of appeal, Google and Alphabet claim that the General Court made four errors of law in exercising its unlimited jurisdiction.", "paragraph_id": "para_1012" }, { "text": "397", "paragraph_id": "para_1013" }, { "text": "The General Court allegedly infringed, first, the rights of defence of Google and Alphabet; second, the presumption of innocence, laid down in Article 48(1) of the Charter of Fundamental Rights; and, third, the principle ne ultra petita . Fourth, the fine imposed by the General Court was disproportionate and unreasoned.", "paragraph_id": "para_1014" }, { "text": "398", "paragraph_id": "para_1015" }, { "text": "It should be borne in mind as a preliminary point that, in accordance with Article 261 TFEU and Article 31 of Regulation No 1/2003, the General Court has unlimited jurisdiction with regard to the fines imposed by the Commission. It is thus empowered, in addition to carrying out a mere review of the …", "paragraph_id": "para_1016" }, { "text": "399", "paragraph_id": "para_1017" }, { "text": "In that regard, it is settled case-law that the General Court is bound, when exercising its unlimited jurisdiction, by certain requirements, which include the duty to state reasons, by which it is bound in accordance with Article 36 of the Statute of the Court, applicable to the General Court under …", "paragraph_id": "para_1018" }, { "text": "400", "paragraph_id": "para_1019" }, { "text": "As regards respect for the rights of the defence, it is also apparent from the case-law of the Court of Justice that proceedings before the Courts of the European Union are inter partes , the exercise of unlimited jurisdiction in such proceedings being no exception (see, to that effect, judgments of …", "paragraph_id": "para_1020" }, { "text": "401", "paragraph_id": "para_1021" }, { "text": "While it is common ground that, in exercising that jurisdiction, the Courts of the European Union may take all the factual circumstances into account (see, to that effect, judgments of 15 October 2002, Limburgse Vinyl Maatschappij and Others v Commission, C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 …", "paragraph_id": "para_1022" }, { "text": "402", "paragraph_id": "para_1023" }, { "text": "With regard, moreover, to the principle ne ultra petita , the Court has repeatedly ruled that the exercise of powers of unlimited jurisdiction provided for in Article 261 TFEU and in Article 31 of Regulation No 1/2003 does not amount to a review of the Court’s own motion. With the exception of pleas …", "paragraph_id": "para_1024" }, { "text": "403", "paragraph_id": "para_1025" }, { "text": "In the present case, none of the arguments put forward by Google and Alphabet in relation to the alleged breach of the principle ne ultra petita , which it is appropriate to examine in the first place, demonstrates that the General Court erred in law in its application of the rules set out in the pr …", "paragraph_id": "para_1026" }, { "text": "404", "paragraph_id": "para_1027" }, { "text": "In the second place, the inter partes principle means, as noted in paragraph 401 of the present judgment, that Google and Alphabet are to have had the opportunity to express their views as regards the setting of the amount of the fine and that the General Court is not to apply any factor, circumstance or criterion which those parties could not have foreseen would be taken into account.", "paragraph_id": "para_1028" }, { "text": "405", "paragraph_id": "para_1029" }, { "text": "In the present case, the General Court, first of all, considered in paragraph 1085 of the judgment under appeal that, unlike the Commission which had used a single, overall multiplier to take account of the duration of Google and Alphabet’s participation in the infringement, it was more appropriate …", "paragraph_id": "para_1030" }, { "text": "406", "paragraph_id": "para_1031" }, { "text": "On that premiss, it went on, in paragraph 1088 of that judgment, to identify three separate periods between 1 January 2011 and the date of adoption of the decision at issue. The second of those periods was described, in paragraph 1093 of that judgment, as ‘crucial for the development of online search services from smart mobile devices’.", "paragraph_id": "para_1032" }, { "text": "407", "paragraph_id": "para_1033" }, { "text": "Lastly, the General Court confirmed, in paragraph 1094 of that judgment, that it would take account, in determining the amount of the fine, both of the respective duration of the various aspects of the single and continuous infringement and of the differences between the periods it had identified, in order to assess the variable intensity of the effects of that infringement.", "paragraph_id": "para_1034" }, { "text": "408", "paragraph_id": "para_1035" }, { "text": "Thus, by reference to the variability of the intensity of the effects during the infringement period, the General Court set the amount of the fine at EUR 4125000000 in paragraph 1099 of the judgment under appeal.", "paragraph_id": "para_1036" }, { "text": "409", "paragraph_id": "para_1037" }, { "text": "That subdivision of the infringement period, due to a potential variability in the gravity of the relevant undertaking’s conduct, is, as is apparent from paragraphs 1086 and 1088 of the judgment under appeal, one of the parameters adopted in the General Court’s method, as compared to the arithmetical and linear method defined by the Commission in the decision at issue.", "paragraph_id": "para_1038" }, { "text": "410", "paragraph_id": "para_1039" }, { "text": "In the circumstances of the present case, it cannot be argued that, by ruling, in paragraph 1088 of the judgment under appeal, that it was necessary to take particular account in assessing the amount of the fine of the intensity of the anticompetitive conduct over time, which resulted in three disti …", "paragraph_id": "para_1040" }, { "text": "411", "paragraph_id": "para_1041" }, { "text": "While the General Court is bound, in the exercise of the powers conferred by Articles 261 and 263 TFEU, to examine all complaints based on issues of law or of fact which seek to show that the amount of the fine is not commensurate with the gravity or duration of the infringement, it cannot be required to invite the parties to comment on the variation of the fine that is specifically envisaged or on the precise parameters which it intends, from that aspect, to apply.", "paragraph_id": "para_1042" }, { "text": "412", "paragraph_id": "para_1043" }, { "text": "In any event, it must be held, in the first place, that it is apparent from the judgment under appeal, in particular from paragraphs 1043, 1047 and 1099 thereof, that Google and Alphabet implemented the abusive practices at issue intentionally, that is to say, in full knowledge of the effects which …", "paragraph_id": "para_1044" }, { "text": "413", "paragraph_id": "para_1045" }, { "text": "In the second place, as the General Court found in paragraph 1087 of the judgment under appeal, Google and Alphabet’s abusive practices under their overall strategy were reinforced once both the Google Search app and the Chrome browser were covered by the MADA pre-installation conditions. Google the …", "paragraph_id": "para_1046" }, { "text": "414", "paragraph_id": "para_1047" }, { "text": "In the third place, it is apparent from paragraph 1028 of the judgment under appeal that the abusive practices of Google and Alphabet were detrimental to the interest of consumers in having more than one source for obtaining information on the internet, by restricting, in particular, the development of search services directed at those segments of consumers that attached particular value to, inter alia, the protection of privacy or specific linguistic features within the EEA.", "paragraph_id": "para_1048" }, { "text": "415", "paragraph_id": "para_1049" }, { "text": "It follows from the grounds of the judgment under appeal referred to in the preceding paragraphs of the present judgment that the amount of the fine set by the General Court is based on factors which were subject to an exchange of arguments and, moreover, may be justified, irrespective of any possib …", "paragraph_id": "para_1050" }, { "text": "416", "paragraph_id": "para_1051" }, { "text": "As to whether that amount is proportionate, Google and Alphabet submit that it is, in reality, an increase in the amount set in the decision at issue, and that that amount should have been reduced by at least one third.", "paragraph_id": "para_1052" }, { "text": "417", "paragraph_id": "para_1053" }, { "text": "In that regard, it is sufficient to note that Google and Alphabet do not offer any justification or explanation at all for seeking a reduction of at least one third of that amount. As indicated in paragraph 402 of the present judgment, it is for the applicant to adduce evidence in support of the pleas raised.", "paragraph_id": "para_1054" }, { "text": "418", "paragraph_id": "para_1055" }, { "text": "In addition, the General Court has fully explained the reasons for the finding of a single and continuous infringement notwithstanding the annulment of the abuse relating to the portfolio-based RSAs, which constitutes, in itself, justification for the limited reduction of the amount of the fine.", "paragraph_id": "para_1056" }, { "text": "419", "paragraph_id": "para_1057" }, { "text": "In the light of the foregoing considerations, the sixth ground of appeal must be rejected as unfounded.", "paragraph_id": "para_1058" }, { "text": "420", "paragraph_id": "para_1059" }, { "text": "Since none of the grounds put forward in support of the present appeal has been successful, the appeal must be dismissed in its entirety.", "paragraph_id": "para_1060" }, { "text": "VI.   Costs", "paragraph_id": "para_1061" }, { "text": "421", "paragraph_id": "para_1062" }, { "text": "Under Article 184(2) of the Rules of Procedure, where the appeal is unfounded, the Court is to make a decision as to the costs. Under Article 138(1) of those rules, which applies to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.", "paragraph_id": "para_1063" }, { "text": "422", "paragraph_id": "para_1064" }, { "text": "Under Article 140(3) of the Rules of Procedure, applicable to appeal proceedings by virtue of Article 184(1) of those rules, the Court may order an intervener to bear its own costs.", "paragraph_id": "para_1065" }, { "text": "423", "paragraph_id": "para_1066" }, { "text": "In accordance with Article 184(4) of those rules, where the appeal has not been brought by an intervener at first instance, that intervener may not be ordered to pay costs in the appeal proceedings unless it participated in the written or oral part of the proceedings before the Court of Justice. Where an intervener at first instance takes part in the proceedings, the Court of Justice may decide that that intervener is to bear its own costs.", "paragraph_id": "para_1067" }, { "text": "424", "paragraph_id": "para_1068" }, { "text": "In the present case, since the Commission has applied for costs and Google and Alphabet have been unsuccessful, Google and Alphabet must be ordered to bear their own costs and to pay those incurred by the Commission.", "paragraph_id": "para_1069" }, { "text": "425", "paragraph_id": "para_1070" }, { "text": "ADA, CCIA, Gigaset, HMD, Opera, BDZV – Bundesverband Digitalpublisher und Zeitungsverleger, BEUC, FairSearch, Seznam and Verband Deutscher Zeitschriftenverleger shall each bear their own costs.", "paragraph_id": "para_1071" }, { "text": "On those grounds, the Court (Second Chamber) hereby:", "paragraph_id": "para_1072" }, { "text": "1.", "paragraph_id": "para_1073" }, { "text": "Dismisses the appeal;", "paragraph_id": "para_1074" }, { "text": "2.", "paragraph_id": "para_1075" }, { "text": "Orders Google LLC and Alphabet Inc. to bear their own costs and to pay those incurred by the European Commission;", "paragraph_id": "para_1076" }, { "text": "3.", "paragraph_id": "para_1077" }, { "text": "Orders Application Developers Alliance, Computer & Communications Industry Association, Gigaset Communications GmbH, HMD global Oy, Opera Norway AS, BDZV – Bundesverband Digitalpublisher und Zeitungsverleger eV, Bureau européen des unions de consommateurs (BEUC), FairSearch AISBL, Seznam.cz, a.s. and Verband Deutscher Zeitschriftenverleger eV to bear their own costs.", "paragraph_id": "para_1078" }, { "text": "Jürimäe", "paragraph_id": "para_1079" }, { "text": "Lenaerts", "paragraph_id": "para_1080" }, { "text": "Schalin", "paragraph_id": "para_1081" }, { "text": "Gavalec", "paragraph_id": "para_1082" }, { "text": "Csehi", "paragraph_id": "para_1083" }, { "text": "Delivered in open court in Luxembourg on 2 July 2026.", "paragraph_id": "para_1084" }, { "text": "A. Calot Escobar", "paragraph_id": "para_1085" }, { "text": "Registrar", "paragraph_id": "para_1086" }, { "text": "K. 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