In 2018, the EU Commission fined Google €4.34 billion for breaching EU competition rules under Article 102 of the Treaty of the Functioning of the European Union (‘TFEU’).

Most particularly, Google:

• As a condition for licensing Google’s app store, required Android manufacturers to pre-install Google Chrome onto devices;
• Made Revenue Share Agreements (‘RSA’) with mobile network operators and manufacturers, on the condition, the operators and manufacturers exclusively pre-installed the Google Search app on their devices; and
• Prevented manufacturers from distributing and selling devices which ran alternative versions of Android which were not approved by Google.

The Commission considered that as Google imposed restrictions on Android device manufacturers, and network operators, which effectively meant traffic on Android devices were diverted to the Google search engine, there was an abuse of their dominant market position as it restricted competition.

Upon appeal, the General Court of the European Union (‘the EU General Court’) largely dismissed Google’s appeal against the EU Commission, and instead confirmed Google’s conduct was indeed abusive. It was held that the pre-installation of Google apps was anti-competitive as it created a “status quo bias” amongst consumers, as they would be more inclined to readily use apps available to them on their devices, rather than seeking alternatives.

It should be noted that although the EU General Court held the view that the RSA amplified the effects of Google’s pre-installation restriction, it was held that the RSA alone was not entirely anti-competitive since the value of market share under the agreement(s) were low. It was only on this point thatthe EU General Court departed from the EU Commission’s decision which resulted in Google having their original fine reduced from €4.34 billion to €4.125 billion.

Nonetheless, the judgement of the EU General Court is clear and consistent and appears to serve as foundation as to what enforcement action the EU Commission can take. It is highly likely Google will appeal this decision, and it may choose to defer the matter to the Court of Justice of the European Union.

To read more about the decision, click here.