On 27 September, the week-long EU General Court hearings began in order to hear Google’s appeal against the European Commission’s 2018 decision which found that Google had abused its dominant position in respect of its Android mobile operating system, and associated fine.
Reports from the hearing indicate that lawyers for both the European Commission and Google have made submissions, including in relation to Google’s dominance and its disputed anti-competitive behaviour.
Counsel for Google has argued that the Commission was erroneous in its market definition, maintaining that it should have included Apple within its definition and did not account for the ability for consumers to switch between iPhones and Android phones. It was argued that Google faces intense competition from Apple.
Google also claimed that the Commission had mistaken foreclosure of competitors for effective competition. The Commission asserted that it had shown that the test for ‘capability to foreclose’ had been met in 2018, and that Google must show its efficiencies to prove otherwise. Counsel for the Commission made the point that the Android ‘MADA’ contracts (those which required phone manufacturers using Android’s operating system to pre-install Chrome and the Play Store), alongside internal documents, showed that Google had actively made it very difficult for competitors to devise a “forked” version of Android. The Commission also highlighted that Google should not need to pre-install its Chrome browser to devices if its product is favoured by consumers – they should be seeking to download it themselves.
Google’s response, including input from intervenors Opera and Gigaset, was that it had not foreclosed competitors but instead enabled them to enter their respective markets and to compete. Furthermore, Google cited evidence that users choose to use Google because they prefer it, stating that the most searched term on Microsoft’s Big search engine was ‘Google’. Google’s counsel also emphasised the ease with which consumers could download alternative apps; users are not forced to use the pre-installed app. The Commission rebutted this argument, citing with reference to evidence from BEUC, that users tend to use what is readily available to them, rather than seeking out alternatives.
The hearing is set to continue until the end of the week, and it is expected that the Commission will rely heavily on the precedent in Microsoft to support its findings in 2018.
Whether the General Court will side with the Commission or Google is unlikely to be known for many months.
Please contact Tim Cowen with questions.