Exclusionary practices by dominant players in light of recent case law in the digital sector?

November 30, 2022

On 14 September 20221, the General Court (GC) confirmed the decision of the European Commission2 (EC or the Commission) fining Google for having imposed unlawful restrictions on manufacturers of Android mobile devices and mobile network operators to consolidate its dominant position on the search engine market.

However, the GC annulled the EC’s findings regarding payments made by Google to Android mobile device manufacturers and network operators for the pre-installation of Google services. This is the third recent judgment from the GC overturning findings that rebates paid or revenues shared were anti-competitive.

In short, the GC’s judgments have focused on the need to ensure that the analysis of alleged anti-competitive exclusionary rebates and revenue sharing in connection with exclusive purchase/supply obligations is rigorous. They don’t change the underlying law or require the identification of new forms of exclusionary conduct. The overarching theme is essentially the difficulty experienced by the EC in applying the AEC test (when it has chosen to do so), at least in part because of the information asymmetry between the EC and allegedly dominant entities.

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1 General Court (6th Chamber), T-604/18, Google and Alphabet v Commission, 14 September 2022.
2 Case AT.40099, Google Android, 18 July 2018, C(2018) 4761 final.