End of the road: EU’s top court upholds historic €4.1 billion antitrust fine against Google

The largest fine ever imposed by the European Union has just been confirmed by the CJEU (Court of Justice of the European Union), eight years after it was first announced.

In 2018, Google was fined by the European Commission €4.343 billion for abusing the dominant position of its Google Search engine within the Android operating system ecosystem. The tech giant was accused of forcing mobile operators and Android device manufacturers to preinstall its apps and services by default.

Later, in 2022, the EU General Court reduced the penalty by 5%, bringing it down to €4.125 billion, of which €1.5206 billion was to be paid by Alphabet under joint and several liability. That same year, Google filed an appeal on points of law before the CJEU, Europe’s highest court, launching a new legal chapter that has now ended in defeat for the company.

What the CJEU ruling says

Ultimately, the CJEU dismissed the appeal on points of law brought by Google and its parent company Alphabet against the General Court’s judgment, thereby confirming the penalty for anticompetitive practices linked to the Android operating system.

The press release issued by the CJEU explaining the ruling sets out the main arguments underpinning its final decision:

• The CJEU confirms that the General Court acted correctly in analyzing the relevant economic context, including the revenue-sharing agreements, without requiring a systematic counterfactual analysis. It upholds the existence of a “status quo bias” that unfairly benefited Google’s preinstalled apps. In addition, the court clarifies that the company failed to prove that the success of its tools was due solely to user preference or the quality of its services.
• The CJEU confirms that, in the digital environment, proving an abuse of dominant position does not in every case depend on showing the ability to exclude from the market only competitors that are equally efficient. Given the dynamics of the digital markets at issue, the General Court was entitled to conclude that the preinstallation conditions imposed by Google were sufficient to restrict competition and reinforce barriers to entry.
• The court confirms that the agreements imposed by Google limited the commercial opportunities of alternative incompatible Android versions and protected its monopoly. Likewise, the CJEU rules that no counterfactual analysis was necessary, since the anticompetitive impact of this strategy was fully established during the proceedings.
• The CJEU endorses the dismissal of the objective justifications put forward by Google regarding the anti-fragmentation agreements. Although the part relating to certain revenue-sharing agreements was annulled, the court confirms that the finding of a single and continuous infringement still stands. This is because the remaining abusive conduct continued to form part of the same anticompetitive strategy.
• The Court confirms the General Court’s exercise of its unlimited jurisdiction to set the amount of the fine, declaring that its reasoning was sufficient and that the procedural principles invoked by Google and Alphabet, specifically the rights of the defense, had been respected.

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