Google fails to overturn EU’s €4BN+ Android antitrust decision

Google’s appeal against a €4.34 billion antitrust fine handed down by the European Union four years ago, after the bloc’s competition regulator found major violations related to its Android mobile OS, has not succeeded in overturning the decision: The EU’s General Court largely confirmed the Commission’s decision in a ruling issued today.

It’s a much needed win for the EU which has had a number of its antitrust decision unpicked in the courts in recent years.

Google has been contacted for comment.

The size of the fine issued by the EU to Google over the Android violations in July 2018 equated to a record-breaking $5BN at the time — and it remains unsurpassed for an EU antitrust sanction.

However the General Court has revised the size of the fine downward slightly — setting the final amount imposed on Google at (a still record-breaking) €4.125BN.

Consumer groups and Google rivals were quick to welcome the Court’s decision.

In a statement, Monique Goyens, the director general of BEUC, the European consumer organization, dubbed the ruling a “crucial” win for consumers:

“Today’s General Court ruling on Google’s practices concerning Android is crucial because it confirms that Europe’s consumers must enjoy meaningful choice between search engines and browsers on their phones and tablets. The Court ruling makes clear that Google cannot abuse its strong market position to unfairly exclude competitors through a complex and illegal web of restrictions and requirements for phone manufacturers. The ruling will help to ensure that consumers can benefit from a more open and innovative digital environment,” she said, adding: “Google’s restrictions harmed many millions of European consumers by depriving them of genuine choice and innovation for a decade. In practice, many European consumers had no alternative to using Google’s search engine and Google’s browser Chrome on their mobile devices. If they preferred, for example, to use more innovative and privacy-friendly services, Google’s restrictions prevented them from doing so.”

While Ecosia, the environmentally focused not-for-profit search engines that competes with Google search, also welcomed the ruling while highlighting how much marketshare the tech giant still retains in the region.

“Today’s decision is a significant victory for the European Commission (EC) and is a continuation of a positive trend in Europe towards fairer competition in the online search market,” said Sophie Dembinski, its head of public policy, in a statement. “Much remains to be done to bring about true fairness in the space — Google still maintains a 96.6% market share on mobile devices in Europe, down only 0.3% since 2018 when this ruling was initially made — thanks to the EC and European Parliament’s heroic efforts with the Digital Markets Act (DMA), this ruling strengthens the EU’s overall position as a leading regulatory force, capable of keeping up with fast-moving developments in the tech sector and taking the action necessary to hold tech giants accountable – something which European consumers and businesses alike will benefit from.”

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As well as being sanctioned with a massive fine for the Android breaches, Google was ordered by the EU to cease the infringements. However the bloc’s competition regulator allowed the company to configure its own remedy.

That resulted in several frustrating years for search competitors after it started offering a choice screen to Android users in the EU but quickly moved to a paid auction model for assigning slots — thereby, critics argued, creating an unfairly skewed playing field which penalized smaller, less well resourced competitors and those with not-for-profit business models.

It was only after further pressure from the EU that Google agreed to drop the paid auction — switching to a choice screen that’s free for eligible participants last year. It also expanded the number of participants displayed, showing a ‘top five’ (determined by per market popularity but displayed in a randomized order — so, of course, Google is always one of these top options given its regional marketshare… ) — after which, if the user chooses to keep scrolling, they can see up to seven further options (displayed in random order). If there are more than seven additional eligible options for the market Google says the choice of which it displays is also picked randomly.

The Court ruling largely upholding the EU’s Android decision suggests these choice screens are here to stay. And, indeed, more such regulation-driven interventions may be on the way as the bloc starts to enforce updated competition rule on the most powerful platforms — under the incoming Digital Markets Act.

Antitrust activity dials up across Europe

The EU’s antitrust division has been very active in investigating Google over the past five+ years, landing a string of enforcements — including a $2.7BN fine related to shopping searches back in 2017 (which Google largely failed to overturn on appeal). Google was also fined $1.7BN in a case related to AdSense, its search ad brokering business, in 2019. (Its appeal there is ongoing.)

The competition commission also has an ongoing probe into Google’s adtech — opened in June 2021. And, on Friday, Reuters reported that the EU had widened this investigation. The bloc is also looking into an ad deal between Google and Facebook — known as ‘Jedi Blue’.

The UK’s Competition and Markets Authority has similar probes of Google’s adtech ongoing too. As well as expressed concerns about the mobile duopoly — one half of which is Google Android. While Germany’s antitrust scrutiny of the company stepped up a gear at the start of this year when its regulator determined the tech giant falls under a special abuse controls regime brought in under a major reform of digital competition rules that’s aimed at tech giants’ market muscle.

France has also been aggressive in probing competition concerns around Google. And this summer the company dropped an appeal against an antitrust fine of well over half a billion dollars that France’s competition watchdog hit it with in July 2021 — related to breaches in how it negotiated terms with news publishers over copyright licensing.

Google fails to overturn EU’s €4BN+ Android antitrust decision by Natasha Lomas originally published on TechCrunch