The EU General Court confirms Android abuse of dominance through tying, with the real legacy of the case extending far beyond (Google Android)

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The General Court confirmed on 14 September 2022 the EC finding in 2018 that Google had abused its dominance by tying its Android operating system with its app store suite, the Google Play Store (“GPS”), thus leveraging power from GPS (a service that was “must have” to OEMs equipping their devices) to cement the monopoly of Google Search (and the Chrome browser) on mobile devices. The case started in Europe informally in 2014, formally in 2015, the infringement decision was issued by the EC in July 2018, and it has taken another 4 years to get through this first round of appeals. Mercifully less than the Google Shopping case, which took over 10 years from its uncertain beginnings (and early settlement attempts) to last November’s judgment upholding the Commission’s 2017 decision – but still a chunky amount of time. In addition to a few observations on the case and the judgment itself, there are at least three broader reflections arising for me in the wake of the Court’s endorsement. First, while the judgment is a necessary boost to the posture and appetite of the agency, the case is also more than most emblematic of the inherent challenges and failures of ex post enforcement. The reality is that Google’s practices had succeeded in moving the Search monopoly from desktop to mobile pretty much entirely by the time the case was formally started by the EC (and before it, the Russian FAS). What was underway already by 2008-10 was a significant “pivot” into a new technology (desktop to mobile) which could have provided in principle a major opportunity for challenging the incumbent in the previous technology. Yet monopolisation of mobile search was largely accomplished by the time the investigations got going, and the investigations did not change or slow down the conduct. This reminder of the slow grinding of the antitrust enforcement wheels is especially poignant when – as now – there are major technological pivots underway, for instance the emergence of potential new paradigms such as immersive reality and “horizon worlds”. What can ex-post enforcement hope to do here, and should the agencies and the Courts not be much more focused on tools like merger control to pre-empt deals which will facilitate “monopoly pass-on” and early platform envelopment? Second, the case is also emblematic because, notwithstanding a great theory of harm, fines, and a “remedy”, it has led to absolutely no change on the ground – the “remedy” could not realistically undo the harm in a digital market which has tipped. And the Court judgment will of course not change that. Third, the slow grinding of the antitrust wheels in this and other cases is itself the reason that digital enforcement has strongly shifted – at least in Europe – to a huge (and at the moment highly uncertain) experiment in digital regulation. Is this more likely to succeed?