Abstract;Judgment — ECLI:EU:T:2024:634
Date: 2024-09-18
Language of the case: English
Subject matter: Competition;Dominant position
Procedure: Action for annulment - unfounded;Action for annulment - successful

summary manner that it seems impossible to draw consequences from it on the possible foreclosure effects of that clause. 824 That being so, Vinden asserts, before the Court, that the placement clause has not had an effect on its advertising strategy in so far as AFS generated higher revenues than those of other competing online search advertising intermediation services. Nevertheless, it must be held that that assertion does not suffice, even taking into account the replies of [confidential], [confidential], [confidential] and of [confidential], to call into question the tenor of the replies of the [confidential] group and of [confidential], mentioned in recital 499 of the contested decision. 825 In those conditions, as follows from paragraph 802 above, the Commission could rightly take into consideration the examples of replies of direct partners set out in recital 499 of the contested decision as elements that could corroborate its assessment that the placement clause had been capable of preventing direct partners from evaluating the commercial interest in sourcing from Google’s competing intermediaries, even though other direct partners had indicated to it that they had not been affected by that clause. (2) Capability of the placement clause to prevent direct partners from being able to adopt certain configurations for their results pages, when the user visited those pages from a desktop device 826 Google claims that most direct partners requested that their websites display more of its ads than the placement clause required. Specifically, it notes that direct partners which on average requested fewer than four of its ads generated less than [confidential]% of AFS revenues between 2011 and 2015. Moreover, the Commission’s file shows that the majority of direct partners requested more than seven Google ads on average. Thus, Google argues that the obligation to display at least three of its ads had had no impact on those direct partners. 827 The Commission disputes Google’s line of argument. 828 In that regard, it should be recalled that, as follows from paragraphs 781 and 782 above, the Commission noted, in recital 500 of the contested decision, that the placement clause had deterred direct partners from sourcing from Google’s competing intermediaries on the ground, inter alia, that that clause prevented those direct partners from being able to adopt certain configurations for their results pages in so far as they by necessity had to display at least three Google ads in a single block when the user visited those websites from a desktop device. 829 According to the Commission, the placement clause deterred in particular direct partners wishing to display only three online search ads or fewer from sourcing from one of Google’s competing intermediaries, since, in that scenario, direct partners could display only Google’s ads. 830 In that regard, it should first be pointed out that the Commission did not identify, in recital 500 of the contested decision, the proportion of direct partners that wished to display only three online search ads or fewer. 831 Second, it must be noted that the circumstance – undisputed by the Commission – that direct partners requesting to display fewer than four online search ads represented less than [confidential]% of AFS’s revenues between 2011 and 2015 is relevant for assessing the foreclosure effect resulting from the requirement to display at least three Google ads. That is all the more the case given that the circumstance – likewise undisputed by the Commission – that the majority of direct partners displayed more than seven Google ads on average suggests that the total number of direct partners wishing to display three online search ads or fewer was low. 832 However, it should be noted that that circumstance concerns only a single aspect of the placement clause, namely the requirement for the direct partner to display at least three Google ads. It thus has no impact on the other aspects of that clause, particularly on the requirement to reserve the most prominent spaces of the results pages of direct partners for Google’s ads and to display them in a block. Consequently, the circumstance noted in paragraph 831 above does not, on its own, mean that, had it not been for that clause, certain direct partners would not have displayed competing ads in spaces generating more revenues and would thus not have sourced a larger part of their requirements from Google’s competing intermediaries. (3) Commercial interest in direct partners in sourcing from Google’s competing intermediaries in the absence of the placement clause 833 Google claims that most direct partners would have sourced from it, including in the absence of the placement clause. In that regard, it criticises, in essence, the Commission for not having taken into account the fact that publishers chose AFS, on the ground that it was a service of superior quality, and that publishers therefore had no commercial interest in sourcing from other intermediaries. 834 The Commission disputes Google’s line of argument. 835 First of all, as has been noted in paragraph 108 above, it is apparent from the case-law that, in order to establish that the placement clause was abusive, the Commission was not required to demonstrate that that conduct had actually produced anticompetitive effects, but only that it had been capable of restricting competition in the circumstances of the case. 836 It should be noted that, after having stated, in recital 499 of the contested decision, that the placement clause had prevented direct partners from evaluating the commercial interest in sourcing from Google’s competing intermediaries, the Commission found, in recital 502 of that decision, that at least some direct partners would in any event have had a commercial interest in sourcing from multiple intermediaries absent the placement clause. 837 In that regard, it follows from paragraph 825 above that the Commission was right to consider, in recital 499 of the contested decision, that the fact that the placement clause had prevented direct partners from evaluating the commercial interest in sourcing from other intermediaries allowed it to conclude that that clause could have deterred those direct partners from sourcing from other intermediaries. 838 It follows from paragraphs 825 and 832 above that the evidence produced by Google is not sufficient to find that, had it not been for the placement clause, certain direct partners would not have sourced a larger part of their requirements from Google’s competing intermediaries. The Commission could rightly consider, in recital 500 of the contested decision, that that clause was capable of preventing direct partners from being able to adopt certain configurations for their results pages, when the user visited those pages from a desktop device. 839 In those conditions, it is appropriate to find that the Commission could merely demonstrate that direct partners would have wished to evaluate the commercial interest in sourcing from other intermediaries without having to prove in addition that, had they been able to carry out that evaluation, they would indeed have chosen to source from such intermediaries had it not been for the placement clause. 840 After all, before deciding whether they wanted to source from such an intermediary, direct partners necessarily had to evaluate whether they had a commercial interest in doing so. It follows that, in so far as the placement clause had prevented them from carrying out such an evaluation, the Commission could consider that that clause was capable of restricting competition by deterring them from sourcing from Google’s competing intermediaries. 841 Last, it should be noted that, as is apparent from recital 504 of the contested decision, the fact that Google had included the placement clause in its GSAs was an indication that, notwithstanding the alleged superior quality of AFS, Google considered that, absent that clause, direct partners would have had a commercial interest in sourcing from other intermediaries. 842 Furthermore, [confidential]’s statement appearing in recital 505 of the contested decision, according to which direct partners ‘if possible would like to avoid working with Google’, tends to corroborate the notion that at least some of them had a commercial interest in sourcing from Google’s competing intermediaries. (4) Conclusion on the deterrent effect of the placement clause vis-à-vis direct partners 843 It is apparent from the foregoing considerations that, subject to the examination of all the other relevant circumstances, particularly of the duration for which the placement clause applied (see paragraph 848 below), the Commission was right to find that that clause, which prevented direct partners from displaying competing ads on the most prominent spaces of their results pages, could have deterred certain of those direct partners from sourcing at least part of their requirements from Google’s competing intermediaries. 844 First, it should be noted that, as has been mentioned in paragraph 825 above, the Commission could rightly take into consideration the examples of replies of direct partners set out in recital 499 of the contested decision as elements capable of corroborating its assessment that the placement clause could have deterred them from sourcing at least part of their requirements from Google’s competing intermediaries. 845 Second, it must be held that, as has been noted in paragraph 832 above, the mere circumstance that the majority of direct partners – including those generating the most revenues – had decided to display more than three Google ads is insufficient to conclude that, had it not been for that clause, direct partners would not have displayed ads from Google’s competing intermediaries in spaces generating more revenues. 846 Third, it is appropriate to note, as the Commission did in recitals 230 and 276 of the contested decision, that Google’s market share had increased between 2006 and 2016 in the majority of the national markets for online search advertising at issue and in the market for online search advertising intermediation. Thus, in 2016, almost none of Google’s competitors on those markets remained. In addition, the said markets were characterised by the existence of significant barriers to entry and expansion and by a lack of countervailing buyer power on the part of advertisers and publishers. In particular, the effects of scale and network effects had rendered the emergence of new competitors difficult. 847 In those conditions, it is appropriate to find that, contrary to what Google claims, the mere fact that the placement clause had had an effect only on the conduct of certain direct partners does not suffice to demonstrate that that clause had not been capable of restricting competition. 848 Consequently, it is necessary to find that the placement clause could have been capable of producing the foreclosure effect found in the contested decision. However, as has been recalled in paragraphs 776 and 777 above, the question of whether that clause actually had such a capability depends also on the examination of all the other relevant circumstances and, in particular, of the duration for which those direct partners were obliged, in view of the said clause, to reserve the most prominent spaces of their results pages for Google ads, as the Commission found, rightly, in recital 496 of the contested decision. (b) Impossibility for Google’s competing intermediaries to access a significant part of the market for online search advertising intermediation 849 In the contested decision, the Commission considered that the placement clause had prevented direct partners from accessing a significant part of the market for online search advertising intermediation. In that regard, first, it noted that the gross revenues generated by GSAs containing that clause represented a significant part of that market. Second, it found that the said clause covered some of the most visited websites in the EEA. Third, it considered that, by requiring direct partners to display at least three ‘wide format’ Google search ads on desktop devices and at least one Google search ad on mobile devices, the clause in question had deprived Google’s competitors of significant revenues derived from the display of such ads. Fourth, it observed that the number of queries carried out on all of the direct partners’ websites constituted a large part of all online search queries carried out in the EEA. Fifth, it took the view that the average duration of GSAs containing the placement clause was long. Sixth, it noted that the fact that that same clause prevented Google’s competitors from accessing a significant part of the said market was consistent with the evolution of Google’s market shares. (1) Application of the placement clause to certain online search ad formats 850 Google claims that the placement clause did not apply to certain online search ad formats, such as PLAs, or to online non-search ads. It infers from this that the Commission was wrong to find that that clause reserved the most prominent spaces on direct partners’ results pages for its own online search ads. 851 In that regard, suffice it to hold that, as follows from paragraphs 568 to 571 above, the fact that the placement clause applied neither to certain online search ad formats, including PLAs, nor to online non-search ads does not call into question the fact that that clause prevented Google’s competitors from accessing a significant part of the market for online search advertising intermediation. It should be noted that Google does not prove, including in the context of the first plea, that PLAs, online search ads and online non-search ads belonged to the same market, such that it does not prove that online search advertising intermediation services, online non-search advertising intermediation services and specialised search result advertising intermediation services belonged to the same market, either. (2) Market coverage by the placement clause 852 In the contested decision, first, the Commission found that, between 2009 and 2015, on the one hand, the gross revenues generated by GSAs containing the placement clause represented between [confidential] and [confidential]% of the market for online search advertising intermediation in the EEA and, on the other hand, those gross revenues and those generated by GSAs containing the exclusivity clause and concluded with all sites direct partners represented, together, between [confidential] and [confidential]% of that market. 853 Second, the Commission noted, referring to the Microsoft study mentioned in paragraph 576 above, that the placement clause covered some of the most visited websites in the EEA. It further specified that the number of online queries carried out on the websites of direct partners constituted a large part of all online search queries made in that area. (i) Market share covered by the placement clause 854 First, Google criticises the Commission for having taken into account, for the purposes of assessing the effects of the placement clause, on the one hand, the revenues generated by GSAs containing the exclusivity clause concluded with all sites direct partners and, on the other hand, the revenues generated by GSAs containing the placement clause in which direct partners had not included all of their websites. In that regard, it asserts that the Commission took into account the revenues generated by GSAs concluded with [confidential] and [confidential], when they had never been subject to the placement clause. Second, it claims that the Commission should have taken into account the fact that a significant portion – at least [confidential]% – of the EEA revenues for online search advertising intermediation services remained ‘open’ to its competitors. Third, it notes that the Commission did not assess the coverage of the placement clause in relation to 2016. 855 The Commission contends (i) that Google had progressively started to replace, from 2009, the exclusivity clause with the placement and prior authorisation clauses, (ii) that the gross revenues generated by GSAs containing the placement clause represented a significant part of the market for online search advertising intermediation, and (iii) that it follows from the contested decision that, on 6 September 2016, Google informed the last direct partner of its decision to waive the placement and prior authorisation clauses. It adds that a certain number of direct partners, including significant direct partners, remained party to a GSA containing the placement clause until 3 June 2016 (see paragraph 634 above). 856 In that regard, it is appropriate to recall, as has been noted in paragraph 599 above, that the Commission considered that the exclusivity clause in GSAs concluded with all sites direct partners, on the one hand, and the placement clause, on the other hand, were capable of restricting the part of the market for online search advertising intermediation to which Google’s competitors were able to have access. Moreover, as has been noted in paragraph 601 above, it is settled that those clauses covered different parts of that market simultaneously. 857 Accordingly, as follows from paragraph 603 above, the Commission cannot be considered to have committed an error of law on the sole ground that it took into account the coverage of the exclusivity clause in GSAs concluded with all sites direct partners in order to determine whether the coverage rate of the placement clause had been sufficient to prevent Google’s competitors from accessing a significant part of the market at issue. 858 It follows that the Commission cannot be criticised for having taken into account GSAs concluded with direct partners, including [confidential] and [confidential], that were not subject to the placement clause, or for having taken into account GSAs containing that clause but in which direct partners had not typically included all of their websites. 859 Furthermore, it has been noted in paragraph 650 above that, even in the scenario most favourable to Google, the combined coverage rate of the exclusivity clause in GSAs in which direct partners had typically included all of their websites, on the one hand, and the placement clause, on the other hand, could be sufficient to be capable of producing a foreclosure effect between 2006 and 2015. 860 In those conditions, it is appropriate to find that the circumstance, cited by Google, that a significant part of the online search advertising intermediation market was not covered by the placement clause is not such as to rule out that that clause was capable of producing a foreclosure effect. 861 However, it is necessary to recall, as has been mentioned in paragraph 641 above, that the Commission has not established that the exclusivity and placement clauses could have prevented Google’s competing intermediaries from accessing a significant part of the market for online search advertising intermediation in the EEA in 2016. (ii) Traffic and number of online queries of the websites covered by the placement clause 862 Google considers, in essence, that, for the reasons set out in paragraph 642 above, the Microsoft study did not enable a causal link to be established between, on the one hand, the fact that the placement clause covered some of the most visited websites in the EEA and, on the other hand, the fact that that clause had prevented its competitors from accessing a significant part of the online search advertising intermediation market. 863 In addition, Google argues that, contrary to what is indicated in the contested decision, the Commission did not demonstrate that the number of online queries made on the websites of direct partners constituted a large part of all online queries made in the EEA. According to Google, Table 27 of that decision is liable to overstate the share of online queries made on the websites of the top 20 direct partners, takes into account websites which were not subject to the placement clause and concerns only the year 2015 and five EEA Member States. 864 The Commission disputes Google’s line of argument. 865 First, in recital 515 of the contested decision, the Commission found, referring to the Microsoft study mentioned in recital 390 of that decision, that ‘some’ of the most visited websites in the EEA were covered by the placement clause. 866 In that regard, it should be noted that, as follows from paragraph 628 above, the Commission determined, in the contested decision, the exact coverage rate of the placement clause on the basis of the gross revenues generated by GSAs containing that clause. 867 As has been noted in paragraph 646 above, the Microsoft study, mentioned in recital 390 of the contested decision, establishes that Google provided online search advertising intermediation services to between [confidential] and [confidential]% of the most visited web domains in Germany, Spain, France, Italy and the United Kingdom in 2010. It is true that, as Google notes, that study concerns only one year of the period of infringement and five Member States. Likewise, Google is justified in noting that that study does not enable the traffic generated specifically by the websites covered by the placement clause to be identified. Last, it rightly observes that the number of website visits is not necessarily a reliable indication of online search advertising revenues. 868 However, on the one hand, the fact remains that the Microsoft study constitutes an additional indication enabling an assessment of the scale of the online search advertising intermediation services provided by Google and the coverage of the market for online search advertising intermediation by that clause, in so far as, first of all, it involves five of the largest Member States of the EEA, next, it is not disputed that at least some of the websites covered by that study were subject to the placement clause and, last, there is some correlation between the number of website visits and the revenues from online search advertising. 869 On the other hand and in any event, the Commission did not base its calculation of the coverage rate of the placement clause on the Microsoft study, such that, even assuming that Google’s arguments in that regard were founded, that would have no effect on the calculation of that rate performed by the Commission. 870 Second, it is appropriate to note that, in Table 27 of the contested decision, the Commission excluded the online queries made on the search engines of Google, Microsoft, Yahoo!, Yandex and Baidu as well as the online queries made on sites belonging to Microsoft and to Yahoo! from the total number of online queries made in the EEA. Thus, contrary to what Google suggests, the Commission could not exclude those same online queries from the total number of online queries made on the websites of the top 20 direct partners, since it is undisputed that no GSA applied to the websites on which those online queries were made. 871 However, it should be noted that Google argues, rightly, that Table 27 of the contested decision concerned only one year of the period of infringement between 31 March 2009 and 6 September 2016 and that it concerned only 5 of the 31 Member States of the EEA during that period. Moreover, it should be borne in mind that the Commission acknowledges that 3 of the 20 direct partners that it identified were not subject to the placement clause. On the one hand, however, it did not specify the proportion of online queries generated by the websites of those three direct partners. On the other hand, while it argues that two of those three direct partners were subject to the exclusivity clause, it is worth noting that that circumstance does not figure among the grounds of the contested decision and that, in any event, the Commission does not claim that those two direct partners figured among the all sites direct partners identified in recital 348 of that decision. 872 Accordingly, it is appropriate to find that the circumstance, mentioned in recital 518 of the contested decision, according to which the number of online queries made on the websites of direct partners constituted a large part of all online queries made in 2015 in Germany, Spain, France, Italy and the United Kingdom does not suffice to demonstrate that the number of online queries made on websites specifically subject to the placement clause constituted a large part of all online queries made between 31 March 2009 and 6 September 2016 in the EEA. 873 Nevertheless, it should be noted that the question of whether the websites covered specifically by the placement clause had generated a high number of online queries serves as merely one indicator enabling assessment of the extent of the coverage of the market for online search advertising intermediation as a whole by that clause. 874 As has been recalled in paragraph 866 above, the Commission moreover determined the coverage rate of the placement clause on the basis of the gross revenues generated by GSAs containing that clause. Furthermore, it has been noted in paragraphs 650 and 859 above that that coverage rate, combined with that of the exclusivity clause in GSAs in which direct partners had typically included all of their websites, could be sufficient for those clauses to be capable, together, of producing a foreclosure effect. 875 Accordingly, it is appropriate to find that the Commission could rely on the Microsoft study and on the data recorded in Table 27 of the contested decision as indications corroborating the assessment of the coverage rate of the placement clause, without it being necessary to rule on the admissibility of Google’s line of argument, disputed by the Commission. (3) As-efficient competitor test 876 In the contested decision, the Commission found that the placement clause was capable of foreclosing a hypothetical competing intermediary as efficient as Google. First, the revenues generated between 2009 and 2015 by GSAs containing that clause represented between [confidential] and [confidential]% of the market for online search advertising intermediation in the EEA. Second, the revenues generated by that clause and the exclusivity clause in GSAs concluded with all sites direct partners between 2009 and 2015 represented [confidential] to [confidential]% of that market. Third, Google held a ‘very large’ share of the market between 2006 and 2016. Fourth, that market was prone to network effects. 877 The Commission moreover indicated that it was ‘doubtful’ whether a hypothetical intermediary as efficient as Google could have emerged during the period of application of the placement clause. It last found that the question of whether Google had pursued a strategy aimed at excluding competitors as efficient as it was irrelevant. 878 Google argues that the Commission failed to prove that a competitor as efficient as it could not have emerged on the market for online search advertising intermediation owing to the placement clause. Vinden states in that regard that that clause did not prevent it from sourcing from Yahoo!. Last, Google criticises the Commission for having considered that the absence of a strategy aimed at excluding competitors as efficient as it was irrelevant in this case. 879 The Commission disputes Google and Vinden’s line of argument. 880 In that regard, it should be noted that, as has been mentioned in paragraphs 656 and 657 above, the fact that the Commission indicated that it was ‘doubtful’ whether a hypothetical intermediary as efficient as Google could have emerged during the period of application of the placement clause is not such as to call into question the legality of the contested decision. 881 Moreover, as has been noted in paragraph 665 above, the Commission could merely demonstrate the capability of the exclusivity clause in GSAs concluded with all sites direct partners to produce a foreclosure effect by relying on several relevant elements, without necessarily relying, to that end, on the as-efficient competitor test. Furthermore, as has been noted in paragraph 671 above, it is settled that Google did not provide during the administrative procedure – or before the Court – any analysis based on that test. 882 In the case at hand, the very substance of the placement clause, which prevented, in principle, direct partners from displaying competing ads in the most prominent spaces of their results pages, and the factors mentioned in recital 549 of the contested decision, namely, on the one hand, the fact that that clause, together with the exclusivity clause in GSAs in which direct partners had typically included all of their websites, covered a significant part of the online search advertising intermediation market, as has been essentially noted in paragraphs 650 and 859 above, and, on the other hand, the extent of Google’s dominant position resulting in particular from its very high market shares and from the barriers to entry and expansion in the form inter alia of network effects, could demonstrate that the placement clause could be capable of foreclosing a hypothetical competitor as efficient as Google. It follows that those factors could also demonstrate that it was ‘doubtful’ that such a competitor could have emerged during the period of application of the said clause. 883 Last, as follows from paragraphs 678 to 681 above, the Commission cannot be criticised, on the one hand, for not having established that Google had adopted a strategy aimed at excluding competitors at least as efficient as it and, on the other hand, for not having taken into account the fact that it did not intend to exclude such competitors. (4) Duration of GSAs and the unilateral termination right of some direct partners 884 In the contested decision, the Commission considered that the average duration of GSAs containing the placement clause was long. It stated, in that regard, that Google and direct partners had extended certain GSAs, sometimes several times, without substantial modifications. In addition, it noted that the period during which the direct partners were required to source a minimum number of Google ads and at the same time reserve the most prominent spaces for Google ads was also long. Last, it found that only one direct partner held a unilateral termination right. 885 Google criticises the Commission for having confused the length of the commercial relationship with the direct partners subject to the placement clause with the duration of the GSAs containing that clause. It thus notes that the GSAs mentioned in footnotes 707 and 713 to the contested decision had a duration of two years or less between each renewal or each extension. In addition, it states that the Commission failed to take into account the fact that some direct partners held a unilateral termination right. 886 Vinden maintains that the GSAs concluded with Google were short, being renewed every two years on average. Additionally, it notes that the order form for 2011, which it had completed, allowed for a unilateral termination right if notice was given 60 days prior to the one-year anniversary of the contract. Thus, it claims that it had had frequent opportunities to decide to source from one of Google’s competing intermediaries. 887 First, the Commission contends that the GSAs of 11 of the 15 direct partners mentioned in footnotes 707, 713, 766 and 767 to the contested decision, including those concluded with Vinden, were always extended before they ‘came up for renewal’. Google’s competitors therefore were ‘never able to contest that demand’. Moreover, the Commission notes that most of the GSAs concluded by one of the remaining four direct partners were extended before that point, such that the said competitors of Google were ‘mostly not able to contest that demand’. 888 Second, first of all, the Commission considers that the fact that some direct partners held a unilateral termination right was irrelevant given that the existence of that right did not prevent the application of the placement clause until those direct partners exercised that right, where applicable. Next, it states that the unilateral termination rights at issue could not be exercised at any moment. Last, it notes that the argument alleging that the six direct partners identified by Google in the reply had such a right is belated and, therefore, inadmissible. 889 First of all, regarding the inadmissibility argument raised by the Commission, it is appropriate to note that Google criticises, in paragraph 131 of the application, the contested decision for not having taken into account the fact that some direct partners had a unilateral termination right. It refers, in that regard, to Tables 1 and 2 of Annex A.55 to the application, which identify the direct partners, the GSAs of which are mentioned in footnotes 707, 713, 766 and 767 to the contested decision, enjoying such a right. In those conditions, having regard to the case-law recalled in paragraph 691 above, it should be noted that Google’s argument, raised in the reply and alleging that other direct partners also enjoyed that right, presents a sufficiently close connection with the argument developed in the application in order to be considered as forming part of the normal evolution of debate in proceedings before the Court. 890 As for the merits of Google’s line of argument, it is appropriate to note that, as has been indicated in paragraph 778 above, the Commission was right to find that the placement clause was akin to a relaxed exclusivity clause so far as concerns websites that were included in GSAs containing that clause since it reserved the most prominent spaces of direct partners’ results pages for Google ads. 891 In those conditions, it must be held that, as follows from paragraphs 695 and 696 above, the duration of the obligation by which direct partners had to reserve the most prominent spaces of their results pages counts among the circumstances relevant for assessing the foreclosure effect of that clause. 892 In that regard, first, it should be noted that, in order to consider that the average duration of GSAs containing the placement clause was long, the Commission relied only, in recital 519 of the contested decision, on the fact that many GSAs had been extended, sometimes several times, without substantial modifications. 893 On the one hand, it is apparent from Annex A.55 to the application, the content of which is not disputed by the Commission, and from recitals 519 and 525 of the contested decision, and more specifically in footnotes 707 and 713 to that decision, the content of that latter footnote being restated in footnotes 766 and 767 to the said decision mentioned in the Commission’s written submissions, that that institution took into account the total duration of those GSAs, by including all of their extensions, where applicable. However, it took into account neither the initial duration of each of the said GSAs, taken individually, nor the duration of each of their extensions, where applicable, which paragraph 241 of the defence essentially confirms. 894 On the other hand, it is apparent from footnote 707 to the contested decision and from Annex A.55 to the application that, contrary to what recital 519 of that decision suggests, the Commission did not only take into account the total duration of each GSA, including extensions, but also the cumulative duration of the different GSAs concluded by the same direct partner. 895 Thus, it is apparent from the contested decision and from Annex A.55 to the application that the Commission took into account neither the duration of each of the GSAs, taken individually, nor the duration of each of the possible extensions of those GSAs. 896 Second, to justify the lack of taking into account of unilateral termination rights for the purposes of its assessment, the Commission found, in recital 526 of the contested decision, that Google had identified, during the administrative procedure, only one direct partner which enjoyed such a right. It thus considered it an exception, asserting that no other direct partner had such a right. 897 However, it is apparent from Annexes A.55 to the application and C.8 to the reply that at least nine other direct partners, namely Vinden, [confidential], [confidential], [confidential], [confidential], [confidential], [confidential], [confidential] and [confidential], held a unilateral termination right, which the Commission does not dispute. Moreover, it is apparent from footnotes 707, 713, 766 and 767 to the contested decision that the Commission relied on the duration of GSAs concluded with at most 15 direct partners. Accordingly, the fact that at least 10 direct partners enjoyed a unilateral termination right cannot be regarded as an exception justifying that it should not be taken into account for the purposes of the assessment of the foreclosure effect of the placement clause. 898 In those conditions, the Commission could not, solely on the basis of the considerations recalled in paragraphs 892 and 896 above and without having examined the actual conditions and the terms under which the extensions of the GSAs had been agreed, as well as the substance of the clauses providing for the unilateral termination rights held by some of the direct partners and the conditions in which those rights could be exercised, exclude that those direct partners had the option of sourcing from Google’s competing intermediaries in respect of the most prominent spaces of their results pages, including before any extension of their GSAs, or before a unilateral termination right had been exercised. It follows that the Commission also could not find that those intermediaries had not had the possibility of disputing the part of the market for online search advertising intermediation covered by GSAs containing the placement clause for the total duration of those GSAs, let alone for their cumulative duration. 899 That conclusion is not called into question by the Commission’s arguments. 900 In the first place, the Commission contends that certain GSAs were extended before they reached their term. However, it should be recalled that, as has been mentioned in paragraph 707 above, the Commission relies on the unsubstantiated premiss according to which the other intermediaries could not compete with Google when those GSAs were being renewed. In particular, it is appropriate to point out that the Commission puts forward no evidence proving that the negotiations on the extension of a GSA could not be done at the end of a competitive process by which the direct partner concerned compared the services provided by Google and by its competitors. 901 In the second place, it should be noted that the Commission is not justified in arguing, in the defence, that it was irrelevant whether direct partners had unilateral termination rights, on the ground that the placement clause continued to apply until that right was exercised. As has been noted in paragraph 714 above, the Commission had to examine the substance of the clauses providing for those rights, the conditions in which they could be exercised as well as which direct partners could enjoy them in order to determine whether the said rights were capable of calling into question, at least to a certain extent, the fact, found in the contested decision, that the placement clause had prevented Google’s competitors from accessing a significant part of the market for online search advertising intermediation for the duration of GSAs containing that clause. (5) Conclusion on the impossibility for Google’s competing intermediaries to access a significant part of the market for online search advertising intermediation 902 As has been found in paragraph 859 above, the Commission was right to consider that, having regard to the coverage of the exclusivity clause in GSAs concluded by all sites direct partners, in the light of the circumstances recalled in paragraph 602 above, the coverage of the placement clause could be sufficient to enable that clause to be capable of producing a foreclosure effect between 31 March 2009 and 31 December 2015. In addition, it has been noted in paragraph 882 above that Google was not justified in arguing that the Commission had failed to prove that a competitor as efficient as it could not emerge on the market for online search advertising intermediation or that such a competitor was capable of being excluded from that market. 903 However, on the one hand, as follows from paragraph 861 above, the Commission did not establish that the placement clause could have produced a foreclosure effect, owing to its coverage, between 1 January and 6 September 2016. On the other hand, as follows from paragraph 898 above, it failed to take into consideration all the relevant circumstances of the case in the context of the assessment of the duration for which direct partners were obliged, by virtue of that clause, to reserve the most prominent spaces of their results pages for Google ads. 904 It follows that, contrary to what the case-law recalled in paragraph 107 above requires, the Commission has not demonstrated to the requisite legal standard, in the light of all the circumstances of the case, that the placement clause was capable of preventing Google’s competing intermediaries from accessing a significant part of the market for online search advertising intermediation in the EEA, for the duration for which that clause applied. (c) Conclusion on the second part of the third plea 905 As has been recalled in paragraph 769 above, in recital 494 of the contested decision, the Commission considered that the placement clause was capable of restricting competition, in the light of all the relevant circumstances of the case. It noted in that regard that that clause had (i) deterred direct partners from sourcing from Google’s competing intermediaries, (ii) prevented those intermediaries from accessing a significant part of the market for online search advertising intermediation, (iii) possibly deterred innovation, (iv) helped Google to maintain and strengthen its dominant position on the national markets for online search advertising in the EEA, with the exception of Portugal, and (v) possibly harmed consumers. 906 As has been recalled in paragraphs 770 and 771 above, the Commission essentially considered that the placement clause was capable of producing a foreclosure effect, finding that it had, on the one hand, deterred direct partners from sourcing from Google’s competing intermediaries and had, on the other hand, prevented those intermediaries from accessing a significant part of the market for online search advertising intermediation. In addition, it inferred from that foreclosure effect that that clause had, first, possibly deterred innovation, next, helped Google to maintain and strengthen its dominant position on the national markets for online search advertising at issue and, last, possibly harmed consumers. 907 As has been recalled in paragraph 776 above, in recital 496 of the contested decision, before examining the effects of each of the five restrictions of competition that it identified (see paragraph 905 above), the Commission specified that, for the purposes of its analysis seeking to demonstrate that the placement clause was capable of restricting competition, it had taken into account the ‘duration of [that c]lause’, thus highlighting, essentially, the importance of the developments set out in recitals 519, 525 and 526 appearing in Section 8.4.4.2 of that decision, relating to the impossibility for Google’s competing intermediaries to access a significant part of the market for online search advertising intermediation. It also indicated that it had taken into consideration the coverage rate of the said clause, which it examined in the same section of the said decision. It is also apparent from the systemic place of the said recital 496 in the structure of the contested decision that the Commission took into account that duration and that coverage rate when it examined the effects of the placement clause in the context of each of the five restrictions identified in the contested decision. 908 As has been found in paragraph 903 above, however, the Commission failed to take into consideration all the relevant circumstances of the case in the context of the assessment of the duration for which direct partners had been obliged to reserve the most prominent spaces of their results pages for Google ads by virtue of the placement clause. 909 Moreover, as has also been found in paragraph 903 above, the Commission did not establish that the placement clause could have produced a foreclosure effect, owing to its coverage, between 1 January and 6 September 2016. 910 It follows that the errors committed by the Commission, recalled in paragraphs 908 and 909 above, vitiate all of the restrictions identified by it in the contested decision, such that it is appropriate to conclude that the Commission has not demonstrated, to the requisite legal standard, that the placement clause had been capable of deterring direct partners from sourcing from Google’s competing intermediaries or that it had been capable of preventing those intermediaries from accessing a significant part of the market for online search advertising intermediation in the EEA and, consequently, that that clause had been capable of having the foreclosure effect found in that decision. 911 In those conditions, it is appropriate to find that the Commission has also not demonstrated, to the requisite legal standard, that the placement clause had, first, possibly deterred innovation, next, helped Google to maintain and strengthen its dominant position on the national markets for online search advertising at issue and, last, possibly harmed consumers. 912 Moreover, it must be stated that, in recitals 541 and 542 of the contested decision, the Commission essentially found that the binding nature of the mock-ups had exacerbated the foreclosure effect of the placement clause by further limiting the possibility for direct partners to modify the positioning of both Google ads and competing ads. However, the Commission has neither established that the placement clause was capable of having such an effect nor alleged that the mock-ups alone were capable of having that effect. Accordingly, the mock-ups cannot suffice, on their own, to demonstrate that the placement clause constituted an infringement of Article 102 TFEU. 913 It follows that the second part of the third plea must be upheld, without it being necessary to rule on the other arguments of Google under that plea, and, consequently, the contested decision must be annulled to the extent that it found that the placement clause constituted an infringement of Article 102 TFEU. E. Fourth plea: the prior authorisation clause did not constitute an abuse of a dominant position 914 By the fourth plea, Google criticises the Commission for having considered that the prior authorisation clause constituted an abuse of a dominant position within the meaning of Article 102 TFEU. This plea consists of two parts, the first alleging that there was no restriction of competition, and the second alleging that the said clause was objectively justified. 915 As a preliminary point, it must be recalled that, in the March 2009 template GSA, the prior authorisation clause was worded as follows: ‘Unless approved in writing in advance by Google, Company will not make any changes in relation to: … the display of Equivalent Ads, AFS Ad Sets or AFS Ads on a Results Page, including changes to their number, colour, font, size or placement or the extent to which they are clickable.’ 916 The prior authorisation clause was supplemented by clause 6.2(b) of the March 2009 template GSA which was worded as follows: ‘Where Company requests approval pursuant to [the prior authorisation clause] above, Google may only withhold its approval on grounds that the proposed change would be in breach of the applicable Agreement or the Google Branding Guidelines and Google may not withhold its approval on purely commercial grounds. If Google does not respond to any such request for approval within 15 business days of receipt from Company, such approval shall be deemed given by Google.’ 917 As has been recalled in paragraph 730 above, clause 1.1 of the March 2009 template GSA stipulated that the expression ‘Equivalent Ad’ had to be understood as referring to ‘any advertisements that are the same as or substantially similar in nature to the AFS Ads provided by Google under any Agreement’. 918 The wording of the prior authorisation clause was modified in the template GSA over time. That clause was also worded in the following manner: ‘If Company wishes to make changes in relation to the display of: Equivalent Ads on a Results Page, including changes to their number, colour, font, size or placement or the extent to which they are clickable, Company will not make any changes unless approved in writing in advance by Google. Google may not withhold its approval unless such proposed change would be in breach of the applicable Agreement. If Google does not respond to any request for approval set out in this clause … within 15 business days of receipt from Company, such approval shall be deemed given by Google.’ 919 In the contested decision, the Commission considered, in recital 573 thereof, that the prior authorisation clause was capable of restricting competition, in the light of all the circumstances of the case. In that regard, it noted that that clause had (i) deterred direct partners from sourcing from Google’s competing intermediaries, (ii) prevented those intermediaries from accessing a significant part of the market for online search advertising intermediation, (iii) possibly deterred innovation, (iv) helped Google to maintain and strengthen its dominant position on the national markets for online search advertising in the EEA, with the exception of Portugal, and (v) possibly harmed consumers. 920 More specifically, it should be noted that, in finding that the prior authorisation clause had, on the one hand, deterred direct partners from sourcing from Google’s competing intermediaries and, on the other hand, prevented those intermediaries from accessing a significant part of the market for online search advertising intermediation, the Commission essentially considered that that clause was capable of producing a foreclosure effect. 921 In addition, it should be noted that the Commission inferred from the foreclosure effect of the prior authorisation clause that that clause had, first, possibly deterred innovation, next, helped Google to maintain and strengthen its dominant position on the national markets for online search advertising at issue and, last, possibly harmed consumers. 922 First, it follows from recitals 598 to 600 of the contested decision that the foreclosure effect of the prior authorisation clause had deterred Google’s competing intermediaries from providing or developing different online search ads, with the result that that clause had deterred them from investing in innovation. Next, it follows from recital 602 of that decision that that effect had deprived the said intermediaries of revenues and data that they could have used to provide online search ads. Last, it follows from recital 605 of the same decision that the said effect had allowed Google to set the prices paid by advertisers at a high level, thereby increasing the prices consumers paid for the goods featured in the online search ads. The Commission added, in recital 606 of the contested decision, that the fact that the prior authorisation clause had possibly deterred innovation had also deprived consumers of a wider choice of online search ads. 923 In the context of the first part of the fourth plea, Google submits that the prior authorisation clause, first, did not produce the foreclosure effects found in the contested decision; second, had not helped it to maintain or strengthen its dominant position on the national markets for online search advertising at issue; and, third, had neither deterred innovation nor harmed consumers. 924 Surfboard and Vinden claim that the prior authorisation clause had no effect on their conduct and that it was objectively justified. 925 It is appropriate at the outset to examine the foreclosure effect identified in the contested decision resulting from the prior authorisation clause. It must therefore be ascertained whether that clause was capable, on the one hand, of deterring direct partners from sourcing from Google’s competing intermediaries and, on the other hand, of preventing those intermediaries from accessing a significant part of the market for online search advertising intermediation. 926 In that regard, it should be noted that, in recital 574 of the contested decision, the Commission specified that, for the purposes of its analysis seeking to demonstrate that the prior authorisation clause was capable of restricting competition, it had taken into account all the relevant circumstances, including, on the one hand, the extent of Google’s dominant position, both on the national markets for online search advertising at issue and on the market for online search advertising intermediation, and, on the other hand, the share of the latter market covered by the said clause and the ‘duration of [that c]lause’. It referred, in that regard, respectively, to Section 7 of that decision, relating to Google’s dominant position, which includes the considerations recalled in paragraphs 401 to 404 above, and to the whole of Section 8.5.4.2 of the said decision, relating to the impossibility for Google’s competing intermediaries to access a significant part of the said market. 927 In line with what has been found in paragraphs 400 and 405 above, it should be found, on the one hand, that the approach followed by the Commission is in conformity with the case-law and, on the other hand, that Google does not challenge the content of Section 7 of the contested decision other than by arguing, under the first plea, that the Commission erroneously defined the relevant markets in Section 6 of that decision. 928 Taking into account those factors, it is appropriate to examine, first, whether the prior authorisation clause was capable of deterring them from sourcing from Google’s competing intermediaries and, next, whether the said clause was capable of preventing those intermediaries from accessing a significant part of the market for online search advertising intermediation. 1. Deterrent effect of the prior authorisation clause vis-à-vis direct partners 929 In the contested decision, the Commission found that the prior authorisation clause had deterred direct partners from sourcing from Google’s competing intermediaries. 930 Specifically, the Commission found (i) in recital 577 of the contested decision, that the prior authorisation clause had prevented direct partners from evaluating the commercial interest in sourcing from Google’s competing intermediaries, by imposing a ‘triangular’ negotiation in order to make changes to the display of competing ads, (ii) in recital 578 of that decision, that the scope of that clause and Google’s refusal to discuss or clarify it had deterred direct partners from sourcing from those intermediaries, and (iii) in recital 579 of the said decision, that, absent that same clause, direct partners would have sourced from the said intermediaries more freely. 931 Google disputes the content of each of recitals 577, 578 and 579 of the contested decision. 932 In the first place, Google criticises the Commission for having found, in recital 577 of the contested decision, that the prior authorisation clause had prevented direct partners from evaluating the commercial interest in sourcing from other intermediaries. 933 More specifically, first, Google claims that the prior authorisation clause, on the one hand, applied only to the websites that direct partners chose to include in their GSAs and, on the other hand, allowed the display of competing ads. Moreover, the Commission identified no instance of Google refusing the display of such ads. Second, it notes that the said clause applied neither to the initial display of competing ads nor to the compliance of that display with its various ad policies (and seeking to prohibit the display of offensive, unsafe, undesirable or deceptive ads), such that that same clause could not have deterred direct partners from displaying competing ads. Third, it states that, while the clause in question had been intended to prevent the changes proposed by direct partners from breaching the aforementioned policies, the Commission did not consider those same policies to be capable of restricting competition. Fourth, it criticises the Commission for not having taken into account, on the one hand, the fact that, by virtue of clause 6.2(b) of the March 2009 template GSA, it could not reject a request for a change relating to the display of ads on purely commercial grounds and, on the other hand, evidence showing that it had accepted requests from direct partners to change that display. In that regard, it notes moreover that the Commission cited no instance of it refusing to change the display of competing ads by virtue of that clause. Fifth, it claims that the Commission also ignored evidence showing that direct partners could evaluate competing ads shown on websites subject to the prior authorisation clause. 934 In the second place, Google criticises the Commission for not having taken into account, in recital 578 of the contested decision, evidence demonstrating that direct partners could negotiate the removal of the prior authorisation clause from their GSAs. In addition, it states that no direct partner statement, quoted by the Commission in that recital, can establish that it refused to discuss or clarify the scope of that clause. 935 In the third place, Google criticises the Commission for having relied, in recital 579 of the contested decision, on statements from direct partners which could not confirm that they would have sourced from other intermediaries more freely had it not been for the prior authorisation clause. 936 Surfboard maintains that the prior authorisation clause promoted a positive user, advertiser and direct partner experience, while preventing the display of offensive and deceptive ads. It also notes that Google could not refuse a change request on purely commercial grounds. Moreover, it submits that that clause did not prevent it from making the changes that it wanted on its websites, as it had explained to the Commission during the administrative procedure. Vinden adds that the said clause had not required it to seek Google’s permission in order to change the layout of competing ads. 937 The Commission disputes Google, Surfboard and Vinden’s line of argument. 938 As a preliminary point, it should be borne in mind that the prior authorisation clause, associated with clause 6.2(b) of the March 2009 template GSA, provided that direct partners had to obtain prior written approval from Google or, where it did not respond to their request for approval, await the expiry of a period of 15 business days, before changing the display of competing ads, including in terms of number, colour, font, size, placement and the extent to which they were clickable. 939 Thus, the prior authorisation clause enabled Google, on the one hand, to be informed of any intention to change how competing ads were displayed and, on the other hand, to monitor continuously direct partners’ commercial relations with competing intermediaries and interfere with them, by having the option, where appropriate, not to authorise, under the conditions prescribed by clause 6.2(b) of the March 2009 template GSA, changes to the display of those ads which were not to its liking. 940 The Commission was therefore right to note, in recital 577 of the contested decision, that, by requiring direct partners to seek prior approval from Google before making any change to the display of competing ads, the prior authorisation clause imposed a more burdensome triangular negotiation between those direct partners, Google and its competing intermediaries. 941 Similarly, it should be noted that the Commission considered, rightly, in recital 579 of the contested decision, that, absent the prior authorisation clause, direct partners could have sourced from other intermediaries more freely, notwithstanding Google’s line of argument seeking to call into question the relevance of the statements of direct partners quoted, by way of example, in that recital. 942 Furthermore, it is appropriate to note that the reply of [confidential], quoted in recital 578 of the contested decision, is such as to confirm the fact that Google had refused to negotiate the scope of the prior authorisation clause. It is apparent from that recital – and undisputed by Google – that [confidential] had proposed amending its GSA to specify, first, that Google would act ‘reasonably’ and, second, that it could refuse a request made under that clause only by reference to the ‘Google brand guidelines’ and ‘other Google policies’. It follows that [confidential] attempted to amend the clause in question in order to limit the circumstances in which Google could refuse changes to the display of competing ads. Google did not accede to that request, however. 943 What is more, as is apparent from footnote 422 to and from recital 630 of the contested decision and as Google confirms in its written submissions, all GSAs that included the prior authorisation clause also contained the placement clause. It has been noted in paragraph 843 above, however, that the placement clause was capable of deterring certain direct partners from sourcing at least part of their requirements from Google’s competing intermediaries. In those conditions, the prior authorisation clause should be regarded as having been able to exacerbate the deterrent effect of the placement clause by making it more difficult to change the display of competing ads already restricted by that clause. 944 Accordingly, it is appropriate to find that, in the light of the foregoing and of the extent of Google’s dominant position on the market for online search advertising intermediation, and particularly of the existence of significant barriers to entry and expansion on that market, the Commission has demonstrated to the requisite legal standard that the prior authorisation clause, in so far as it obliged direct partners to obtain prior written approval from Google before changing the display of competing ads, which forced them to engage in triangular negotiations with interference by Google and prevented them from sourcing from its competitors more freely, was able to deter certain direct partners from sourcing at least part of their requirements from Google’s competing intermediaries. 945 Google’s other arguments are incapable of calling that assessment into question. 946 First, it should be noted, like the Commission, that, as follows inter alia from paragraph 787 above, the fact that the prior authorisation clause applied only to websites included in GSAs containing that clause and not to all of the websites of direct partners is irrelevant to determining whether the said clause had prevented those partners from evaluating the commercial interest in sourcing from Google’s competing intermediaries, at least as regards websites included in those GSAs. 947 Second, it should be noted that the circumstance, cited by Google, that the prior authorisation clause was, in essence, objectively justified, on the ground that it sought to prohibit the display of offensive, unsafe, undesirable or deceptive ads, related not to the existence of anticompetitive effects as such. It is only in the event that it is found, after having assessed all the relevant circumstances, that that clause produced such effects that it will be appropriate to ascertain whether Google has justified the use of the said clause (see, to that effect, judgment of 27 March 2012, Post Danmark, C‑209/10, EU:C:2012:172, paragraph 40). 948 Third, it should be noted that Google is not justified in arguing that clause 6.2(b) of the March 2009 template GSA was liable to call into question the deterrent effect of the prior authorisation clause. 949 It is true that clause 6.2(b) of the March 2009 template GSA provided a framework for the possibility for Google to refuse a change request relating to the display of competing ads submitted by a direct partner. It also stipulated that such a request was deemed to have been approved if Google did not respond to it within a period of 15 business days. However, its mere presence in GSAs does not call into question the fact that the prior authorisation clause required direct partners to request prior approval from Google in order to change the display of competing ads and that it thus made it more difficult in practice for those direct partners to source from other intermediaries. Such was the case, irrespective of the question of knowing under what circumstances Google could refuse requests to change the display of competing ads and of the possibility for it to delay the implementation of such changes having regard to the period of 15 business days prescribed for responding to such requests. Moreover, it is true, as Google claims, that the prior authorisation clause and clause 6.2(b) of the March 2009 template GSA did not relate to the initial display of competing ads. However, it is appropriate to state that that clause made it more difficult to change the display of competing ads, once those ads had been displayed on a results page of a direct partner’s website. 950 Fourth, there are certainly grounds for noting, as Google does, that the Commission did not identify any cases in which Google denied, on the basis of the prior authorisation clause, a change request submitted by a direct partner. Likewise, Google is right to maintain that the Commission’s file contained evidence that it had in fact acceded to such requests. However, the Commission did not contend, in the contested decision, that the restriction of competition that it had found stemmed from Google’s refusal to authorise such requests. On the contrary, it considered, rightly, that the mere act of placing direct partners under the obligation to obtain prior written approval from Google or, failing that, to wait 15 business days before being able to change the said display resulted in their being forced to participate in a more burdensome triangular negotiation to that end and prevented them from sourcing from Google’s competitors more freely. 951 Fifth, Google cites inter alia the replies to a request for information of 30 October 2015 of three direct partners, namely [confidential], [confidential] and [confidential], which informed the Commission that they had been able to assess the performance of the competing ads displayed on websites of theirs that were subject to the prior authorisation clause. However, on the one hand, it should be noted that, in its written submissions, Google does not specify whether [confidential], [confidential] and [confidential] had to obtain its approval before making such assessments. Furthermore, it is apparent from those written submissions that the scope of those assessments was limited, [confidential] having stated that it had carried out ‘only … one small test’ with another provider and [confidential] having specified that, after ‘step-by-step negotiation over years’, it had been allowed ‘to use a percentage of [its] users in so called “test buckets” to have a certain amount of traffic on the alternative to be tested’. 952 On the other hand, it is not disputed that, by virtue of that clause, direct partners had to obtain Google’s approval before changing the display of competing ads. It follows that, even assuming that those three direct partners had been able to assess the performance of competing ads, that does not permit the conclusion that the said clause had not had a deterrent effect on direct partners. 953 Sixth, while Google is right to note that certain direct partners had been able to negotiate the scope – or even the removal – of the prior authorisation clause, it follows from paragraph 942 above that other direct partners had not had that possibility. In addition, the fact that certain direct partners were not subject to that clause does not, in any event, rule out that that same clause had been able to deter the direct partners that were subject to it from sourcing a larger part of their requirements from Google’s competing intermediaries. In those conditions, it is necessary to find that the said clause could have been capable of producing the foreclosure effect found in the contested decision. However, as has been recalled in paragraphs 926 and 927 above, the question of whether that clause actually had such a capability depends also on the examination of all the other relevant circumstances and, in particular, of the duration for which those direct partners were obliged, in view of the said clause, to request authorisation from Google to change the display of competing ads, as the Commission found, rightly, in recital 574 of the contested decision. 2. Impossibility for Google’s competing intermediaries to access a significant part of the market for online search advertising intermediation 954 In the contested decision, the Commission considered that the prior authorisation clause had prevented direct partners from accessing a significant part of the market for online search advertising intermediation. In that regard, first, it noted that that clause afforded Google the right to control changes to the display of online search ads that had an impact on CTR, namely changes to those ads’ number, colour, font, size or placement, as well as changes to ‘the extent to which [search ads] were clickable’. Second, it found that Google had gradually included the said clause in the overwhelming majority of GSAs. Third, it considered that the gross revenues generated by GSAs containing that clause represented a significant part of that market. Fourth, it noted that the said clause covered some of the most visited websites in the EEA. Fifth, it observed that the number of queries carried out on direct partners’ websites constituted a large part of all online search queries carried out in the EEA. Sixth, it took the view that the average duration of GSAs containing the clause in question was long. Seventh, it indicated that the fact that that same clause prevented Google’s competitors from accessing a significant part of the said market was consistent with the evolution of Google’s market shares. (a) Market coverage by the prior authorisation clause 955 In the contested decision, first, the Commission considered that, between 2011 and 2015, the gross revenues generated by GSAs containing the prior authorisation clause represented, on the one hand, between [confidential] and [confidential]% of the gross revenues generated by all GSAs in the EEA and, on the other hand, between [confidential] and [confidential]% of the market for online search advertising intermediation in the EEA. 956 Second, the Commission noted, referring to the Microsoft study mentioned in paragraph 576 above, that the prior authorisation clause covered some of the most visited websites in the EEA. In addition, it considered, on the basis of Table 27 of the contested decision, mentioned in paragraphs 870 and 871 above, that the number of queries carried out on direct partners’ websites constituted a large part of all online search queries carried out in the EEA. (1) Market share covered by the prior authorisation clause 957 Google argues that the Commission failed to establish that the prior authorisation clause covered a significant part of the market for online search advertising intermediation in the EEA. 958 First, it is apparent from the Commission’s own calculations that the prior authorisation clause covered only [confidential]% and [confidential]% of that market in 2009 and in 2010, respectively. In addition, the gross revenues generated by GSAs containing that clause represented, on average, between 2009 and 2015, only [confidential]% of the said market and, at most, less than [confidential]% of it. Last, Google notes that the Commission did not assess the coverage of the said clause in relation to 2016. 959 Second, Google criticises the Commission for having combined, for the purposes of the assessment of the effects of the prior authorisation clause, the coverage rate of that clause with that of the placement clause and the exclusivity clause in GSAs concluded with all sites direct partners. In that regard, it notes that the Commission took into account revenues from direct partners which were never subject to the prior authorisation clause and which had typically not included all of their websites in their GSAs. 960 On the one hand, the Commission contends that Google had progressively started to replace, from 2009, the exclusivity clause with the placement and prior authorisation clauses and that, consequently, the fact, cited by Google, that the gross revenues generated by GSAs containing the prior authorisation clause represented, on average, during the period of infringement, [confidential]% of the market for online search advertising intermediation was ‘misleading’. It recalls, in that regard, that the gross revenues generated by GSAs containing the placement clause represented between [confidential] and [confidential]% of that market and that that clause covered some of the most visited websites in the EEA. On the other hand, it notes that it follows from the contested decision that, on 6 September 2016, Google had informed the last direct partner of its decision to waive the placement and prior authorisation clauses. It adds that a certain number of direct partners, including significant direct partners, were party to a GSA containing the prior authorisation clause until 3 June 2016. 961 In that regard, first, it should be recalled that the Commission found, in the contested decision, that the prior authorisation clause had constituted an abuse of a dominant position from 31 March 2009 to 6 September 2016. 962 Second, it should be noted that, in the contested decision, the Commission compared, in recitals 586 and 587 thereof, the proportion of revenues generated by GSAs containing the prior authorisation clause between 2009 and 2015, on the one hand, with the revenues generated by all GSAs and, on the other hand, with the revenues generated in the market for online search advertising intermediation in the EEA. From this it inferred that the rate of coverage of that market by that clause had been ‘significant’ between 2011 and 2015. 963 In addition, it follows from recital 611 of the contested decision, concerning the as-efficient competitor test, that the Commission found that the prior authorisation clause had been capable of producing a foreclosure effect in respect of such a competitor between 2009 and 2015, regard being had to the combined coverage rate of that clause, to the exclusivity clause in GSAs concluded with all sites direct partners, and to the placement clause. 964 Moreover, it is settled that the exclusivity clause in GSAs concluded with all sites direct partners, the placement clause and the prior authorisation clause were able simultaneously to cover different parts of the market for online search advertising intermediation, it being specified that all GSAs containing the prior authorisation clause also contained the placement clause (see paragraphs 594 and 943 above). 965 Accordingly, as follows from paragraphs 603 and 857 above, the Commission cannot be considered to have committed an error of law on the sole ground that it took into account the coverage of the exclusivity clause in GSAs concluded with all sites direct partners as well as that of the placement clause in order to determine whether the coverage rate of the prior authorisation clause had been sufficient to prevent Google’s competitors from accessing a significant part of the market at issue. 966 It follows that the Commission cannot be criticised for having taken into account GSAs concluded by direct partners that were never subject to the prior authorisation clause, or for having taken into account GSAs containing that clause, but in which direct partners had not typically included all of their websites. 967 Furthermore, it has been noted in paragraphs 631 and 859 above that the combined coverage rate of the exclusivity clause in GSAs in which direct partners had typically included all of their websites, on the one hand, and the placement clause, on the other hand, could be sufficient to be capable of producing a foreclosure effect between 2006 and 2015. It follows that the coverage rate of the prior authorisation clause could also be sufficient to be capable of producing such an effect. 968 In those conditions, it is appropriate to find that the circumstance, cited by Google, that a significant part of the online search advertising intermediation market was not covered by the prior authorisation clause is not such as to rule out that that clause was capable of producing a foreclosure effect. 969 However, it should be noted that the Commission did not determine the coverage rate of the prior authorisation clause in relation to 2016. It is limited to stating, in the contested decision, that Google had informed it, on 28 May 2016, that it was intending to remove that clause from all GSAs based on the March 2009 template GSA and that it had notified the last direct partner, on 6 September 2016, of its decision to waive the said clause. However, the Commission did not present, in that decision, evidence allowing for assessment of the extent of the coverage of GSAs containing the clause in question in relation to 2016. In that regard, it must be held that the Commission’s assertion formulated in the defence, according to which four direct partners were still subject to such GSAs until 3 June 2016 is not such as to call that finding into question. 970 Accordingly, it is appropriate to find that the Commission did not establish that the prior authorisation clause could have prevented Google’s competing intermediaries from accessing a significant part of the market for online search advertising intermediation in the EEA in 2016. (2) Website traffic and number of online queries of the websites covered by the prior authorisation clause 971 Google considers, in essence, that the Commission could not prove that the prior authorisation clause had prevented its competitors from accessing a significant part of the online search advertising intermediation market by relying on the Microsoft study and on the fact, alleged in recital 589 of the contested decision referring to Table 27 thereof, that direct partners’ websites constituted a large part of all online queries performed in the EEA. 972 The Commission disputes Google’s line of argument. 973 In that regard, as follows from paragraphs 872 and 875 above, the Commission could merely determine the coverage rate of the prior authorisation clause in order to assess the extent of that coverage. In those conditions, it is appropriate to find that the Commission could rely on the Microsoft study and on the data recorded in Table 27 of the contested decision as indications corroborating the assessment of the said rate. (b) As-efficient competitor test 974 In recital 611 of the contested decision, the Commission noted that the prior authorisation clause was capable of foreclosing a hypothetical competing intermediary as efficient as Google. First, the revenues generated by GSAs containing that clause, between 2011 and 2015, represented between [confidential] and [confidential]% of the market for online search advertising intermediation in the EEA. Second, the revenues generated by the placement clause and the exclusivity clause in GSAs concluded with all sites direct partners, between 2009 and 2015, represented [confidential] to [confidential]% of that market. Third, Google held a ‘very large’ share of the market between 2006 and 2016. Fourth, that market was prone to network effects. 975 The Commission moreover indicated, in recital 612 of the contested decision, that it was ‘doubtful’ whether a hypothetical intermediary as efficient as Google could have emerged during the period of application of the prior authorisation clause. It last found that the question of whether Google had pursued a strategy aimed at excluding competitors as efficient as it was irrelevant. 976 Google argues that the Commission failed to prove that a competitor as efficient as it could not have emerged on the market for online search advertising intermediation owing to the prior authorisation clause. It also criticises the Commission for having considered that the absence of a strategy aimed at competitors as efficient as it was irrelevant in this case. 977 The Commission disputes Google’s line of argument. 978 In that regard, it should be noted that, as has been mentioned in paragraphs 656, 657 and 880 above, the fact that the Commission indicated that it was ‘doubtful’ whether a hypothetical intermediary as efficient as Google could have emerged during the period of application of the prior authorisation clause is not such as to call into question the legality of the contested decision. 979 Moreover, as has been noted in paragraphs 665 and 881 above, the Commission could merely demonstrate the capability of the prior authorisation clause to produce a foreclosure effect by relying on several relevant elements, without necessarily relying, to that end, on the as-efficient competitor test. Furthermore, as has been noted in paragraph 671 above, it is settled that Google did not provide during the administrative procedure – or before the Court – any analysis based on that test. 980 In the case at hand, the very substance of the prior authorisation clause, which essentially provided that direct partners had to obtain Google’s written approval before changing the display of competing ads, and the factors mentioned in recital 611 of the contested decision, namely, on the one hand, the fact that the prior authorisation clause, together with the exclusivity clause in GSAs in which direct partners had typically included all of their websites and the placement clause, covered a significant part of the online search advertising intermediation market, as has been noted in paragraphs 650 and 859 above, and, on the other hand, the extent of Google’s dominant position resulting in particular from its very high market shares and from the barriers to entry and expansion in the form inter alia of network effects, could demonstrate that the prior authorisation clause could be capable of foreclosing a hypothetical competitor as efficient as Google. It follows that those factors could also demonstrate that it was ‘doubtful’ that such a competitor could have emerged during the period of application of the said clause. 981 Last, as follows from paragraphs 678 to 681 above, the Commission cannot be criticised, on the one hand, for not having established that Google had adopted a strategy aimed at excluding competitors at least as efficient as it and, on the other hand, for not having taken into account the fact that it did not intend to exclude such competitors. (c) Duration of GSAs and the unilateral termination right of direct partners 982 In the contested decision, the Commission considered that the average duration of GSAs containing the prior authorisation clause was long. It stated, in that regard, that Google and direct partners had extended certain GSAs, sometimes several times, without substantial modifications. 983 Google criticises the Commission for having confused the length of the commercial relationship with the direct partners subject to the prior authorisation clause with the duration of the GSAs containing that clause. It thus notes that the GSAs mentioned in footnotes 766 and 767 to the contested decision had a duration of two years or less between each renewal or each extension. In addition, it states that the Commission failed to take into account the fact that some direct partners held a unilateral termination right. 984 Vinden claims that the duration of the prior authorisation clause was short and that it had a unilateral termination right by virtue of its 2011 GSA. 985 The Commission refers to its line of argument relating to the merits of Google’s line of argument concerning the exclusivity and placement clauses. It disputes Google’s allegations that, first, the duration of each GSA between two renewals was two years or less and, second, some direct partners had unilateral termination rights. 986 In that regard, as has been indicated in paragraph 919 above, the Commission considered, in the contested decision, that the prior authorisation clause had, on the one hand, deterred direct partners from sourcing from Google’s competing intermediaries and had, on the other hand, prevented those intermediaries from accessing a significant part of the market for online search advertising intermediation. 987 Accordingly, it should be noted that the Commission considered – as it moreover indicated, in essence, in recitals 629 and 630 of the contested decision – that the prior authorisation clause produced a foreclosure effect similar to that of the exclusivity clause in GSAs concluded with all sites direct partners, on the one hand, and to that of the placement clause, on the other hand. 988 In those conditions, it must be held that, as follows from paragraphs 695, 696 and 891 above, the duration of the obligation by which direct partners had to request authorisation from Google before being able to change the display of competing ads counts among the circumstances relevant for assessing the foreclosure effect of that clause. 989 On the one hand, however, it should be noted that, in order to regard the average duration of GSAs containing the prior authorisation clause as long, the Commission relied only, in recital 590 of the contested decision, which refers to recital 519 thereof, mentioned in paragraph 892 above, and in recital 594 thereof, on the fact that certain GSAs had been extended, sometimes several times, without substantial modifications. More specifically, as follows from paragraph 893 above, it is apparent from Annex A.55 to the application and from footnotes 766 and 767 to the contested decision, the content of which restates that of footnote 713 thereto, that the Commission took into account the total duration of those GSAs, by including all of their extensions, where applicable. However, it took into account neither the initial duration of each of the said GSAs, taken individually, nor the duration of each of their extensions, where applicable. 990 On the other hand, it must be pointed out that, in its analysis of the effects of the prior authorisation clause, the Commission made no mention of the unilateral termination rights held by some of the direct partners subject to that clause. It is apparent from Annexes A.55 to the application and C.8 to the reply, however, that at least five direct partners mentioned in Table 28 of the contested decision, namely Vinden, [confidential], [confidential], [confidential] and [confidential], held a unilateral termination right, which the Commission does not dispute. Moreover, it is apparent from footnotes 766 and 767 to that decision that the Commission relied on the duration of GSAs concluded only with 11 direct partners. Accordingly, in line with what has been found in paragraph 897 above, the fact that at least five direct partners held a unilateral termination right cannot be regarded as a sufficiently rare exception to justify its not being taken into account for the purposes of the assessment of the foreclosure effect of the prior authorisation clause. 991 In those conditions, and as follows from paragraph 898 above, the Commission could not, solely on the basis of recitals 590 and 594 of the contested decision and without having examined the actual conditions and the terms under which GSA extensions had been agreed, as well as the substance of the clauses providing for the unilateral termination rights held by some of the direct partners and the conditions in which those rights could be exercised, exclude that those direct partners had the option of sourcing from Google’s competing intermediaries without having to request prior authorisation from it to change the display of competing ads, including before any extension of their GSAs, or before a unilateral termination right had been exercised. It follows that, in those conditions, the Commission also could not find that those intermediaries had not had the possibility of disputing the part of the market for online search advertising intermediation covered by GSAs containing the prior authorisation clause for the total duration of those GSAs, let alone for their cumulative duration. (d) Conclusion on the impossibility for Google’s competing intermediaries to access a significant part of the market for online search advertising intermediation 992 As has been found in paragraph 967 above, the Commission was right to consider that, having regard to the coverage of the exclusivity clause in GSAs concluded by all sites direct partners and of that of the placement clause, in the light of the circumstances recalled in paragraph 602 above, the coverage of the prior authorisation clause could be sufficient to enable that clause to be capable of producing a foreclosure effect between 31 March 2009 and 31 December 2015. In addition, it has been noted in paragraph 980 above that Google was not justified in arguing that the Commission had failed to prove that a competitor as efficient as it could not emerge on the market for online search advertising intermediation or that such a competitor was capable of being excluded from that market. 993 However, on the one hand, as follows from paragraph 969 above, the Commission did not establish that the prior authorisation clause could have produced a foreclosure effect, owing to its coverage, between 1 January and 6 September 2016. On the other hand, as follows from paragraph 991 above, it failed to take into consideration all the relevant circumstances of the case in the context of the assessment of the duration for which direct partners were obliged, by virtue of that clause, to request prior authorisation from Google before changing the display of competing ads on their results pages. 994 It follows that, contrary to what is required by the case-law recalled in paragraph 107 above, the Commission has not demonstrated to the requisite legal standard, in the light of all the circumstances of the case, that the prior authorisation clause was capable of preventing Google’s competing intermediaries from accessing a significant part of the market for online search advertising intermediation in the EEA, for the duration for which that clause applied. 3. Conclusion on the first part of the fourth plea 995 As has been recalled in paragraph 919 above, the Commission considered, in recital 573 of the contested decision, that the prior authorisation clause was capable of restricting competition, in the light of all the circumstances relevant to the case. It noted in that regard that that clause had (i) deterred direct partners from sourcing from Google’s competing intermediaries, (ii) prevented those intermediaries from accessing a significant part of the market for online search advertising intermediation, (iii) possibly deterred innovation, (iv) helped Google to maintain and strengthen its dominant position on the national markets for online search advertising in the EEA, with the exception of Portugal, and (v) possibly harmed consumers. 996 As has been recalled in paragraphs 920 and 921 above, the Commission essentially considered that the prior authorisation clause was capable of producing a foreclosure effect, finding that it had, on the one hand, deterred direct partners from sourcing from Google’s competing intermediaries and had, on the other hand, prevented those intermediaries from accessing a significant part of the market for online search advertising intermediation. In addition, it inferred from that foreclosure effect that that clause had, first, possibly deterred innovation, next, helped Google to maintain and strengthen its dominant position on the national markets for online search advertising at issue and, last, possibly harmed consumers. 997 As has been recalled in paragraph 926 above, in recital 574 of the contested decision, before examining the effects of each of the five restrictions of competition that it identified (see paragraph 995 above), the Commission specified that, for the purposes of its analysis seeking to demonstrate that the prior authorisation clause was capable of restricting competition, it had taken into account the ‘duration of [that c]lause’, referring, in that regard, to Section 8.5.4.2 thereof, relating to the impossibility for Google’s competing intermediaries to access a significant part of the market for online search advertising intermediation, and thus highlighting, rightly, the importance of the developments set out in recitals 589 and 594 included in that section. It also indicated that it had taken into consideration the coverage rate of the said clause, which it examined in the same section of the said decision. It is also apparent from the systemic place of the said recital 574 in the structure of the contested decision that the Commission took into account that duration and that coverage rate when it examined the effects of the prior authorisation clause in the context of each of the five restrictions identified in that decision. 998 As has been found in paragraph 993 above, however, the Commission failed to take into consideration all the relevant circumstances of the case in the context of the assessment of the duration for which direct partners had been obliged, by virtue of the prior authorisation clause, to request prior authorisation from Google before changing the display of competing ads on their results pages. 999 Moreover, as has also been found in paragraph 993 above, the Commission did not establish that the prior authorisation clause could have produced a foreclosure effect, owing to its coverage, between 1 January and 6 September 2016. 1000 It follows that the errors committed by the Commission, recalled in paragraphs 998 and 999 above, vitiate all of the restrictions identified by it in the contested decision, such that it is appropriate to conclude that the Commission has not demonstrated, to the requisite legal standard, that the prior authorisation clause had been capable of deterring direct partners from sourcing from Google’s competing intermediaries or that it had been capable of preventing those intermediaries from accessing a significant part of the market for online search advertising intermediation in the EEA and, consequently, that that clause had been capable of having the foreclosure effect found in the said decision. 1001 In those conditions, it is appropriate to find that the Commission has also not demonstrated, to the requisite legal standard, that the prior authorisation clause had, first, possibly deterred innovation, next, helped Google to maintain and strengthen its dominant position on the national markets for online search advertising at issue and, last, possibly harmed consumers. 1002 It follows that the first part of the fourth plea must be upheld, without it being necessary to rule on the other arguments of Google under that plea, and, consequently, that the contested decision must be annulled to the extent that it found that the prior authorisation clause constituted an infringement of Article 102 TFEU. F. Conclusion on the action 1003 It follows from paragraphs 727, 913 and 1002 above that the Commission has not established any of the three infringements of Article 102 TFEU constituting the single and continuous infringement of that same provision, mentioned in Articles 1 to 3 of the contested decision. Moreover, as Google essentially argues, it is apparent from the scheme and operative part of that decision that the Commission considered that that single and continuous infringement was characterised only in so far as it consisted of separate infringements. 1004 Accordingly, the contested decision must be annulled to the extent that it found that the exclusivity clause in GSAs concluded with all sites direct partners, the placement clause and the prior authorisation clause constituted, together, a single and continuous infringement of Article 102 TFEU, without it being necessary to rule on the merits of Google’s line of argument aimed at challenging specifically the classification of such a single and continuous infringement and, consequently, on the plea of inadmissibility, raised by the Commission, alleging that that line of argument is inadmissible. 1005 It follows from all of the foregoing that the contested decision must be annulled in its entirety, without there being any need to rule on Google’s fifth plea in law. IV. Costs 1006 First, under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has been unsuccessful, it must be ordered to pay the costs incurred by Google, in accordance with the form of order sought by the latter. 1007 Second, in accordance with Article 138(3) of the Rules of Procedure, the Court may order an intervener other than those referred to in paragraphs 1 and 2 of that article to bear its own costs. In this case, Surfboard and Vinden must be ordered to bear their own costs. On those grounds, THE GENERAL COURT (Tenth Chamber, Extended Composition) hereby: 1. Annuls Commission Decision C(2019) 2173 final of 20 March 2019 relating to a proceeding under Article 102 TFEU and Article 54 of the EEA Agreement (Case AT.40411 – Google Search (AdSense)); 2. Orders the European Commission to pay the costs of Google LLC and of Alphabet Inc.; 3. Orders Surfboard Holding BV and Vinden.NL BV to bear their own costs. Kornezov Buttigieg Kowalik-Bańczyk Hesse Petrlík Delivered in open court in Luxembourg on 18 September 2024. V. Di Bucci M. van der Woude Registrar President Table of contents I. Background to the dispute A. Google’s online search advertising intermediation services and contracts B. Administrative procedure C. The contested decision 1. Market definition (a) National markets for online search advertising (1) Product market (2) Geographic market (b) Market for online search advertising intermediation in the EEA (1) Product market (2) Geographic market 2. Dominant position (a) National markets for online search advertising (1) Market shares (2) Barriers to entry and expansion (3) Lack of countervailing buyer power (b) Market for online search advertising intermediation in the EEA (1) Market shares (2) Barriers to entry and expansion (3) Lack of countervailing buyer power 3. Exclusivity clause in GSAs in which direct partners had ‘typically’ included all of their websites (a) Exclusivity clause in GSAs concluded with all sites direct partners to the extent that it constituted an exclusive supply obligation contrary, as such, to Article 102 TFEU (b) Exclusivity clause in GSAs concluded with all sites direct partners to the extent that it constituted an exclusive supply obligation capable of restricting competition within the meaning of Article 102 TFEU (c) Absence of objective justification 4. Placement clause (a) Scope of the placement clause (b) Restriction of competition as a result of the placement clause (c) Absence of objective justification 5. Prior authorisation clause (a) Restriction of competition as a result of the prior authorisation clause (b) Absence of objective justification 6. Single and continuous infringement 7. Effect on trade between Member States 8. The fine II. Forms of order sought III. Law A. Preliminary observations B. First plea: the Commission erroneously defined the relevant markets at issue and Google’s dominant position 1. First part of the first plea: substitutability between online search ads and online non-search ads (a) Preliminary observations (b) Taking into account of the perspective of publishers (c) Taking into account of all relevant factors (d) Google’s arguments relating to the SSNIP test (1) Adequacy of the price analysis carried out by the Commission (2) Merits of the conclusions drawn by the Commission from the price analysis that it carried out (i) Interpretation of the replies to the question on prices – Interpretation of the replies of publishers – Interpretation of the replies of advertisers – Interpretation of the replies of media agencies – Conclusion on the Commission’s interpretation of the replies to the question on prices (ii) Alleged misrepresentation of the replies to the question on prices (e) Merits of the Commission’s analysis concerning the differences in characteristics between the two types of ad at issue (1) Triggering and positioning of the two types of ad at issue (2) Formats of the two types of ad at issue (3) Design costs of the two types of ad at issue (4) Targeting abilities of the two types of ad at issue (5) Purposes of the two types of ad at issue (6) CTRs and conversion rates of the two types of ad at issue (7) Possibilities of measuring the performance of the two types of ad at issue (8) Relevance of the differences in characteristics and uses to the definition of the market (f) Taking into account of examples of the actual conduct of publishers which have allegedly replaced or would replace online search ads with online non-search ads (g) Interpretation of the statements of certain Google representatives (h) Past Commission decisions (i) Conclusion on the first part of the first plea 2. Second part of the first plea: substitutability of the sale of online ads via an intermediary and the sale of such ads directly by publishers (a) Substitutability of the two sales channels at issue from the perspective of publishers (1) Transaction costs for publishers (2) Indicator relating to access to a sufficient advertiser base (3) Lack of ‘proper’ analysis of the substitutability of the two sales channels at issue (4) Publishers using the two sales channels at issue (b) Substitutability of the two sales channels at issue from the perspective of advertisers (c) Taking into account of the Telefónica UK decision (d) Conclusion on the second part of the first plea 3. Conclusion on the first plea C. Second plea: the exclusivity clause in GSAs concluded with all sites direct partners did not constitute an abuse of a dominant position 1. First and second parts of the second plea: the exclusivity clause in GSAs concluded with all sites direct partners did not constitute an exclusive supply obligation within the meaning of the case-law resulting from the judgment of 13 February 1979, Hoffmann-La Roche v Commission (85/76, EU:C:1979:36) and the Commission was required to analyse the effects of that clause 2. Third part of the second plea: the contested decision does not establish that the exclusivity clause in GSAs concluded with all sites direct partners was capable of restricting competition (a) Deterrent effect of the exclusivity clause vis-à-vis all sites direct partners (1) Choice of direct partners to include a website in a GSA (2) Replies of direct partners to the Commission’s various requests for information and Surfboard’s letter (i) Relevance of the replies to Question 5.2.d of the request for information of 22 December 2010 (ii) Relevance of the replies of direct partners that are not all sites direct partners (iii) All sites direct partners identified in the contested decision – Relevance of Google’s line of argument – Reliability of the replies to the request for information of 24 February 2017 (iv) Replies of the all sites direct partners mentioned in recitals 367 and 368 of the contested decision – Replies of [confidential] – Replies of the [confidential] group – Replies of [confidential] – Replies of the [confidential] group – Replies of the [confidential] group – Replies of the [confidential] group, [confidential] and the [confidential] group (v) Other replies of the all sites direct partners cited by Google – Replies of [confidential] and [confidential], [confidential], [confidential], the [confidential] group and the [confidential] group – Replies of [confidential] and the [confidential] group (vi) Surfboard’s letter (vii) Conclusion on the replies of direct partners to the Commission’s various requests for information and Surfboard’s letter (3) Investments made by Yahoo! (4) Preference of publishers for procuring online search ads from one intermediary at a time (i) Study produced by Google during the administrative procedure (ii) Replies of direct partners cited by Google (5) Conclusion on the deterrent effect of the exclusivity clause vis-à-vis all sites direct partners (b) Impossibility for Google’s competing intermediaries to access a significant part of the market for online search advertising intermediation (1) Application of the exclusivity clause to certain online search ad formats (2) Coverage of the market by the exclusivity clause in GSAs concluded with all sites direct partners (i) Taking into account of data subsequent to the conclusion of GSAs for the purpose of calculating the coverage rate of the exclusivity clause (ii) Taking into account of the revenues generated by GSAs concluded with direct partners belonging to the same group as certain all sites direct partners (iii) Taking into account of GSAs containing placement and prior authorisation clauses – Taking into account of the revenues generated by GSAs containing the placement and prior authorisation clauses for the purposes of assessing the foreclosure effects of the exclusivity clause in GSAs concluded with all sites direct partners – Taking into account of the revenues generated by GSAs containing the placement and prior authorisation clauses concluded with direct partners that typically did not include all of their websites in those GSAs for the purposes of assessing the foreclosure effects of the exclusivity clause in GSAs concluded with all sites direct partners (iv) Taking into account of direct partners that had not included all of their websites in their GSAs containing the exclusivity clause for the purpose of calculating the coverage rate of that clause (v) Revenues generated by GSAs concluded with all sites direct partners in 2016 – Exclusivity clause in GSAs concluded with all sites direct partners – Placement clause (vi) Traffic of the websites covered by the exclusivity clause in GSAs concluded with all sites direct partners (vii) Conclusion on the coverage of the market by the exclusivity clause in GSAs concluded by all sites direct partners (3) As-efficient competitor test (i) Preliminary observations (ii) Factors relevant to the application of the as-effective competitor test (iii) Evidence submitted by Google during the administrative procedure (iv) Existence of a strategy aimed at excluding as-efficient competitors (v) Conclusion on the as-efficient competitor test (4) Duration of GSAs and the unilateral termination right of certain direct partners (i) Admissibility of Google’s line of argument (ii) Merits of Google’s line of argument (5) Conclusion on the impossibility for Google’s competing intermediaries to access a significant part of the market for online search advertising intermediation (c) Conclusion on the third part of the second plea D. Third plea: the placement clause did not constitute an abuse of a dominant position 1. First part of the third plea: misinterpretation of the scope of the placement clause (a) Possibility of showing competing ads below Google ads (b) Spaces generating the highest CTR (1) Illustrations in Annex A.52 to the application (2) Figures 5 and 6 of Annex C.11 to the reply (c) Conclusion on the first part of the third plea 2. Second part of the third plea: no restriction of competition as a result of the placement clause (a) Deterrent effect of the placement clause vis-à-vis direct partners (1) Capability of the placement clause to prevent direct partners from evaluating the commercial interest in sourcing from Google’s competing intermediaries (i) Scope of the placement clause (ii) Statements of direct partners – Admissibility of Google’s line of argument – Merits of Google’s line of argument (2) Capability of the placement clause to prevent direct partners from being able to adopt certain configurations for their results pages, when the user visited those pages from a desktop device (3) Commercial interest in direct partners in sourcing from Google’s competing intermediaries in the absence of the placement clause (4) Conclusion on the deterrent effect of the placement clause vis-à-vis direct partners (b) Impossibility for Google’s competing intermediaries to access a significant part of the market for online search advertising intermediation (1) Application of the placement clause to certain online search ad formats (2) Market coverage by the placement clause (i) Market share covered by the placement clause (ii) Traffic and number of online queries of the websites covered by the placement clause (3) As-efficient competitor test (4) Duration of GSAs and the unilateral termination right of some direct partners (5) Conclusion on the impossibility for Google’s competing intermediaries to access a significant part of the market for online search advertising intermediation (c) Conclusion on the second part of the third plea E. Fourth plea: the prior authorisation clause did not constitute an abuse of a dominant position 1. Deterrent effect of the prior authorisation clause vis-à-vis direct partners 2. Impossibility for Google’s competing intermediaries to access a significant part of the market for online search advertising intermediation (a) Market coverage by the prior authorisation clause (1) Market share covered by the prior authorisation clause (2) Website traffic and number of online queries of the websites covered by the prior authorisation clause (b) As-efficient competitor test (c) Duration of GSAs and the unilateral termination right of direct partners (d) Conclusion on the impossibility for Google’s competing intermediaries to access a significant part of the market for online search advertising intermediation 3. Conclusion on the first part of the fourth plea F. Conclusion on the action IV. Costs * Language of the case: English. 1 Confidential information redacted.