Official Journal of the European Union

Appeal brought on 20 January 2022 by Google LLC and Alphabet, Inc. against the judgment of the General Court (Ninth Chamber, Extended Composition) delivered on 10 November 2021 in Case T-612/17, Google and Alphabet v Commission

(Case C-48/22 P)

(2022/C 191/14)

Language of the case: English

Parties

Appellants: Google LLC, Alphabet, Inc. (represented by: T. Graf, Rechtsanwalt, R. Snelders, advocaat, C. Thomas, avocat, A. Bray, avocate, M. Pickford QC, and by D. Gregory and H. Mostyn, Barristers)

Other parties to the proceedings: Computer & Communications Industry Association, European Commission, Federal Republic of Germany, EFTA Surveillance Authority, Bureau européen des unions de consommateurs (BEUC), Infederation Ltd, Kelkoo, Verband Deutscher Zeitschriftenverleger eV, Visual Meta GmbH, BDZV — Bundesverband Digitalpublisher und Zeitungsverleger eV, formerly Bundesverband Deutscher Zeitungsverleger eV, Twenga

Form of order sought

The appellants claim that the Court should:

— annul the judgment under appeal;

— annul the Decision (1) or in the alternative remand the case to the General Court;

— order the Commission to bear the appellants’ costs and expenses in connection with these proceedings and the proceedings before the General Court.

Pleas in law and main arguments

In support of the appeal, the appellants rely on four pleas in law.

First plea in law: The General Court erred in upholding the Decision despite the Decision’s failure to meet the legal test for a duty to supply access to comparison shopping services.

— The General Court impermissibly deviated from the Decision by holding that the duty to supply conditions were fulfilled.

— The General Court erred in finding that the duty to supply conditions were not applicable.

Second plea in law: The General Court erred in upholding the Decision despite the Decision’s failure to identify conduct that deviated from competition on the merits.

— The General Court wrongly held that circumstances relevant to the likely effects of Google’s conduct were capable of determining whether Google competed on the merits.

— The General Court impermissibly rewrote the Decision by advancing additional reasons why Google’s conduct supposedly deviated from competition on the merits.

— The General Court’s additional reasons as to why Google did not compete on the merits are legally invalid.

Third plea in law: The General Court erred in its review of the causal link between the alleged abuse and likely effects.

— The General Court erred in holding that the burden to conduct a counterfactual analysis was on Google, rather than the Commission.

— The General Court erred in holding that a counterfactual for an abuse that consists of the combination of two lawful practices requires removing both practices.

— The General Court’s approach vitiates its assessment of both effects and objective justification.

Fourth plea in law: The General Court erred by holding that the Commission did not have to examine whether the conduct was capable of foreclosing as-efficient competitors.

(1) Commission Decision C(2017) 4444 final of 27 June 2017 relating to proceedings under Article 102 TFEU and Article 54 of the EEA Agreement (Case AT.39740 — Google Search (Shopping)).