Opinion of the Advisory Committee on restrictive practices and dominant positions at its meeting on 6 July 2018 concerning a draft decision in Case AT.40099 — Google Android

Rapporteur: Czechia

(2019/C 402/05)

1. The Advisory Committee agrees with the Commission that: a. The first relevant product market is the worldwide market (excluding China) for the licensing of smart mobile operating systems as defined in the draft decision. b. The second relevant product market is the worldwide market (excluding China) for Android app stores as defined in the draft decision. c. The third relevant product market (or group of markets) consists of national markets for general search services as defined in the draft decision. d. The fourth relevant product market is the worldwide market for non-operating system-specific mobile web browsers as defined in the draft decision.

2. The Advisory Committee agrees with the Commission that Google held a dominant position in: a. The worldwide market (excluding China) for the licensing of smart mobile operating systems since 1 January 2011; b. The worldwide market (excluding China) for Android app stores since 1 January 2011; c. Each national market for general search services in the EEA since 1 January 2011.

3. The Advisory Committee agrees with the Commission’s analysis of the capability of Google’s tying relating to its proprietary mobile apps (namely tying of the Google Search app with the Play Store and tying of Google Chrome with the Play Store and the Google Search app) to have anti-competitive effects and with the Commission’s conclusion that this tying relating to its proprietary mobile apps constitutes an abuse of a dominant position.

4. The Advisory Committee agrees with the Commission that Google has not demonstrated that its tying relating to its proprietary mobile apps was counterbalanced or outweighed by advantages in terms of efficiency that also benefit the consumer.

5. The Advisory Committee agrees with the Commission’s analysis of the capability of Google’s conduct of licensing of the Play Store and the Google Search app on condition that hardware manufacturers enter into the anti-fragmentation obligations in the Anti-fragmentation Agreements to have anti-competitive effects and with the Commission’s conclusion that this conduct constitutes an abuse of a dominant position.

6. The Advisory Committee agrees with the Commission that Google has not demonstrated that its conduct of licensing of the Play Store and the Google Search app on condition that hardware manufacturers enter into the anti-fragmentation obligations in the Anti-fragmentation Agreements was counterbalanced or outweighed by advantages in terms of efficiency that also benefit the consumer.

7. The Advisory Committee agrees with the Commission that the portfolio-based revenue share payments granted by Google to hardware manufacturers and mobile network operators as described in the draft decision were exclusivity payments.

8. The Advisory Committee agrees with the Commission’s analysis of the capability of Google’s conduct of granting portfolio-based revenue share payments to hardware manufacturers and mobile network operators conditional on the pre-installation of no competing general search service on any device within an agreed portfolio to have anti-competitive effects and with the Commission’s conclusion that this conduct constitutes an abuse of a dominant position.

9. The Advisory Committee agrees with the Commission that Google has not demonstrated that its conduct of granting portfolio-based revenue share payments to hardware manufacturers and mobile network operators conditional on the pre-installation of no competing general search service on any device within an agreed portfolio was counterbalanced or outweighed by advantages in terms of efficiency that also benefit the consumer.

10. The Advisory Committee agrees with the Commission’s assessment that all above mentioned conducts constitute a single and continuous infringement as described in the draft decision.

11. The Advisory Committee agrees with the Commission’s assessment as regards the duration of the infringement as described in the draft decision.

12. The Advisory Committee agrees with the Commission that it has jurisdiction to apply Article 102 TFEU and Article 54 EEA in the present case.

13. The Advisory Committee agrees with the Commission that the different forms of conduct covered by the draft decision have individually and collectively an appreciable effect on trade between Member States and between the Contracting Parties within the meaning of Article 102 TFEU and Article 54 EEA.