# Official Journal C 194/2021

| | ISSN 1977-091X |
| --- | --- |
| Official Journal
  of the European Union | C 194 |
| | |
| English edition | Information and Notices | Volume 6421 May 2021 |

ISSN 1977-091X

Official Journal

of the European Union

C 194

English edition

Information and Notices

Volume 6421 May 2021

---

| Contents | page |
| --- | --- |
| | II   Information |
| | INFORMATION FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES |
| | European Commission |
| 2021/C 194/01 | Non-opposition to a notified concentration (Case M.10173 — Luminus/Essent Belgium) (
  1
  ) | 1 |

Contents

page

II   Information

INFORMATION FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

European Commission

2021/C 194/01

Non-opposition to a notified concentration (Case M.10173 — Luminus/Essent Belgium) (
  1
  )

1

1

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| | IV   Notices |
| --- | --- |
| | NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES |
| | European Commission |
| 2021/C 194/02 | Euro exchange rates — 20 May 2021 | 2 |
| 2021/C 194/03 | Opinion of the Advisory Committee on mergers at its meeting of 1 December 2020 concerning a preliminary draft decision relating to Case M.9660 – Google/Fitbit – Rapporteur: Poland (
  1
  ) | 3 |
| 2021/C 194/04 | Final Report of the Hearing Officer – Case M.9660 – Google/Fitbit (
  1
  ) | 6 |
| 2021/C 194/05 | Summary of Commission Decision of 17 December 2020 declaring a concentration compatible with the internal market and the functioning of the EEA Agreement (Case M.9660 – Google/Fitbit)
  (notified under document C(2020) 9105)

   (
  1
  ) | 7 |

IV   Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

European Commission

2021/C 194/02

Euro exchange rates — 20 May 2021

2

2021/C 194/03

Opinion of the Advisory Committee on mergers at its meeting of 1 December 2020 concerning a preliminary draft decision relating to Case M.9660 – Google/Fitbit – Rapporteur: Poland (
  1
  )

1

3

2021/C 194/04

Final Report of the Hearing Officer – Case M.9660 – Google/Fitbit (
  1
  )

1

6

2021/C 194/05

Summary of Commission Decision of 17 December 2020 declaring a concentration compatible with the internal market and the functioning of the EEA Agreement (Case M.9660 – Google/Fitbit)
  (notified under document C(2020) 9105)

   (
  1
  )

(notified under document C(2020) 9105)

1

7

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| | V   Announcements |
| --- | --- |
| | OTHER ACTS |
| | European Commission |
| 2021/C 194/06 | Publication of an application for registration of a name pursuant to Article 50(2)(a) of Regulation (EU) No 1151/2012 of the European Parliament and of the Council on quality schemes for agricultural products and foodstuffs | 17 |

V   Announcements

OTHER ACTS

European Commission

2021/C 194/06

Publication of an application for registration of a name pursuant to Article 50(2)(a) of Regulation (EU) No 1151/2012 of the European Parliament and of the Council on quality schemes for agricultural products and foodstuffs

17

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| | |
| --- | --- |
| | (1)   Text with EEA relevance. |

---

(1)   Text with EEA relevance.

1

| EN | |
| --- | --- |

EN

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II Information

INFORMATION FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

European Commission

| 21.5.2021 | EN | Official Journal of the European Union | C 194/1 |
| --- | --- | --- | --- |

21.5.2021

EN

Official Journal of the European Union

C 194/1

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Non-opposition to a notified concentration

(Case M.10173 — Luminus/Essent Belgium)

(Text with EEA relevance)

(2021/C 194/01)

On 30 April 2021, the Commission decided not to oppose the above notified concentration and to declare it compatible with the internal market. This decision is based on Article 6(1)(b) of Council Regulation (EC) No 139/2004 (1). The full text of the decision is available only in English and will be made public after it is cleared of any business secrets it may contain. It will be available:

| — | in the merger section of the Competition website of the Commission (http://ec.europa.eu/competition/mergers/cases/). This website provides various facilities to help locate individual merger decisions, including company, case number, date and sectoral indexes, |
| --- | --- |

—

in the merger section of the Competition website of the Commission (http://ec.europa.eu/competition/mergers/cases/). This website provides various facilities to help locate individual merger decisions, including company, case number, date and sectoral indexes,

| — | in electronic form on the EUR-Lex website (http://eur-lex.europa.eu/homepage.html?locale=en) under document number 32021M10173. EUR-Lex is the online access to European law. |
| --- | --- |

—

in electronic form on the EUR-Lex website (http://eur-lex.europa.eu/homepage.html?locale=en) under document number 32021M10173. EUR-Lex is the online access to European law.

---

(1)  OJ L 24, 29.1.2004, p. 1.

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IV Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

European Commission

| 21.5.2021 | EN | Official Journal of the European Union | C 194/2 |
| --- | --- | --- | --- |

21.5.2021

EN

Official Journal of the European Union

C 194/2

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Euro exchange rates (1)

20 May 2021

(2021/C 194/02)

1 euro =

| | Currency | Exchange rate |
| --- | --- | --- |
| USD | US dollar | 1,2203 |
| JPY | Japanese yen | 132,95 |
| DKK | Danish krone | 7,4364 |
| GBP | Pound sterling | 0,86400 |
| SEK | Swedish krona | 10,1813 |
| CHF | Swiss franc | 1,0991 |
| ISK | Iceland króna | 149,30 |
| NOK | Norwegian krone | 10,1775 |
| BGN | Bulgarian lev | 1,9558 |
| CZK | Czech koruna | 25,519 |
| HUF | Hungarian forint | 350,60 |
| PLN | Polish zloty | 4,5153 |
| RON | Romanian leu | 4,9278 |
| TRY | Turkish lira | 10,2114 |
| AUD | Australian dollar | 1,5736 |
| CAD | Canadian dollar | 1,4778 |
| HKD | Hong Kong dollar | 9,4726 |
| NZD | New Zealand dollar | 1,6986 |
| SGD | Singapore dollar | 1,6261 |
| KRW | South Korean won | 1 379,90 |
| ZAR | South African rand | 17,1639 |
| CNY | Chinese yuan renminbi | 7,8563 |
| HRK | Croatian kuna | 7,5095 |
| IDR | Indonesian rupiah | 17 589,83 |
| MYR | Malaysian ringgit | 5,0594 |
| PHP | Philippine peso | 58,410 |
| RUB | Russian rouble | 89,8263 |
| THB | Thai baht | 38,305 |
| BRL | Brazilian real | 6,4567 |
| MXN | Mexican peso | 24,2825 |
| INR | Indian rupee | 89,1630 |

Currency

Exchange rate

USD

US dollar

1,2203

JPY

Japanese yen

132,95

DKK

Danish krone

7,4364

GBP

Pound sterling

0,86400

SEK

Swedish krona

10,1813

CHF

Swiss franc

1,0991

ISK

Iceland króna

149,30

NOK

Norwegian krone

10,1775

BGN

Bulgarian lev

1,9558

CZK

Czech koruna

25,519

HUF

Hungarian forint

350,60

PLN

Polish zloty

4,5153

RON

Romanian leu

4,9278

TRY

Turkish lira

10,2114

AUD

Australian dollar

1,5736

CAD

Canadian dollar

1,4778

HKD

Hong Kong dollar

9,4726

NZD

New Zealand dollar

1,6986

SGD

Singapore dollar

1,6261

KRW

South Korean won

1 379,90

ZAR

South African rand

17,1639

CNY

Chinese yuan renminbi

7,8563

HRK

Croatian kuna

7,5095

IDR

Indonesian rupiah

17 589,83

MYR

Malaysian ringgit

5,0594

PHP

Philippine peso

58,410

RUB

Russian rouble

89,8263

THB

Thai baht

38,305

BRL

Brazilian real

6,4567

MXN

Mexican peso

24,2825

INR

Indian rupee

89,1630

---

(1)  Source: reference exchange rate published by the ECB.

---

| 21.5.2021 | EN | Official Journal of the European Union | C 194/3 |
| --- | --- | --- | --- |

21.5.2021

EN

Official Journal of the European Union

C 194/3

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Opinion of the Advisory Committee on mergers at its meeting of 1 December 2020 concerning a preliminary draft decision relating to Case M.9660 – Google/Fitbit

Rapporteur: Poland

(Text with EEA relevance)

(2021/C 194/03)

Concentration

| 1. | The Advisory Committee (15 Member States) agrees with the Commission that the notified transaction constitutes a concentration within the meaning of Article 3(1)(b) of the Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the ‘Merger Regulation’) (1). |
| --- | --- |

1.

| 2. | The Advisory Committee (15 Member States) agrees with the Commission that the notified transaction has an EU dimension pursuant to Article 1(2) of the Merger Regulation. |
| --- | --- |

2.

Market definition

Product market definition

| 3. | The Advisory Committee agrees with the conclusions reached by the Commission in the draft Decision in relation to the definition of the following relevant product markets for:






  a) | The supply of wrist-worn wearable devices (15 Member States agree); |
| --- | --- | --- |

3.

a)

The supply of wrist-worn wearable devices (15 Member States agree);

| b) | The supply of licensable OSs for smart mobile devices and the supply of licensable OSs for wrist-worn wearable devices (15 Member States agree); |
| --- | --- |

b)

The supply of licensable OSs for smart mobile devices and the supply of licensable OSs for wrist-worn wearable devices (15 Member States agree);

| c) | The supply of app stores for a given OS platform of smart mobile devices (in particular Android app stores) and the supply of app stores for a given OS platform of wrist-worn wearable devices (in particular app stores for Wear OS and Fitbit devices) (15 Member States agree); |
| --- | --- |

c)

The supply of app stores for a given OS platform of smart mobile devices (in particular Android app stores) and the supply of app stores for a given OS platform of wrist-worn wearable devices (in particular app stores for Wear OS and Fitbit devices) (15 Member States agree);

| d) | The supply of general search services (15 Member States agree); |
| --- | --- |

d)

The supply of general search services (15 Member States agree);

| e) | The supply of online search advertising services and the supply of online display advertising services (15 Member States agree); |
| --- | --- |

e)

The supply of online search advertising services and the supply of online display advertising services (15 Member States agree);

| f) | The supply of search ad network services (14 Member States agree. 1 Member State abstains); |
| --- | --- |

f)

The supply of search ad network services (14 Member States agree. 1 Member State abstains);

| g) | The supply of display ads SSP services (14 Member States agree. 1 Member State abstains); |
| --- | --- |

g)

The supply of display ads SSP services (14 Member States agree. 1 Member State abstains);

| h) | The supply of display ads DSP services (14 Member States agree. 1 Member State abstains); |
| --- | --- |

h)

The supply of display ads DSP services (14 Member States agree. 1 Member State abstains);

| i) | The supply of display ad network services (14 Member States agree. 1 Member State abstains); |
| --- | --- |

i)

The supply of display ad network services (14 Member States agree. 1 Member State abstains);

| j) | The supply of display ads publisher ad server services (14 Member States agree. 1 Member State abstains); |
| --- | --- |

j)

The supply of display ads publisher ad server services (14 Member States agree. 1 Member State abstains);

| k) | The supply of display ads advertiser ad server services (14 Member States agree. 1 Member State abstains); |
| --- | --- |

k)

The supply of display ads advertiser ad server services (14 Member States agree. 1 Member State abstains);

| l) | The supply of analytics services (14 Member States agree. 1 Member State abstains); |
| --- | --- |

l)

The supply of analytics services (14 Member States agree. 1 Member State abstains);

| m) | The supply of health and fitness apps (15 Member States agree); |
| --- | --- |

m)

The supply of health and fitness apps (15 Member States agree);

| n) | The retail provision of mobile payment services (15 Member States agree); |
| --- | --- |

n)

The retail provision of mobile payment services (15 Member States agree);

| o) | The supply of navigation apps offering turn-by-turn navigation (15 Member States agree); |
| --- | --- |

o)

The supply of navigation apps offering turn-by-turn navigation (15 Member States agree);

| p) | The supply of virtual assistants (15 Member States agree); |
| --- | --- |

p)

The supply of virtual assistants (15 Member States agree);

| q) | The supply of digital music distribution services (15 Member States agree); |
| --- | --- |

q)

The supply of digital music distribution services (15 Member States agree);

| r) | The supply of digital translation services (15 Member States agree); |
| --- | --- |

r)

The supply of digital translation services (15 Member States agree);

| s) | The provision of cloud infrastructure and data analytics (15 Member States agree); |
| --- | --- |

s)

The provision of cloud infrastructure and data analytics (15 Member States agree);

| t) | The supply of patient monitoring (15 Member States agree); |
| --- | --- |

t)

The supply of patient monitoring (15 Member States agree);

| u) | The provision of data for medical research and RWE (real-world evidence) (15 Member States agree); |
| --- | --- |

u)

The provision of data for medical research and RWE (real-world evidence) (15 Member States agree);

| v) | The supply of corporate wellness programmes (15 Member States agree). |
| --- | --- |

v)

The supply of corporate wellness programmes (15 Member States agree).

Geographic market definition

| 4. | The Advisory Committee (15 Member States) agrees with the conclusions reached by the Commission in the draft Decision in relation to the definition of the relevant geographic market for the markets listed in question 3. |
| --- | --- |

4.

Competitive assessment

| 5. | The Advisory Committee (15 Member States) agrees with the Commission’s assessment that the notified transaction would raise concerns as to a strengthening of Google’s market position in the supply of online search advertising, online display advertising and the supply of ‘ad tech services’. |
| --- | --- |

5.

| 6. | The Advisory Committee (15 Member States) agrees with the Commission’s assessment that the notified transaction would raise concerns regarding the input foreclosure of providers of digital healthcare services caused by restriction of their access to the Fitbit Web API (and, therefore, their access to the data of Fitbit’s users). |
| --- | --- |

6.

| 7. | The Advisory Committee (15 Member States) agrees with the Commission’s assessment that the notified transaction would raise concerns regarding Google’s leveraging of its dominant position in the supply of licensable OSs for smart mobile devices to the market for the supply of wrist-worn wearable devices (and possible segments thereof). |
| --- | --- |

7.

| 8. | The Advisory Committee agrees with the Commission’s assessment that the notified transaction is unlikely to significantly impede effective competition, as a result of horizontal effects arising from the combination of Google’s and Fitbit’s user databases and data collection capabilities for use:






  a) | in the field of general search services (14 Member States agreed. 1 Member State voted against); |
| --- | --- | --- |

8.

a)

in the field of general search services (14 Member States agreed. 1 Member State voted against);

| b) | in the field of digital healthcare (13 Member States agreed. 2 Member States abstained). |
| --- | --- |

b)

in the field of digital healthcare (13 Member States agreed. 2 Member States abstained).

| 9. | The Advisory Committee agrees with the Commission’s assessment that the notified transaction is unlikely to significantly impede effective competition:






  a) | in the market for wrist-worn wearable devices and possible segments, as a result of any input foreclosure strategies with regard to Google’s Wear OS (15 Member States agreed); |
| --- | --- | --- |

9.

a)

in the market for wrist-worn wearable devices and possible segments, as a result of any input foreclosure strategies with regard to Google’s Wear OS (15 Member States agreed);

| b) | in the market for wrist-worn wearable devices and possible segments, as a result of any input foreclosure strategies with regard to Google apps and services (Google Search, Google Fit, Google Pay, Google Maps, Google Assistant, Google Play Music/YouTube Music and Google Translate) (14 Member States agreed. 1 Member State abstained); |
| --- | --- |

b)

in the market for wrist-worn wearable devices and possible segments, as a result of any input foreclosure strategies with regard to Google apps and services (Google Search, Google Fit, Google Pay, Google Maps, Google Assistant, Google Play Music/YouTube Music and Google Translate) (14 Member States agreed. 1 Member State abstained);

| c) | in the market for wrist-worn wearable devices and possible segments, as a result of any input foreclosure strategies with regard to Google Play (15 Member States agreed); |
| --- | --- |

c)

in the market for wrist-worn wearable devices and possible segments, as a result of any input foreclosure strategies with regard to Google Play (15 Member States agreed);

| d) | in the market for wrist-worn wearable devices and possible segments, as a result of any possible input foreclosure strategies with regard to Google Search (14 Member States agreed. 1 Member State abstained); |
| --- | --- |

d)

in the market for wrist-worn wearable devices and possible segments, as a result of any possible input foreclosure strategies with regard to Google Search (14 Member States agreed. 1 Member State abstained);

| e) | in the markets for the supply of (i) general search services, (ii) virtual assistants, (iii) health and fitness apps, (iv) mobile payment services, (v) digital music distribution services, (vi) navigation apps offering turn-by-turn navigation and (vii) digital translation services (and possible segments thereof), as a result of any input foreclosure strategies with regard to Fitbit’s App Gallery (or any successor app store for Fitbit devices) (14 Member States agreed. 1 Member State abstained); |
| --- | --- |

e)

in the markets for the supply of (i) general search services, (ii) virtual assistants, (iii) health and fitness apps, (iv) mobile payment services, (v) digital music distribution services, (vi) navigation apps offering turn-by-turn navigation and (vii) digital translation services (and possible segments thereof), as a result of any input foreclosure strategies with regard to Fitbit’s App Gallery (or any successor app store for Fitbit devices) (14 Member States agreed. 1 Member State abstained);

| f) | in the markets for the supply of (i) general search services, (ii) health and fitness apps, (iii) mobile payment services, (iv) navigation apps offering turn-by-turn navigation; (v) virtual assistants; (vi) digital music distribution services and (vii) digital translation services (and possible segments thereof), as a result of any access by the merged entity to commercially sensitive information (15 Member States agreed). |
| --- | --- |

f)

in the markets for the supply of (i) general search services, (ii) health and fitness apps, (iii) mobile payment services, (iv) navigation apps offering turn-by-turn navigation; (v) virtual assistants; (vi) digital music distribution services and (vii) digital translation services (and possible segments thereof), as a result of any access by the merged entity to commercially sensitive information (15 Member States agreed).

Commitments

| 10. | The Advisory Committee agrees with the Commission’s conclusion that the Ads Commitment as offered by the Notifying Party on 4 November removes concerns as to a strengthening of Google’s market position in the supply of online search advertising, online dis play advertising and the supply of ‘ad tech services’. 11 Member States voted in favour. 2 Member State abstained. 2 Member States voted against. |
| --- | --- |

10.

| 11. | The Advisory Committee agrees with the Commission’s conclusion that the Web API Access Commitment as offered by the Notifying Party on 4 November removes concerns as to the input foreclosure of providers of digital healthcare services caused by restriction of their access to the Fitbit Web API. 12 Member States voted in favour. 2 Member States abstained. 1 Member State voted against. |
| --- | --- |

11.

| 12. | The Advisory Committee agrees with the Commission’s conclusion that the Android API Commitment as offered by the Notifying Party on 4 November removes concerns as to Google’s leveraging of its dominant position in the supply of licensable OSs for smart mobile devices to the market for the supply of wrist-worn wearable devices. 12 Member States voted in favour. 2 Member States abstained. 1 Member State voted against. |
| --- | --- |

12.

| 13. | The Advisory Committee agrees with the Commission that, subject to the full compliance with the final commitments offered by the Notifying Party on 4 November 2020, the notified transaction is not likely to significantly impede effective competition in the internal market or in a substantial part of it. 11 Member States voted in favour. 2 Member States abstained. 2 Member State voted against. |
| --- | --- |

13.

Compatibility with the internal market and the Agreement on the European Economic Area

| 14. | The Advisory Committee agrees with the Commission that the notified concentration must therefore be declared compatible with the internal market and the Agreement on the European Economic Area (2) in accordance with Article 2(2) and Article 8(2) of the Merger Regulation and Article 57 of the Agreement on the European Economic Area. 11 Member States voted in favour. 1 Member State abstained. 3 Member State voted against. |
| --- | --- |

14.

---

(1)  OJ L 24, 29.1.2004, p. 1.

(2)  OJ L 1, 3.1.1994, p. 3.

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| 21.5.2021 | EN | Official Journal of the European Union | C 194/6 |
| --- | --- | --- | --- |

21.5.2021

EN

Official Journal of the European Union

C 194/6

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Final Report of the Hearing Officer (1)

Case M.9660 – Google/Fitbit

(Text with EEA relevance)

(2021/C 194/04)

On 15 June 2020, the Commission received a notification of a proposed concentration pursuant to Article 4 of the Merger Regulation (2) by which Google, LLC (‘Google’) would acquire within the meaning of Article 3(1)(b) of the Merger Regulation sole control of Fitbit, Inc. (‘Fitbit’) by way of purchase of shares (the ‘Proposed Transaction’).

On 8 July 2020, I admitted Privacy International as interested third person pursuant to Article 18(4), second sentence, of the Merger Regulation, Articles 11(c) and 16(1) of the Merger Implementing Regulation (3), and Article 5 of Decision 2011/695/EU.

On 4 August 2020, the Commission initiated proceedings pursuant to Article 6(1)(c) of the Merger Regulation (‘Article 6(1)(c) Decision’).

On 21 August 2020, Google submitted written comments on the Article 6(1)(c) Decision.

On 2 September 2020, I admitted BEUC, The European Consumer Organisation, as interested third person.

On 22 September and 16 October 2020, the Commission and Google agreed on extensions of the time limit for the Commission’s investigation, pursuant to Article 10(3), second subparagraph, of the Merger Regulation, by a total of 15 working days.

On 28 September 2020, Google submitted commitments in accordance with Article 8(2) of the Merger Regulation in order to address the competition concerns identified by the Commission.

On 29 September 2020, the Commission launched a market test of these commitments. The Commission provided Google with detailed feedback on the outcome of the market tests during several calls in October and early November 2020.

On 4 November 2020, Google submitted revised commitments pursuant to Article 8(2) of the Merger Regulation.

The draft decision declares the Proposed Transaction compatible with the internal market and the EEA Agreement, subject to full compliance with the revised commitments.

Overall, I consider that the effective exercise of procedural rights has been respected during the present proceedings.

Brussels, 4 December 2020.

Wouter WILS

---

(1)  Pursuant to Articles 16 and 17 of Decision 2011/695/EU of the President of the European Commission of 13 October 2011 on the function and terms of reference of the hearing officer in certain competition proceedings (OJ L 275, 20.10.2011, p. 29) (‘Decision 2011/695/EU’).

1

(2)  Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings (OJ L 24, 29.1.2004, p. 1) (‘Merger Regulation’).

2

(3)  Commission Regulation (EC) No 802/2004 implementing Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings (OJ L 133, 30.4.2004, p. 1) (‘Merger Implementing Regulation’).

3

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| 21.5.2021 | EN | Official Journal of the European Union | C 194/7 |
| --- | --- | --- | --- |

21.5.2021

EN

Official Journal of the European Union

C 194/7

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SUMMARY OF COMMISSION DECISION

of 17 December 2020

declaring a concentration compatible with the internal market and the functioning of the EEA Agreement

(Case M.9660 – Google/Fitbit)

(notified under document C(2020) 9105)

(Only the English version is authentic)

(Text with EEA relevance)

(2021/C 194/05)

On 17 December 2020 the Commission adopted a Decision in a merger case under Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (1)
  , and in particular Article 8(2) of that Regulation. A non-confidential version of the full Decision, as the case may be in the form of a provisional version, can be found in the authentic language of the case on the website of the Directorate-General for Competition, at the following address:

https://ec.europa.eu/competition/index_en.html

1.   INTRODUCTION

| (1) | On 1 November 2019, Google announced that it will acquire control of Fitbit. The transaction was notified to the Commission on 15 June 2020. |
| --- | --- |

(1)

| (2) | By Decision dated 4 August 2020, the Commission found that the proposed transaction raised serious doubts as to its compatibility with the internal market and initiated proceedings pursuant to Article 6(1)(c) of the Merger Regulation (‘the decision opening proceedings’). |
| --- | --- |

(2)

| (3) | The Decision was consulted with the Member States during the Advisory Committee on Concentrations on 1 December 2020, which provided a favourable opinion. The Hearing Officer provided its favourable opinion on the proceedings in his report which was submitted on 4 December 2020. |
| --- | --- |

(3)

2.   THE RELEVANT MARKETS

| (4) | The Decision identifies the following relevant markets:






  (a) | Wrist-worn wearable devices, potentially further segmented between (i) fitness trackers and smartwatches, (ii) fitness trackers and smartwatches with and without GPS connectivity, (iii) smartwatches with and without cellular connectivity, and (iv) basic and full smartwatches. The geographic scope is at least EEA-wide if not worldwide. |
| --- | --- | --- |

(4)

(a)

Wrist-worn wearable devices, potentially further segmented between (i) fitness trackers and smartwatches, (ii) fitness trackers and smartwatches with and without GPS connectivity, (iii) smartwatches with and without cellular connectivity, and (iv) basic and full smartwatches. The geographic scope is at least EEA-wide if not worldwide.

| (b) | OSs: (i) the supply of licensable OSs for smart mobile devices, and (ii) the supply of licensable OSs for wrist-worn wearable devices, potentially segmented along the lines of the potential segments of the market for wrist-worn wearable devices listed in the previous paragraph. The geographic scope of the market for licensable OSs for smart mobile devices is worldwide excluding China, while the geographic scope of the market for licensable OSs for wrist-worn wearable devices is at least EEA-wide if not worldwide excluding China. |
| --- | --- |

(b)

OSs: (i) the supply of licensable OSs for smart mobile devices, and (ii) the supply of licensable OSs for wrist-worn wearable devices, potentially segmented along the lines of the potential segments of the market for wrist-worn wearable devices listed in the previous paragraph. The geographic scope of the market for licensable OSs for smart mobile devices is worldwide excluding China, while the geographic scope of the market for licensable OSs for wrist-worn wearable devices is at least EEA-wide if not worldwide excluding China.

| (c) | App stores: (i) the supply of app stores for a given OS platform of smart mobile devices (in particular Android app stores), and (ii) the supply of app stores for a given OS platform of wrist-worn wearable devices (in particular app stores for Wear OS and Fitbit devices). The geographic scope of markets for app stores for a given OS platform of smart mobile devices (e.g. Android app stores) and of wrist-worn wearable devices (e.g. Wear OS and Fitbit app stores) is worldwide excluding China. |
| --- | --- |

(c)

App stores: (i) the supply of app stores for a given OS platform of smart mobile devices (in particular Android app stores), and (ii) the supply of app stores for a given OS platform of wrist-worn wearable devices (in particular app stores for Wear OS and Fitbit devices). The geographic scope of markets for app stores for a given OS platform of smart mobile devices (e.g. Android app stores) and of wrist-worn wearable devices (e.g. Wear OS and Fitbit app stores) is worldwide excluding China.

| (d) | General search services. The geographic scope of the market for the supply of general search services is national. |
| --- | --- |

(d)

General search services. The geographic scope of the market for the supply of general search services is national.

| (e) | Online advertising: (i) the supply of online search advertising services, potentially segmented in the supply of online search advertising services on desktops or on mobile apps, and (ii) the supply of online display advertising services, potentially segmented in the supply of online display advertising services on desktops or on mobile apps, the supply of online display advertising services on- and off-social networks, the supply of online display video or non-video advertising services. The geographic scope of the identified markets is national alongside linguistic borders within the EEA. |
| --- | --- |

(e)

Online advertising: (i) the supply of online search advertising services, potentially segmented in the supply of online search advertising services on desktops or on mobile apps, and (ii) the supply of online display advertising services, potentially segmented in the supply of online display advertising services on desktops or on mobile apps, the supply of online display advertising services on- and off-social networks, the supply of online display video or non-video advertising services. The geographic scope of the identified markets is national alongside linguistic borders within the EEA.

| (f) | Ad tech services: (i) the supply of SSP services, (ii) the supply of DSP services, (iii) the supply of search ad network services and display ad network services, (iv) the supply of ad server services, and (v) the supply of analytics services. The geographic scope of the identified markets is at least EEA-wide. |
| --- | --- |

(f)

Ad tech services: (i) the supply of SSP services, (ii) the supply of DSP services, (iii) the supply of search ad network services and display ad network services, (iv) the supply of ad server services, and (v) the supply of analytics services. The geographic scope of the identified markets is at least EEA-wide.

| (g) | Health and fitness apps, potentially further segmented by functionality and platform (PC, smart mobile or wrist-worn wearable device). The geographic scope of the identified markets is at least national. |
| --- | --- |

(g)

Health and fitness apps, potentially further segmented by functionality and platform (PC, smart mobile or wrist-worn wearable device). The geographic scope of the identified markets is at least national.

| (h) | Mobile payments services, potentially further segmented between (i) proximity/offline mobile payments, and (ii) remote/online mobile payments (including or not payment intermediation services) as well as segmented based on the platform used (smart mobile or wrist-worn wearable device). The geographic scope of the identified markets is at least national. |
| --- | --- |

(h)

Mobile payments services, potentially further segmented between (i) proximity/offline mobile payments, and (ii) remote/online mobile payments (including or not payment intermediation services) as well as segmented based on the platform used (smart mobile or wrist-worn wearable device). The geographic scope of the identified markets is at least national.

| (i) | Other digital apps and services: (i) navigation apps offering turn-by-turn navigation, (ii) virtual assistants, (iii) digital music distribution services, and (iv) digital translation services, with various possible segments. The geographic scope of the market for (i) navigation apps is at least EEA-wide if not worldwide and for (ii) virtual assistants, (iii) digital music distribution services and (iv) digital translation services at least national. |
| --- | --- |

(i)

Other digital apps and services: (i) navigation apps offering turn-by-turn navigation, (ii) virtual assistants, (iii) digital music distribution services, and (iv) digital translation services, with various possible segments. The geographic scope of the market for (i) navigation apps is at least EEA-wide if not worldwide and for (ii) virtual assistants, (iii) digital music distribution services and (iv) digital translation services at least national.

| (j) | Digital healthcare: (i) provision of cloud and data analytics services, (ii) patient monitoring services, (iii) provision of data for medical research and real-world evidence, and (iv) corporate wellness programmes. The geographic scope of the market for (i) the provision of cloud and data analytics services is at least EEA-wide, (ii) patient monitoring services is at least EEA-wide if not global, (iii) provision of data for medical research and real-world evidence is at least EEA-wide, (iv) corporate wellness programmes is at least EEA-wide. |
| --- | --- |

(j)

Digital healthcare: (i) provision of cloud and data analytics services, (ii) patient monitoring services, (iii) provision of data for medical research and real-world evidence, and (iv) corporate wellness programmes. The geographic scope of the market for (i) the provision of cloud and data analytics services is at least EEA-wide, (ii) patient monitoring services is at least EEA-wide if not global, (iii) provision of data for medical research and real-world evidence is at least EEA-wide, (iv) corporate wellness programmes is at least EEA-wide.

3.   COMPETITIVE ASSESSMENT

| (5) | The Commission assessed the horizontal effects of the Transaction on databases (and data collection capabilities), that is Fitbit as source of user data for possible use in (i) online advertising services, (ii) general search services, and (iii) digital healthcare services. Otherwise, there are no horizontally affected markets arising from the Transaction. |
| --- | --- |

(5)

| (6) | In addition, the Transaction creates vertical relationships between Google’s and Fitbit’s activities. The Commission assessed the vertical effects of the Transaction as regards possible foreclosure from access to Fitbit user data to the detriment of digital healthcare players, foreclosure from access to Wear OS to the detriment of wrist-worn wearable suppliers, foreclosure from access to Google’s apps/services to the detriment of wrist-worn wearable suppliers, foreclosure from access to Google Play to the detriment of wrist-worn wearable suppliers, and foreclosure from access to Fitbit App Gallery to the detriment of wrist-worn wearable suppliers. |
| --- | --- |

(6)

| (7) | The Transaction also creates conglomerate relationships between Google’s and Fitbit’s activities. The Commission assessed the conglomerate effects of the Transaction as regards leveraging of Google’s position in Android OS into the wrist-worn wearables market. |
| --- | --- |

(7)

| (8) | Finally, the Commission assessed possible concerns stemming from Google’s access to commercially sensitive information. |
| --- | --- |

(8)

3.1.   Horizontal effects

| (9) | While the Transaction does not give rise to any horizontally affected markets in a traditional sense with regard to databases and data collection capabilities, the Commission considers that the Transaction will combine under the ownership of Google the databases (and data collection capabilities) of the Parties. |
| --- | --- |

(9)

| (10) | The Commission has examined whether, the combination of Fitbit’s and Google’s data (and data collection capabilities) could give rise to anticompetitive horizontal non-coordinated effects by strengthening Google’s market position in the supply of (i) online search and display advertising services and ad tech services, (ii) general search services, or (iii) digital healthcare services. |
| --- | --- |

(10)

| (11) | Based on the approach adopted in Apple/Shazam (2), the Commission notes that there are certain legal limitations to combining datasets such as the applicable EU rules dealing with data protection, and most notably to the General Data Protection Regulation (‘GDPR’) and the Union rules dealing with privacy and the protection of the confidentiality of communications, notably the e-Privacy Directive. |
| --- | --- |

(11)

| (12) | The Commission considers that, although pre-Transaction Fitbit is not competing in the same markets as Google, the Transaction would give Google control over an important asset, i.e., the Fitbit data, that would further strengthen Google’s dominance in the markets for the supply of online search advertising services. (3) The Commission maintains its concerns, as set out in the Article 6(1)(c) decision, as to the compatibility of the Transaction with the internal market relating to a strengthening of Google’s dominant position in the supply of online search advertising (and possible segments thereof), the supply of online display advertising markets (and possible segments thereof), as well as in the market for ‘ad tech’ services. |
| --- | --- |

(12)

| (13) | In the Commission’s view, such concerns would exist in view of: (i) the relevance of the data (and data collection capabilities) acquired by Google as a result of the Transaction for serving and displaying ads, (ii) Google’s position in the relevant markets related to the supply of online search advertising services, and sub-markets/segments thereof, (iii) the strengthening of Google’s market position and impairment of rivals’ expansion in the mentioned markets as a result of the data combination, and (iv) the absence of countervailing entry or buyer power. |
| --- | --- |

(13)

| (14) | In relation to online display advertising services and possible sub-segments, as well as ‘ad tech services’, the Commission considers that despite holding some degree of market power, Google’s position in these markets is significantly weaker than on the markets for online search advertising based on Google’s market shares and the fact that it cannot be excluded that the market for online display advertising is characterised by the existence of barriers to entry and expansion and the lack of countervailing buyer power. |
| --- | --- |

(14)

| (15) | The Commission considers that the Transaction will not likely lead to any significant impediment of effective competition as a consequence of the possible horizontal effects arising from the combination of Google’s and Fitbit’s user databases and data collection capabilities for use in the field of general search services. Google has been found to hold a dominant position in each national market for the supply of general search services since 2008, apart from in the Czechia, where Google holds a dominant position since 2011. However, the results of the market investigation suggest that Fitbit data, despite being potentially a valuable input in the markets for general search services, is less relevant for general search than it is in the case of online search ads targeting. |
| --- | --- |

(15)

| (16) | As regards Fitbit as a source of data for possible use in digital healthcare services, the Commission considers that the Transaction will not likely lead to any significant impediment of effective competition as a consequence of horizontal effects arising from the combination of Google’s and Fitbit’s user databases and data collection capabilities. This is because the Parties are neither actual nor potential competitors in the collection or marketing of user health and fitness data. As regards actual competition, neither party is currently marketing their user data, but the circulation of data is a consequence of the users’ decision to actively share them with third parties (apps and websites) that offer value added services to them. As regards potential competition, the Commission assessed the impact of the Transaction, by investigating the rationale of the Transaction and considering the current status of the market for digital healthcare services. In those respects, the Commission established that digital health was clearly not the main deal rationale of the Transaction and that there are multiple players active in digital healthcare (in particular in cloud and data analytics, patient monitoring services, provision of data for medical research and real-world evidence and corporate wellness programmes where one of the Parties is active). |
| --- | --- |

(16)

3.2.   Vertical effects

3.2.1.   Foreclosure from access to Fitbit data to the detriment of digital healthcare players (input foreclosure)

| (17) | The Commission considers, based on the results of the market investigation, that it cannot be excluded that post-Transaction Google may have the technical ability to engage in input foreclosure by restricting the access to the Web API. While, in general terms, user health data are available from a number of data sources, the user data of Fitbit’s users are only available through the Web API and a number of players in digital healthcare access such data through the Web API, in order to provide services to Fitbit users and obtain their data in return. |
| --- | --- |

(17)

| (18) | Furthermore, based on the results of the market investigation, the Commission considers that it cannot be excluded that, after the Transaction, Google will have the incentive to restrict access to the Fitbit Web API. |
| --- | --- |

(18)

| (19) | Restricting access to Fitbit’s Web API post-Transaction may have an impact on the success of start-ups. In addition, the Commission notes that, should access to the Web API be restricted or discontinued, at least a part of Fitbit users will lose access to at least one app that might be very desirable to them. |
| --- | --- |

(19)

| (20) | Therefore, the Commission maintains its concerns, as set out in the Art. 6(1)(c) decision, as to the compatibility of the Transaction with the internal market as a result of input foreclosure of providers of digital healthcare services caused by the merged entity restricting those providers’ access to the Web API and, therefore, their access to the data of Fitbit’s users.. |
| --- | --- |

(20)

3.2.2.   Foreclosure from access to Wear OS to the detriment of wrist-worn wearable suppliers (input foreclosure)

| (21) | The Commission concluded that post-Transaction Google will not have the ability to stop or degrade access to Wear OS for downstream competitors of Fitbit. The Commission considers that the largest suppliers of smartwatches are fully vertically integrated, i.e. their smartwatches run solely on their own (proprietary) OSs. In addition, Wear OS devices’ market share in the downstream market for supply of smartwatches has constantly declined over the past three years, reaching a level of below or close to 5%. Wear OS therefore accounts for only a small share of wrist-worn wearable devices sold to consumers today and it can be excluded that Wear OS is a critical component or significant source of product differentiation. |
| --- | --- |

(21)

| (22) | The Commission considers that Google would not have the incentive to engage in an input foreclosure strategy with regard to Wear OS and the Transaction will not significantly change Google’s incentive and Google will continue to aim for the widest possible distribution of Wear OS. This is because Fitbit only has a small market share in the growing smartwatches segment. Furthermore, Google benefits from licensees’ use of Wear OS by keeping users in the Android ecosystem. |
| --- | --- |

(22)

| (23) | Regardless of whether Google has either the ability or the incentive to foreclose competing downstream rivals with regard to the supply of Wear OS, such strategy would be unlikely to have any material impact on competition (only about [5-10]% of all smartwatches worldwide integrated Wear OS in 2019). |
| --- | --- |

(23)

3.2.3.   Foreclosure from access to various Google apps to the detriment of wrist-worn wearable suppliers (input foreclosure)

| (24) | The Commission considers that Google would not have the ability to engage in an input foreclosure strategy. The Commission notes that Google’s apps have clearly not been an important input for wrist-worn wearable devices in the past. None of Google’s apps (Google Search, Google Assistant, Google Fit, Google Play, Google Play Music and its successor YouTube Music, Google Maps, Google Translate) are currently available on devices other than those running on Wear OS or have only very recently become available on the Apple Watch. |
| --- | --- |

(24)

| (25) | The Commission considers that Google would not have the incentive to engage in an input foreclosure strategy with regard to Google apps post-Transaction. This is because (i) Fitbit only has a small market share in the growing smartwatches segment, (ii) Google benefits from licensees’ use of its apps, (iii) the extent to which Google would have developed the Google apps for third-party platforms absent the Transaction remains unclear, and (iv) based on Google observed strategy in the smart mobile device sphere, the Commission expects that Google will push its Google apps rather than foreclose them once competing wearable platforms have reached a sufficient size. |
| --- | --- |

(25)

| (26) | Regardless of whether Google has either the ability or the incentive to foreclose competing downstream rivals with regard to the supply of Google apps, such strategy would be unlikely to have any material impact on competition. The most popular smartwatches today do not run on Wear OS and hence do not currently have access to Google apps. Even if Google apps become relatively more important in the next two to three years, it is unlikely that their importance increases to such an extent that a hypothetical foreclosure strategy would foreclose wearable rivals. |
| --- | --- |

(26)

3.2.4.   Foreclosure from access to Google Play to the detriment of wrist-worn wearable suppliers (input foreclosure)

| (27) | The Commission considers that the merged entity would have the partial ability to engage in a foreclosure strategy with regard to Google Play. (4) In Google Android, Google has been found dominant in the supply of Android app stores in a worldwide market (excluding China) between 2011 and 2016 and there is no indication that it would be appropriate to take a different view in the case at hand. While respondents to the market investigation consider that wearable OEMs do not have effective counterstrategies, the Commission notes that Android platform offers multiple distribution channels. This is because (i) Android OEMs can preinstall wearable companion apps on mobile devices and thus ensure the availability of those apps to users, (ii) companion apps also can be distributed through app stores other than Play, including first-party (i.e., OEM) and third-party app stores, and (iii) even if certain Android OEMs do not preinstall their companion app or do not offer an alternative app store today, they could start using these strategies in case Google started implementing a foreclosure strategy. |
| --- | --- |

(27)

| (28) | In any case, the Commission notes that competition rules, in particular Article 102 TFEU and Article 54 of the EEA Agreement will continue to apply to the merged entity post-Transaction, regardless of the outcome of the present assessment under the Merger Regulation. |
| --- | --- |

(28)

| (29) | As regards incentives, the Commission considers that it is unlikely that Google would implement a foreclosure strategy via the Play Store. This is because (i) at least Android smartphone OEMs could circumvent any kind of foreclosure strategy by preinstalling their companion apps and/or using their own app store and the effect would thus be limited to non-integrated wearable OEMs, and (ii) more limited foreclosure strategies (e.g., deteriorating rival wearables’ companion app’ rating and/or positioning within the Play Store or delaying their approval in case of updates or new releases) are unlikely to have a significant effect on user switching. In addition, in terms of reputation effects, the most effective foreclosure strategy (i.e., refusal to access Google Play) is likely to be observable by authorities, app developers and users. |
| --- | --- |

(29)

| (30) | Regardless of whether Google has either the ability or the incentive to foreclose competing downstream rivals with regard to the supply of Wear OS, the Commission considers that a foreclosure strategy in relation to Google Play would not have significant impact on competition as it would not significantly reduce the sales prospects of Fitbit’s wearable competitors. |
| --- | --- |

(30)

3.2.5.   Foreclosure from access to Google Search to the detriment of wrist-worn wearable suppliers (input foreclosure)

| (31) | The Commission considers that, in spite of Google is dominance in the market for general search services (5), post-Transaction the merged entity would not have the ability to foreclose competing wearable device manufacturers by discriminating in favour of Fitbit in Google Search results. The three major distribution channels for wearable devices are brick-and-mortar stores (physical stores), online sales via resellers’ websites, and online sales via the OEM’s own websites. Based on the results of the market investigation, sales in brick-and-mortar stores were the most important distribution channel, resellers’ websites the second most important distribution channel) and online sales via wearable OEMs’ own website account only for a small share of sales. The Commission considers that even for this distribution channel Google Search traffic is not very important. |
| --- | --- |

(31)

| (32) | The Commission considers that post-Transaction Google would not have the incentive to discriminate in favour of Fitbit in Google Search results. While by discriminating against Fitbit’s competitors in Google Search results, Google is indeed likely to increase the sale of Fitbit wrist-worn wearable devices, the potential expansion of its market share in wrist-worn wearable devices and the associated gains are likely to be very limited due to the small relevance of Google Search for sales of wrist-worn devices. Several factors indicate that Google would suffer substantial losses from discriminating Fitbit’s competitors in Google Search results. In particular, such a strategy would interfere with Google’s search algorithm. |
| --- | --- |

(32)

| (33) | Regardless of whether the merged entity has either the ability or the incentive to denying access to Google Search results to competing wearable OEMs, the Commission considers that such a strategy would not have any material impact on competition. This is because sales in physical stores and via online resellers are wearable OEMs’ most important distribution channels and sales through wearable OEMs’ own websites constitute the least important distribution channel. |
| --- | --- |

(33)

3.2.6.   Foreclosure from access to Fitbit app stores to the detriment of app developers (input foreclosure)

| (34) | As regards ability, the Commission considers that since the Fitbit App Gallery is the exclusive app store for Fitbit wearable devices, Fitbit has a 100 % share of Fitbit wearable device app stores. However, the Commission considers that, under any reasonable market definitions for apps, the Fitbit App Gallery is not an important input for third-party app developers. Therefore, post-Transaction the merged entity would not have the ability to foreclose competing app developers by denying access to the Fitbit Gallery. |
| --- | --- |

(34)

| (35) | As regards incentives, by limiting access to competing apps to Fitbit devices, Google is indeed likely to increase the use of its apps by Fitbit users. However, the potential expansion of its market shares in Google apps and the associated gains are likely to be very limited. This is because (i) the use of apps on wearable devices is limited, (ii) the use of Google apps on Fitbit devices would account for only a small share of overall use of apps on wearable devices, and (iii) if competing apps are foreclosed, it is not clear that this will lead to an equivalent increase in the use of apps provided by Google. Several factors indicate that Google would suffer substantial losses from denying access to Fitbit wearables to competing apps, mainly because limiting access to competing apps would make Fitbit wearables relatively less attractive to customers. |
| --- | --- |

(35)

| (36) | Regardless of whether the merged entity has either the ability or the incentive to denying access to Fitbit wearables to competing app developers, the Commission considers that such strategy would not have any material impact on competition. Foreclosing competing app developers from the Fitbit App Gallery would only affect a small fraction of market output and would therefore not have any material impact on competition. |
| --- | --- |

(36)

3.3.   Conglomerate effects

3.3.1.   Leveraging of Google’s position in Android OS into the wrist-worn wearables market

| (37) | The Commission considers that the merged entity would have the ability to engage in a foreclosure strategy with regard to Android for the following reasons: (i) there is a large pool of common customers of Android smartphones and Android-compatible wearable devices (excluding only users of Apple products, i.e. iPhone and Apple Watch or iPhone paired with a third-party wearable device), (ii) Google controls Android and has a dominant market position in the supply of licensable OS for smart mobile devices, (iii) while a degradation does not seem possible under the current Android business model, Google has control over Android and could change its business model, and (iv) Google could prevent attempts of Android smartphone OEMs to circumvent a degradation. |
| --- | --- |

(37)

| (38) | In particular, the Commission considers that Google could degrade the Android APIs offered to third party OEMs, reserving certain functionalities only for its own wrist-worn wearable devices. The Commission considers that Google could find technical or contractual means to implement a degradation. Alternatively, Google could continue to include current functionalities in Android Open Source Project (‘AOSP’), however, withhold any future developments from AOSP and implement such improvements in the proprietary layer for use by Fitbit. |
| --- | --- |

(38)

| (39) | The Commission considers that Android smartphone OEMs have very limited counterstrategies available, which do not prevent Google’s ability to pursue a degradation strategy. That is because even if OEMs were technically able to reverse an API degradation, Google could ultimately prevent OEMs from using the forked Android version as OEMs would stand to lose access to GMS, including Google’s suite of mobile apps. |
| --- | --- |

(39)

| (40) | The Commission considers that Google shows the incentive to degrade interoperability with regard to Android because: (i) Google would not necessarily incur reputational damage, (ii) the quantification submitted by the Notifying Party, based on a standard vertical arithmetic framework, does not convincingly show that a degradation strategy would be unprofitable for Google. Based on the results of the market investigation, the Commission considers that there may be further elements which could increase Google’s incentive. For example, Google could use Fitbit devices to distribute its apps and services, thereby increasing the gains from additional Fitbit sales. |
| --- | --- |

(40)

| (41) | The Commission considers that a degradation strategy could have significant impact on competition by reducing the sales prospects of Fitbit’s wearable competitors. |
| --- | --- |

(41)

| (42) | Therefore, the Commission maintains its concerns, as set out in the Article 6(1)(c) decision, as to the compatibility of the Transaction with the internal market relating to Google’s leveraging of its dominant position in the supply of licensable OSs for smart mobile devices to the market for the supply of wrist-worn wearable devices (and possible sub-segments thereof). |
| --- | --- |

(42)

3.4.   Access to commercially sensitive information

| (43) | The Commission also assessed the effects of the Transaction on access to commercially sensitive information (as Fitbit allows its users to connect their Fitbit accounts with a number of third-party apps, Fitbit might then be able to gain access to additional information on the respective third-party apps) and whether this could lead to any non-horizontal non-coordinated anticompetitive effects. |
| --- | --- |

(43)

| (44) | The Commission concluded that post-Transaction the merged entity would likely have neither the ability nor the incentive to significantly impede effective competition with competing third-party apps as a result of any access to commercially sensitive information and that, in any event, the effects of such a strategy would not be significant. |
| --- | --- |

(44)

4.   UNDERTAKINGS SUBMITTED BY THE PARTIES

| (45) | In order to remove the competition concerns arising from the Transaction, the Notifying Party submitted commitments both in Phase I and in Phase II. |
| --- | --- |

(45)

| (46) | The Commitments comprise three elements:






  a) | A commitment not to use any measured body data or health and fitness activity location data for advertising purposes and to maintain data separation (the ‘Ads Commitment’); |
| --- | --- | --- |

(46)

a)

A commitment not to use any measured body data or health and fitness activity location data for advertising purposes and to maintain data separation (the ‘Ads Commitment’);

| b) | A commitment to maintain access for third parties, subject to user consent and without charge for access, to a series of measured body data (the ‘Web API Access Commitment’); |
| --- | --- |

b)

A commitment to maintain access for third parties, subject to user consent and without charge for access, to a series of measured body data (the ‘Web API Access Commitment’);

| c) | A commitment to continue to license free, public APIs allowing interoperability between third-party wearable devices and the Android operating system on smartphones, offering at least the core functionalities of the APIs that exist as of the effective date in the Android operating system (the ‘Android APIs Commitment’). |
| --- | --- |

c)

A commitment to continue to license free, public APIs allowing interoperability between third-party wearable devices and the Android operating system on smartphones, offering at least the core functionalities of the APIs that exist as of the effective date in the Android operating system (the ‘Android APIs Commitment’).

4.1.   Initial Commitments

4.1.1.   Ads Commitment

| (47) | By the Ads Commitment, Google commits, for ten years following the Commission’s approval of the Concentration (i) not to use any Measured Body Data or Health and Fitness Activity Location Data for Google Ads, and (ii) to maintain the auditable holding separate of Measured Body Data and Health and Fitness Activity Location Data from any dataset within Google accessible for use by Google Ads. |
| --- | --- |

(47)

| (48) | The Ads Commitment was originally submitted in Phase I. The Commission concluded that even if, conceptually, a commitment envisaging the creation of a silo for storage of data subject to strict access rules could be suitable to solve the competition concerns identified by the Commission, it was still unclear if in practice the Phase I commitment would be effective in removing the serious doubts identified in the opening decision, for the following main reasons: (i) it was unclear whether the scope of the data protected by the Data Silo Commitment was sufficient; (ii) the definition of ‘Google Ads’ was too narrow; (iii) the details of the data protection system were insufficient for the Commission to be able to assess the effectiveness of the Data Silo Commitment; and (iv) the duration was insufficient. The Ads Commitment submitted in Phase II contains improvements in all four respects. |
| --- | --- |

(48)

4.1.2.   Web API Access Commitment

| (49) | By the Web API Access Commitment, Google commits, for five years following approval of the Concentration, to maintaining access for API Users, subject to user consent and without charge for access, to Supported Measured Body Data, subject to:






  (1) | API Users’ continued compliance with the Fitbit Platform Terms of Service (where access is made available via the Fitbit Web API) or the Terms of Service and the Services User Data Policy (where access is made available via a Relevant Google API). Google can terminate access for violation of these terms; and |
| --- | --- | --- |

(49)

(1)

API Users’ continued compliance with the Fitbit Platform Terms of Service (where access is made available via the Fitbit Web API) or the Terms of Service and the Services User Data Policy (where access is made available via a Relevant Google API). Google can terminate access for violation of these terms; and

| (2) | API Users’ continued compliance with the Privacy And Security Requirements. Google can terminate access for violation of these requirements or temporarily suspend access where Google has a reasonable belief of violations of such requirements. |
| --- | --- |

(2)

API Users’ continued compliance with the Privacy And Security Requirements. Google can terminate access for violation of these requirements or temporarily suspend access where Google has a reasonable belief of violations of such requirements.

4.1.3.   Android APIs Commitment

| (50) | By the Android API Commitment, Google commits, for ten years following the Commission’s approval of the Concentration, to:






  (1) | Continue to license free, public APIs to Android OEMs offering core functionalities that Wrist-Worn Wearable Devices may use to interoperate with an Android Smartphone; |
| --- | --- | --- |

(50)

(1)

Continue to license free, public APIs to Android OEMs offering core functionalities that Wrist-Worn Wearable Devices may use to interoperate with an Android Smartphone;

| (2) | Make those APIs available without differentiating their availability or functionality depending on whether they are accessed by a First-Party Wrist-Worn Wearable Device or Companion App or a Third-Party Wrist-Worn Wearable Device or Companion App; |
| --- | --- |

(2)

Make those APIs available without differentiating their availability or functionality depending on whether they are accessed by a First-Party Wrist-Worn Wearable Device or Companion App or a Third-Party Wrist-Worn Wearable Device or Companion App;

| (3) | Not to degrade those APIs so as to reduce their functionality to Third-Party Wrist-Worn Wearable Devices relative to First-Party Wrist-Worn Wearable Devices; and |
| --- | --- |

(3)

Not to degrade those APIs so as to reduce their functionality to Third-Party Wrist-Worn Wearable Devices relative to First-Party Wrist-Worn Wearable Devices; and

| (4) | Continue to make publicly available, for free, Developer Documentation relating to those APIs. |
| --- | --- |

(4)

Continue to make publicly available, for free, Developer Documentation relating to those APIs.

4.2.   Revised Phase II Commitments

| (51) | The Revised Phase II Commitments comprise the same three elements as the initial Phase II Commitments with the following improvements. |
| --- | --- |

(51)

4.2.1.   Ads Commitment

| (52) | Definitions: a series of definitions have been amended and refined mainly to avoid circumvention and to ensure future-proofness of the Ads Commitment; |
| --- | --- |

(52)

| (53) | Monitoring: the role of the Monitoring Trustee in the verification of the technical measures put in place to comply with the Data Separation has been clarified and improved; |
| --- | --- |

(53)

| (54) | Opt-in: EEA Users will be presented the choice to grant or deny use by Google Services other than Google Ads of any Measured Body Data; |
| --- | --- |

(54)

| (55) | Duration: the Commission may decide to extend the duration by up to an additional ten years having justified the necessity for such an extension during the final year of the initial ten year period. |
| --- | --- |

(55)

4.2.2.   Web API Access Commitment

| (56) | Definitions: a series of definitions have been amended and refined mainly to avoid circumvention and to ensure future-proofness of the Web API Access Commitment; |
| --- | --- |

(56)

| (57) | Future-proofness: the Commitment includes an Update Mechanism to replicate what Fitbit would have done on a standalone basis. Based on the Update Mechanism, new data types will be shared through the Web API within one to two years if they qualify as Supported Measured Body Data and at least 3 of the 5 largest wearable OEMs make available an equivalent data type; |
| --- | --- |

(57)

| (58) | Ex-ante review of Google’s and Fitbit’s terms and conditions by Monitoring Trustee: Google must notify proposed amendments ten days before they become effective or, in case such changes are urgent, as soon as possible and no later than five days from that date; |
| --- | --- |

(58)

| (59) | Scope of data: the Web API Access also covers data of non-EEA Users for any API User that has an application or website made available to EEA Users; |
| --- | --- |

(59)

| (60) | Duration: extended from 5 to 10 years. |
| --- | --- |

(60)

4.2.3.   Android APIs Commitment

| (61) | Definitions: a series of definitions have been amended and refined mainly to avoid circumvention and to ensure future-proofness of the Android APIs Commitment; |
| --- | --- |

(61)

| (62) | Scope: the list of core functionalities has been extended according to market participants’ feedback and it has been clarified that the Commitment also includes improvements, including as a result of updates and bug fixes; |
| --- | --- |

(62)

| (63) | Future-proofness: no discrimination against wrist-worn wearable device OEMs (i) by withholding, denying, or delaying access to functionalities of Android APIs (AOSP or Google Mobile Services) that Google makes generally available, without charge for access, to other Android smartphone app developers as well as no discrimination in relation to (ii) changing, replacing, or retiring these Android APIs, (iii) access to Developer Previews, and (iv) access to Developer Documentation; |
| --- | --- |

(63)

| (64) | Circumvention: no circumvention via (i) Google Play Store, or (ii) error/warning messages. |
| --- | --- |

(64)

4.3.   Assessment of the undertakings submitted

| (65) | The Commission considers that, in order to be acceptable, the proposed commitments must be capable of rendering a concentration compatible with the internal market as they prevent a significant impediment to effective competition in all relevant markets in which competition concerns were identified. In this case, the commitments needed to eliminate the competition concerns identified by the Commission, namely with respect to: (i) supply of online search advertising services in different EEA countries and the UK, (ii) the digital healthcare markets in the EEA countries and the UK, and (iii) interoperability with Android OS. |
| --- | --- |

(65)

| (66) | The Decision concludes that the Final Commitments address the competition issues raised by the Transaction in their entirety. The Commission also concludes that the Final Commitments are capable of being implemented effectively within a short period of time. |
| --- | --- |

(66)

CONCLUSION

For the reasons mentioned above, in the Decision the Commission concluded that, subject to compliance with the commitments given by the Notifying Party, the Transaction would not significantly impede effective competition in the internal market or in a substantial part of it. Consequently, the Decision declares the concentration compatible with the internal market, in accordance with Articles 2(2) and Article 8(2) of the Merger Regulation and Article 57 of the EEA Agreement.

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(1)  OJ L 24, 29.1.2004, p. 1.

(2)  Commission decision of 6 September 2018 in case M.8788 – Apple/Shazam, recitals 225-235.

(3)  In accordance with to paragraph 36 in the Horizontal Merger Guidelines, a merger can significantly impede effective competition if the merged entity gains such a degree of control over an asset that expansion or entry by rival firms may be more difficult. In the case at hand, such an assets is Fitbit’s data.

(4)  Google Play is the Android app store offered by Google, which Google has offered since 2008. The Play Store is part of Google Mobile Services (‘GMS’), the bundle of Google apps and services that Google licenses together.

(5)  With a market share of above 90% in almost all EEA countries in 2019, except for Czechia (84.4%), Google is dominant in the market for general search services.

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V Announcements

OTHER ACTS

European Commission

| 21.5.2021 | EN | Official Journal of the European Union | C 194/17 |
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21.5.2021

EN

Official Journal of the European Union

C 194/17

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Publication of an application for registration of a name pursuant to Article 50(2)(a) of Regulation (EU) No 1151/2012 of the European Parliament and of the Council on quality schemes for agricultural products and foodstuffs

(2021/C 194/06)

This publication confers the right to oppose the application pursuant to Article 51 of Regulation (EU) No 1151/2012 of the European Parliament and of the Council (1) within three months from the date of this publication.

SINGLE DOCUMENT

‘SZEGEDI TÜKÖRPONTY’

EU No: PGI-HU-02491 –6. 3.2019

PDO ( ) PGI (X)

1.   Name(s)

‘Szegedi tükörponty’

2.   Member State or Third Country

Hungary

3.   Description of the agricultural product or foodstuff

3.1.   Type of product

Class 1.7: Fresh fish, molluscs, and crustaceans and products derived therefrom

3.2.   Description of the product to which the name in (1) applies

The geographical indication ‘Szegedi tükörponty’ refers to farmed live fish of the State-recognised carp species Szeged mirror carp and its cleaned, filleted flesh.

The fish is greenish-brown in colour, with a yellow belly and reflective cycloid scales. Its lateral line is regular, with a high back. The ratio between body length and height (profile index) is 2,3-2,4. The fish are sold when they reach their third summer after hatching, at a weight of between 1 800 and 2 400 g.

‘Szegedi tükörponty’ has flaky, reddish, flavoursome flesh, with a fresh aroma and no side-tastes. It is high in protein (more than 19%) and low in fat (less than 10 %).

3.3.   Feed (for products of animal origin only) and raw materials (for processed products only)

The fish’s main food source are the natural organisms found in the ponds (plankton, worms and insect larvae). Other feed (feedingstuffs, maize, wheat) with a starch content of 2,5-3,0 per kg of body weight is used to supplement the natural food supply according to the age of the fish. The feed must be free of GMOs.

The fish are fed according to their appetite until the end of June. From then on the feed use per pond is decided on the basis of a trial fishing assessment.

The supplementary feed used (grain feed, commercial concentrate and compound feed and feedingstuffs) are not available within the defined geographical area and are therefore sourced from outside the area.

In addition to their natural sources of food, the fish in different age classes are fed throughout the year as follows:

| — | broodfish: plain wheat and maize throughout the year, protein-rich fish feed before propagation; |
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broodfish: plain wheat and maize throughout the year, protein-rich fish feed before propagation;

| — | early fry: early fry feed; |
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—

early fry: early fry feed;

| — | fingerlings: fingerling feed, finishing with broken wheat or broken maize; |
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fingerlings: fingerling feed, finishing with broken wheat or broken maize;

| — | two-summer fish: broken wheat, broken maize and whole wheat and maize grains; |
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two-summer fish: broken wheat, broken maize and whole wheat and maize grains;

| — | market-ready (three-summer) fish: good-quality wheat and maize grains. |
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market-ready (three-summer) fish: good-quality wheat and maize grains.

Depending on the weather, broodfish in winter ponds or storage ponds (mainly juveniles) are given small quantities of maize or wheat grains in winter.

3.4.   Specific steps in production that must take place in the identified geographical area

All stages of the production of ‘Szegedi tükörponty’ (breeding, propagation and rearing) must take place in the geographical area defined in point 4.

3.5.   Specific rules concerning slicing, grating, packaging, etc. of the product the registered name refers to

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3.6.   Specific rules concerning labelling of the product the registered name refers to

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4.   Concise definition of the geographical area

The Szeged administrative area north of the M43, between the M5 motorway and the road ‘Irma majori út’ in Sándorfalva, as well as the Sándorfalva peripheral zone; a system of ponds with circular embankments consisting of 141 individual ponds located on the land along the right-hand and left-hand banks of sections 1+120 and 11+120 of the Algyő main canal.

5.   Link with the geographical area

The product’s link with the geographical area is based on the quality of the product.

Situated to the north of Szeged, near Hungary’s southern border, Lake Fehér was formed over the course of centuries, as the natural catchment basin of the South Great Plain with its saline soil filled with water during times of flooding.

The minerals mixed together and accumulated over centuries of flooding affected the original soil beneath the lake to such an extent that areas that dried up during the summer turned white from the salts left behind. A system of fish ponds consisting of a total of 141 ponds and covering more than 2 000 hectares was constructed on the original soil on impermeable ground rich in sodium carbonate, using embankments. The lake water has a pH of more than 8.

Construction of the Fehértó enclosed fish ponds system was started in 1932 and completed in 1960. The ‘Új halastó’ (new fish pond) facility came into operation in 1982. This resulted in the creation of the fish farm’s system of 141 contiguous fish ponds covering more than 2 000 ha and forming part of a single body of water and water-supply system.

The area has its own microclimate. The large body of water withstands minor weather events. Cold air flowing in with large weather fronts and heavy waves can cool the waters of the ponds by 4-5 °C during a single day. There are on average 32 days per year when temperatures rise above 30 °C, and 89 summer days when temperatures reach 25 °C, while there are more than 2 100 hours of sunshine. One benefit of the climate is that the fish can be moved outside by mid-March and can be fed early, the autumn is long and the ice on the fish ponds often melts in winter.

The water quality of the fish ponds is ensured by the fact the water is supplied via a double pumping system from the Algyő main canal, which is fed partly by groundwater and partly by the river Tisza.

Decades of research taking into account environmental conditions and fish farming methods have resulted in the cultivation of a genetically resistant fish variety that is low in fat, well adapted to the local conditions and has been granted State recognition. The fish are farmed using technology tailored to different age groups.

The production technology used for fingerlings, two-summer broodfish and three-summer market-ready fish has been developed and consistently applied taking into account the saline production environment.

The fact that the fish ponds are built on saline soil ensures excellent oxygen supply, so there is no opportunity for substances detrimental to flavour to accumulate in the fish’s body. The alkaline water of the ponds gives the fish a particular vitality and resilience. The flaky, reddish, flavoursome flesh of the fish farmed in these ponds, and its fresh aroma with no side-tastes, can be directly attributed to these characteristics.

Larvae are produced by the artificial fertilisation in test tubes of eggs taken from the female stock population. During the first year, fingerlings are reared in small ponds measuring a few hectares, and the naturally available food must be supplemented with fingerling feed. The feeding of fingerlings is broken down into several stages, with feeding adjusted to the energy needs of the age group during the early and late rearing stages. During the early rearing stage, fingerlings must be given feed with a high-protein content (25-30 %). As they grow, this is changed to a feed with 20-25 % protein, before finishing the late rearing stage with a feed with a protein content of 20 %.

The main source of food for two-summer and three-summer fish is the food found naturally in the water (plankton, insect larvae and worms). The use of organic fertiliser helps to ensure the quantity of natural food in the ponds. The ready availability of natural sources of nutrition promotes the development of muscle structure and the high protein content of the fish. Fingerlings are given feed, while two-summer and three-summer fish are fed broken or whole wheat and maize grains to meet their energy needs.

Fish are fed according to their appetite until the end of June, and from then on the quantity of feed to be used is determined on the basis of a trial fishing analysis. This method makes it possible to rear fish with a low fat content.

The quality and flavour of the farmed fish are directly influenced by the good oxygen supply at the lake bed in the fish ponds created on saline soil, so there is no opportunity for substances detrimental to flavour to accumulate in the fish’s body.

‘Szegedi tükörponty’ has flaky, reddish, flavoursome flesh, with a fresh aroma and no side-tastes. It is high in protein (more than 19 %) and low in fat (less than 10 %). These special qualities are attributable to the individually bred variety and to the environmental conditions and farming methods (the location of the fish ponds on saline land and the feed used).

The flesh of ‘Szegedi tükörponty’ is high in protein, low in fat and very flavoursome. These qualities help to encourage the consumption of fish.

Filleted ‘Szegedi tükörponty’ is very popular with the hospitality sector and consumers,

Reference to publication of the product specification

(the second subparagraph of Article 6(1) of this Regulation)

http://gi.kormany.hu/foldrajzi-arujelzok

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(1)  OJ L 343, 14.12.2012, p. 1.

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