JUDGMENT OF THE GENERAL COURT (Sixth Chamber, Extended Composition)

14 September 2022 ( *1 )

(Competition – Abuse of dominant position – Smart mobile devices – Decision finding an infringement of Article 102 TFEU and Article 54 of the EEA Agreement – Concepts of multi-sided platform and market (‘ecosystem’) – Operating system (Google Android) – App store (Play Store) – Search and browser applications (Google Search and Chrome) – Agreements with device manufacturers and mobile network operators – Single and continuous infringement – Concepts of overall plan and conduct implemented in the context of the same infringement (product bundles, exclusivity payments and anti-fragmentation obligations) – Exclusionary effects – Rights of the defence – Unlimited jurisdiction)

In Case T‑604/18,

Google LLC, established in Mountain View, California (United States),

Alphabet, Inc., established in Mountain View,

represented by N. Levy, J. Schindler, A. Lamadrid de Pablo, J. Killick, A. Komninos, G. Forwood, lawyers, P. Stuart, D. Gregory, H. Mostyn, Barristers, and M. Pickford QC,

applicants,

supported by

Application Developers Alliance, established in Washington, D.C. (United States), represented by A. Parr, S. Vaz, Solicitors, and R. Baena Zapatero, lawyer,

by

Computer & Communications Industry Association, established in Washington, D.C., represented by E. Batchelor, T. Selwyn Sharpe, Solicitors, and G. de Vasconcelos Lopes, lawyer,

by

Gigaset Communications GmbH, established in Bocholt (Germany), represented by J.‑F. Bellis, lawyer,

by

HMD global Oy, established in Helsinki (Finland), represented by M. Glader and M. Johansson, lawyers,

and by

Opera Norway AS, formerly Opera Software AS, established in Oslo (Norway), represented by M. Glader and M. Johansson, lawyers,

interveners,

v

European Commission, represented by N. Khan, A. Dawes, C. Urraca Caviedes and F. Castillo de la Torre, acting as Agents,

defendant,

supported by

BDZV – Bundesverband Digitalpublisher und Zeitungsverleger eV, formerly Bundesverband Deutscher Zeitungsverleger eV, established in Berlin (Germany), represented by T. Höppner, professor, and P. Westerhoff, lawyer,

by

Bureau européen des unions de consommateurs (BEUC), established in Brussels (Belgium), represented by A. Fratini, lawyer,

by

FairSearch AISBL, established in Brussels, represented by T. Vinje, D. Paemen and K. Missenden, lawyers,

by

Qwant, established in Paris (France), represented by T. Höppner, professor, and P. Westerhoff, lawyer,

by

Seznam.cz, a.s., established in Prague (Czech Republic), represented by M. Felgr, T. Vinje, D. Paemen, J. Dobrý and P. Chytil, lawyers,

and by

Verband Deutscher Zeitschriftenverleger eV, established in Berlin, represented by T. Höppner, professor, and P. Westerhoff, lawyer,

interveners,

THE GENERAL COURT (Sixth Chamber, Extended Composition),

composed of A. Marcoulli, President, S. Frimodt Nielsen (Rapporteur), J. Schwarcz, C. Iliopoulos and R. Norkus, Judges,

Registrar: C. Kristensen, Head of Unit,

having regard to the written part of the procedure and further to the hearing which took place from 27 September to 1 October 2021,

gives the following

Judgment

1 By their action under Article 263 TFEU, Google LLC (formerly Google Inc.) and Alphabet, Inc., of which Google LLC is the subsidiary (together, ‘Google’ or ‘the applicants’), seek, principally, annulment of Commission Decision C(2018) 4761 final of 18 July 2018 relating to a proceeding under Article 102 TFEU and Article 54 of the EEA Agreement (Case AT.40099 – Google Android) (‘the contested decision’) or, failing that, cancellation or reduction of the fine that was imposed on them in that decision.

I. Background to the dispute

2 Google is an undertaking in the information and communications technology sector specialising in internet-related products and services and operating within the European Economic Area (EEA).

A. Context of the case

3 In 2005, in order to take account of the emergence and development of the mobile internet and of the likely change in user behaviour to which that would lead as regards general searches performed online, Google acquired the undertaking that had originally developed the Android operating system (‘OS’) for smart mobile devices. According to the European Commission, in July 2018 approximately 80% of smart mobile devices used in Europe and worldwide were running Android.

4 When Google develops a new version of Android, it publishes the source code online. This allows third parties to download and modify that code to create Android ‘forks’ (a fork being new software created from the source code of existing software). The Android source code released under an open-source licence (Android Open Source Project licence; ‘the AOSP licence’) covers the basic features of an OS, but not the Android applications (‘apps’) and services owned by Google. Original equipment manufacturers (‘OEMs’) who wish to obtain Google apps and services must therefore enter into agreements with Google. Google also enters into such agreements with mobile network operators (‘MNOs’) who wish to be able to install Google’s proprietary apps and services on devices sold to end users.

5 Some of those agreements form the subject matter of the present case.

B. Procedure before the Commission

6 On 25 March 2013, FairSearch AISBL, an association of undertakings active in the information and communications technology sector, lodged a complaint with the Commission regarding some of Google’s business practices in the mobile internet. Following that complaint, the Commission sent requests for information to Google, its customers, its competitors and other entities operating in that environment. Other entities also complained to the Commission about Google’s conduct in the mobile internet.

7 On 15 April 2015, the Commission initiated a procedure against Google in relation to Android.

8 On 20 April 2016, the Commission sent a statement of objections to Google. A non-confidential version of the statement of objections was also sent to 17 complainants and interested third parties.

9 Between October 2016 and October 2017, the Commission received comments on the statement of objections from 11 complainants and interested third parties. In December 2016, Google submitted the final version of its response to the statement of objections (‘the response to the statement of objections’). Google had not at that time requested a hearing.

10 Between August 2017 and May 2018, the Commission provided Google with various pieces of evidence capable of supporting the conclusions set out in the statement of objections. This evidence was communicated in particular by means of a first letter of facts, on 31 August 2017, and a second letter of facts on 11 April 2018. Google submitted its observations on those letters on 23 October 2017 and 7 May 2018, respectively.

11 In addition, in September 2017, Google requested all relevant documents relating to the Commission’s meetings with third parties. The Commission replied to that request in February 2018.

12 Google had access to the file in 2016 following the statement of objections, in 2017 following the first letter of facts, and in 2018 following the second letter of facts.

13 On 7 May 2018, Google requested a hearing. On 18 May 2018, the Commission refused that request.

14 On 21 June 2018, at Google’s request, the Commission provided it with two letters received from interested third parties. Google submitted its observations on those documents on 27 June 2018.

C. Contested decision

15 On 18 July 2018, the Commission adopted the contested decision. In that decision, the Commission imposed a fine on Google LLC and, in part, on Alphabet, Inc. for having infringed competition rules by imposing anticompetitive contractual restrictions on OEMs and MNOs in order to protect and consolidate Google’s dominant position on the national markets, within the EEA, for general search services.

16 Three sets of contractual restrictions are identified in the contested decision: – restrictions contained in the Mobile Application Distribution Agreements (‘MADAs’), under which Google required OEMs to pre-install its general search app (Google Search) and browser app (Chrome) in order for them to be able to obtain a licence to use its app store (Play Store); – restrictions contained in the Anti-Fragmentation Agreements (‘AFAs’), under which OEMs that wished to pre-install Google apps could not sell devices running versions of Android that were not approved by Google; – restrictions contained in the Revenue Share Agreements (‘RSAs’), under which Google granted OEMs and MNOs a percentage of its advertising revenue, provided that those manufacturers or operators had agreed not to pre-install a competing general search service on any device within an agreed portfolio (‘portfolio-based RSAs’).

17 As regards the duration of the contractual restrictions (together, ‘the restrictions at issue’), those linked to the MADAs lasted, in the case of the Google Search and Play Store bundle, from 1 January 2011 to the date of the contested decision and, in the case of the Chrome, Google Search and Play Store bundle, from 1 August 2012 to the date of the contested decision; those linked to the AFAs lasted from 1 January 2011 to the date of the contested decision; and those linked to the RSAs lasted from 1 January 2011 to 31 March 2014, the date on which the last portfolio-based RSA ended.

18 According to the Commission, the objective of the restrictions at issue was to protect and strengthen Google’s dominant position in relation to general search services and, therefore, the revenue obtained by Google through search advertisements. The common objective and the interdependence of the restrictions at issue led the Commission to classify them as a single and continuous infringement of Article 102 TFEU and Article 54 of the EEA Agreement.

19 In order to penalise what it considered to be abusive practices, the Commission imposed a fine of EUR 4342865000 on Google. In determining that amount, the Commission took into consideration the value of relevant sales within the EEA, in relation to the single and continuous infringement, achieved by Google during the last year of participation in the infringement (2017), and applied a gravity coefficient (11%). The Commission then multiplied the amount obtained by the number of years of participation in the infringement (approximately 7.52) and added an additional amount (equivalent to 11% of the value of sales in 2017) in order to deter similar undertakings from engaging in the same practices. The Commission also considered that it was not appropriate to find that there were mitigating or aggravating circumstances, or to take particular account of Google’s significant financial capacity in order to decrease or increase the amount of the fine.

20 The Commission also required Google to bring those practices to an end within 90 days of the notification of the contested decision.

II. Procedure and forms of order sought

21 By application lodged at the Court Registry on 9 October 2018, Google brought the present action.

22 At the Commission’s request, the time limit for lodging the defence was extended several times. It was ultimately set at 15 March 2019, and the defence was lodged on that date.

23 At Google’s request, the time limit for lodging the reply was extended several times. It was ultimately set at 1 July 2019, and the reply was lodged on that date.

24 At the Commission’s request, the time limit for lodging the rejoinder was extended several times. It was ultimately set at 29 November 2019, and the rejoinder was lodged on that date.

A. Applications to intervene

25 Eleven applications to intervene were submitted within the time limit laid down by Article 143(1) of the Rules of Procedure of the General Court.

26 By order of the President of the Third Chamber of 23 September 2019: – Application Developers Alliance (‘ADA’); Computer & Communications Industry Association (‘CCIA’); Gigaset Communications GmbH (‘Gigaset’); HMD global Oy (‘HMD’) and Opera Norway AS, formerly Opera Software AS (‘Opera’) were granted leave to intervene in support of the form of order sought by Google; – Bureau européen des unions de consommateurs (BEUC), Verband Deutscher Zeitschriftenverleger eV (‘VDZ’), BDZV – Bundesverband Digitalpublisher und Zeitungsverleger eV (‘BDZV’), Seznam.cz, a.s. (‘Seznam’), FairSearch and Qwant were granted leave to intervene in support of the form of order sought by the Commission.

27 In order to enable the interveners to express their views on all of the main parties’ pleadings, the time limit for lodging statements in intervention was set to run from the lodging of the consolidated non-confidential version of the rejoinder.

28 At the request of certain interveners, the time limit for lodging statements in intervention was extended several times. It was ultimately set at 30 June 2020, and all of those statements in intervention were lodged on that date.

29 On 12 October 2020, the main parties lodged their observations on the statements in intervention.

B. Conduct of the proceedings, principal requests for confidential treatment and preparation of the case

30 At the request of the main parties, the time limit for lodging requests for confidential treatment of the application, the defence, the reply and the rejoinder was extended several times. For the application and the defence, the time limit was ultimately set at 13 September 2019, and the main parties lodged a consolidated non-confidential version of each of those documents on that date. For the reply and the rejoinder, the time limit was ultimately set at 11 December 2019 and 1 May 2020, respectively, and the main parties lodged a consolidated version of each of those documents on those dates.

31 As regards those documents, the only objections to the requests for confidential treatment were submitted by FairSearch on 20 March 2020 in relation to Google’s claim for confidentiality in respect of three annexes to the rejoinder.

32 On 7 April 2020, by way of a measure of organisation of procedure as provided for in Article 89 of the Rules of Procedure, the Court asked Google for clarification of the scope of its claim for confidentiality in respect of the three annexes identified by FairSearch. Google replied on 23 April 2020 and produced new versions of those annexes.

33 On 6 May 2020, by way of a measure of organisation of procedure, the Court asked FairSearch whether, in the light of the new versions of the three annexes to the rejoinder provided by Google, it maintained its objections regarding the confidentiality of those documents. FairSearch replied on 1 June 2020, stating that it did not maintain its objections.

34 At the request of the main parties, the time limit for lodging requests for confidential treatment of their observations on the statements in intervention was extended several times. It was ultimately set at 11 December 2020, and consolidated non-confidential versions of those observations were lodged on that date.

35 As regards the observations of the main parties on the statements in intervention, the only objections to the requests for confidential treatment were submitted by BEUC on 8 January 2021 in relation to Google’s claim for confidentiality concerning an annex to the application and certain passages in Google’s observations on BEUC’s statement in intervention.

36 On 21 January 2021, in the context of a measure of organisation of procedure, the Court asked Google for clarification of the scope of its claim for confidentiality concerning that annex to the application and those passages in its observations. Google replied on 27 January 2021 and produced new versions of the annex to the application identified by BEUC and of its observations on BEUC’s statement in intervention.

37 On 18 February 2021, by way of a measure of organisation of procedure, the Court asked BEUC whether, in the light of the new non-confidential version of the annex which it had identified, and the new non-confidential version of Google’s observations on its statement in intervention, it maintained its objections. BEUC replied on 5 March 2021, stating that it did not maintain its objections.

38 The combined efforts of all parties throughout the procedure made it possible, notwithstanding the diverging interests often at stake, to resolve the difficulties associated with the confidential nature of the information, data and documents relied on in the present case, and to authorise examination of the case on the basis of a consolidated non-confidential version. Certain confidential data known to the main parties were replaced subsequently by the ranges used in the public version of the contested decision available on the Commission’s website.

39 Following a change in the composition of the Chambers of the Court, pursuant to Article 27(5) of the Rules of Procedure, the Judge-Rapporteur was assigned to the Sixth Chamber of the Court, to which the present case was accordingly allocated.

40 The written part of the procedure was closed on 19 March 2021 with the communication of the last of the observations on the requests for confidential treatment.

41 On 6 April 2021, Google requested a hearing.

42 On a proposal from the Sixth Chamber, the Court decided, pursuant to Article 28 of the Rules of Procedure, to refer the case to the Sixth Chamber sitting in extended composition.

43 On a proposal from the Judge-Rapporteur, the Court decided to open the oral part of the procedure.

44 On 25 June 2021, by way of measures of organisation of procedure, the Court requested the parties to reply to a first set of questions. The parties replied to those questions concerning the substance of the case and the main parties submitted their written observations on those replies.

45 On 5 July 2021, the Court invited the parties to comment on the proposed schedule for the various days of the hearing. That schedule was adjusted in the light of the comments made in that regard.

46 A report for the hearing was sent to the parties and, on 7 September and 24 September 2021, Google and the Commission, respectively, submitted observations on that document. The Court took formal note of those observations.

47 The main parties and the interveners presented oral argument and answered the oral questions put to them by the Court at the hearing which took place over five days, from 27 September to 1 October 2021.

C. Forms of order sought

48 Google, supported by ADA, CCIA, Gigaset, HMD and Opera, claims that the Court should: – annul the contested decision; – failing that, cancel or reduce the fine; – order the Commission to pay the costs; – order BEUC, VDZ, BDZV, Seznam, FairSearch and Qwant to pay the costs related to their intervention.

49 ADA, CCIA, Gigaset, HMD and Opera also claim that the Court should order the Commission to pay the costs related to their intervention.

50 The Commission, supported by BEUC, VDZ, BDZV, Seznam, FairSearch and Qwant, contends that the Court should: – dismiss the action; – order Google to pay the costs; – order ADA, CCIA, Gigaset, HMD and Opera to pay the costs related to their intervention.

51 BEUC, VDZ, BDZV, Seznam, FairSearch and Qwant also contend that the Court should order Google to pay the costs related to their intervention.

III. Law

52 In support of the action, the applicants put forward six pleas in law: – the first plea, alleging that the assessment of market definition and dominance is incorrect; – the second plea, alleging that the finding that the MADAs’ pre-installation conditions were abusive is incorrect; – the third plea, alleging that the finding that the sole pre-installation condition included in the portfolio-based RSAs was abusive is incorrect; – the fourth plea, alleging that the finding that it was abusive for Google to make Play Store and Google Search licences conditional on compliance with the AFAs’ anti-fragmentation obligations is incorrect; – the fifth plea, alleging infringement of the rights of the defence; – the sixth plea, alleging that the various factors taken into account to calculate the fine were incorrectly assessed.

A. Preliminary observations

53 Before examining the parties’ arguments, it is appropriate to make some observations on the commercial context of the conduct penalised, the rules governing judicial review of the contested decision and the taking of evidence and the admissibility of the evidence submitted to the Court.

1. The commercial context of the conduct penalised

54 The online dictionary Merriam-Webster defines the verb ‘to google’ as the action of ‘[using] the Google search engine to obtain information about someone or something on the World Wide Web’. Very few undertakings achieve such renown that their name gives rise to a verb and this alone attests to the importance that Google has acquired in everyday life.

(a) Business model centred on searches using Google Search

55 Google derives most of its revenue from its flagship product, its search engine Google Search. On smart mobile devices, users can access Google Search using the Google Search app or via other entry points, such as the search widget, or an address bar in the browser. That search engine provides general search services and allows users to search across the entire internet for answers to their queries (recitals 94 to 101 and 106 of the contested decision).

56 Google’s business model is based on the interaction between, on the one hand, internet-related products and services offered for the most part free of charge to users and, on the other hand, online advertising services from which it derives the vast majority of its revenues. Thus, the Android OS, the app store Play Store, the Google Search app, the Chrome browser, the email service Gmail, the file storage and editing service Google Drive, the geolocation service Google Maps and the content distribution service YouTube are offered free of charge. Other services are paid services, such as Google Play Music and Movie, and some offer a paid premium version, such as YouTube and Google Drive (recital 107 of, and footnote 65 to, the contested decision). In 2016, for example, online advertising accounted for 88.7% of Google’s total revenues, 80% of which was generated via Google’s websites, in particular Google Search’s homepage (recitals 105 to 107 of, and footnote 62 to, the contested decision).

57 Unlike the business model adopted, for example, by the company Apple, which is based on vertical integration and the sale of higher-end smart mobile devices, Google’s business model is based first and foremost on increasing the numbers of users of its online search services so that it can sell its online advertising services (recital 153 of the contested decision).

58 When users interact with its products and services, Google collects data on their commercial activities and the use of their devices. The data obtained includes, in particular, contact information (name, address, email address, telephone number); account authentication data (username and password); demographic information (gender and date of birth); details of the card or bank account used; information about the content served to the user (advertisement, pages visited and so forth); interaction data, such as clicks; location data; and data relating to the device and operator used. Those data allow Google to strengthen its ability to present relevant search responses and advertisements (recitals 109 to 111 of the contested decision).

(b) Practices adopted in the shift to the mobile internet

59 Google’s business model was initially developed in a personal computer (PC) environment where the web browser was the core entry point to the internet. In the mid-2000s, Google concluded that the development of the mobile internet was going to represent a fundamental change in users’ behaviour, in particular in view of the opportunities offered by geolocation.

60 That projected expansion prompted Google to develop a strategy to anticipate the effects of that change and ensure that users would perform their searches on mobile devices via Google Search (recitals 112 to 117 of the contested decision). There were several aspects of that strategy.

61 First, in 2005 Google acquired the original developer of the Android OS in order to take over its development and maintenance (recitals 120 to 123 of the contested decision). The Android OS is made available free of charge to OEMs, MNOs and app developers under an open-source licence, the AOSP licence (recital 124 of the contested decision). The Android OS is also part of an ‘ecosystem’ incorporating other elements such as all Google Mobile services (GMS bundle or Google Mobile Services; ‘the GMS suite’) (see recital 133 of the contested decision), which include, inter alia, the app store Play Store, the Google Search app and the Chrome browser. The first commercial versions of Android devices were marketed in 2008-2009.

62 Second, in 2007 Google entered into an agreement with Apple whereby Google Search became the default general search service on all of Apple’s smart mobile devices since the launch of the iPhone. As a result of that agreement Google Search accounted, in 2010, for more than half of the internet traffic on the iPhone and almost a third of all mobile internet traffic (recitals 118 and 119 of the contested decision).

63 In addition, Google is also active in the production of Google Android devices with its own Nexus and Pixel ranges (recitals 152 and 153 of the contested decision).

(c) Single infringement with a number of aspects

64 In the present case, the Commission found that certain aspects of Google’s strategy for adapting its business model to the transition to the mobile internet constituted an abuse of a dominant position.

65 That was the case as regards the restrictions at issue which Google imposed on OEMs and MNOs in order to ensure that traffic on Google Android devices would be directed to the Google Search search engine. In the Commission’s view, those practices had the effect of depriving Google’s competitors – such as Qwant or Seznam – of the possibility of competing with it on their own merits, and EU consumers of the advantages of effective competition, such as the possibility of using a search engine that prioritises the protection of privacy, is adapted to particular linguistic features or focuses on value-added content, particularly in the field of information.

66 As stated above, according to Sections 11 to 13 of the contested decision, the restrictions at issue were threefold: – restrictions contained in the MADAs, under which Google required OEMs to pre-install its general search app (Google Search) and browser app (Chrome) in order for them to be able to obtain a licence to use its online app store (Play Store); – restrictions contained in the AFAs, under which OEMs that wished to pre-install Google’s apps could not sell devices running versions of Android that were not approved by Google; – restrictions contained in the portfolio-based RSAs, under which Google granted OEMs and MNOs a percentage of its advertising revenue, provided that those manufacturers and those operators had agreed not to pre-install a competing general search service on any device within an agreed portfolio.

67 In the Commission’s view, the restrictions at issue formed part of an overall strategy by Google to cement its dominant position on the online general search market at a time when the importance of the mobile internet was growing significantly (see Section 14 of the contested decision).

68 The objective of that strategy was to preserve Google’s chances of having consumers use its search engine when performing their general searches on the internet, which guaranteed not only that it would obtain the corresponding advertising revenue, but also that it would acquire the information necessary for improving its services. While the means employed were numerous and interacted, the objective was broadly the same: – the purpose of the MADAs was to enable Google to ensure that Google Android devices marketed had the Google Search app and Chrome browser, the two main entry points for a general search; the effect of the pre-installation of those apps was thus to enable Google to take advantage of the ‘status quo bias’ associated with them, an advantage that had significant effects on competition by reducing, in particular, the choices available to consumers; – the purpose of the AFAs was to enable Google to prevent the emergence of solutions likely to exploit the Android OS to its detriment; thus the company Amazon did not succeed in using Android to develop its own solutions in terms of corresponding apps and services; – the purpose of the portfolio-based RSAs, which admittedly did not cover all Google Android devices and were implemented only for a short period, was to enable Google to obtain what was not formally provided for by the other agreements, namely exclusivity; under those revenue sharing agreements, major OEMs and MNOs undertook to pre-install only the Google Search search engine.

69 It is also necessary to highlight an important point in the Commission’s reasoning in the contested decision, in particular in recitals 738 and 739 and in Section 14.2.

70 The Commission identified restrictions at issue of three types in the MADAs, the AFAs and the portfolio-based RSAs, and took the view that these gave rise to ‘four separate infringements’ of Article 102 TFEU.

71 However, the Commission also found that those restrictions, and the infringements arising from them, pursued an identical objective and were complementary and interdependent. Together they thus constituted a ‘single and continuous infringement’ for which a single fine was imposed.

72 That infringement thus had several aspects, each of them having evolved over time according to its own parameters, yet all being linked by the common objective of ensuring that Google had the best possible access to general searches carried out by consumers on smart mobile devices. There was, it is claimed, also a not insignificant ‘cumulative effect’ linked to the combination of the various aspects of that infringement. In particular, the effects of the restrictions at issue were not the same once the guaranteed presence permitted by the MADAs, although non-exclusive, was strengthened by the exclusivity conferred by the RSAs.

2. The rules governing judicial review

73 It should be noted that the system of judicial review of Commission decisions relating to proceedings under Articles 101 and 102 TFEU consists in a review of the legality of the acts of the institutions for which provision is made in Article 263 TFEU, which may be supplemented, pursuant to Article 261 TFEU and at the request of the applicant, by the General Court’s exercise of unlimited jurisdiction with regard to the penalties imposed in that regard by the Commission (see judgment of 26 September 2018, Infineon Technologies v Commission, C‑99/17 P, EU:C:2018:773, paragraph 47 and the case-law cited).

(a) In-depth review of all the relevant evidence

74 As regards the review of legality provided for in Article 263 TFEU, it should be noted that the scope of that review extends to all the elements of Commission decisions relating to proceedings applying Articles 101 and 102 TFEU which are subject to in-depth review by the General Court, in law and in fact, in the light of the pleas raised by the applicant and taking into account all the relevant evidence submitted by the latter (see judgment of 26 September 2018, Infineon Technologies v Commission, C‑99/17 P, EU:C:2018:773, paragraph 48 and the case-law cited).

75 In that regard, in so far as the contested decision imposes a fine and a periodic penalty payment for an infringement of competition law, the Courts of the European Union must, inter alia, establish not only whether the evidence relied on by the Commission is factually accurate, reliable and consistent but also whether that evidence contains all the information which must be taken into account in order to assess whether the circumstances constituting the infringement exist, and whether that evidence substantiates the Commission’s interpretation of it in the contested decision (see, to that effect, judgment of 8 December 2011, Chalkor v Commission, C‑386/10 P, EU:C:2011:815, paragraph 54 and the case-law cited).

76 Unlike, for example, a prospective analysis of the kind required for the examination of a proposed concentration, which makes it necessary to predict events which are more or less likely to occur in future if a decision prohibiting the planned concentration or laying down the conditions for it is not adopted, it is usually a matter for the Commission, when penalising an abuse of a dominant position, to examine past events, for which there is generally a variety of evidence available that makes it possible to understand the causes and to assess the effects on effective competition (see, to that effect, judgment of 15 February 2005, Commission v Tetra Laval, C‑12/03 P, EU:C:2005:87, paragraph 42).

77 In such a situation, it is for the Commission to prove not only the existence of the abuse but also its duration. More particularly, the Commission must prove the infringement which it has found and adduce evidence capable of demonstrating to the requisite legal standard the existence of the circumstances constituting the infringement (see, to that effect, judgments of 5 October 2011, Romana Tabacchi v Commission, T‑11/06, EU:T:2011:560, paragraph 129 and the case-law cited, and of 15 July 2015, Trafilerie Meridionali v Commission, T‑422/10, EU:T:2015:512, paragraph 88 and the case-law cited).

78 In this respect, any doubt in the mind of the Court must operate to the advantage of the undertaking to which the decision finding the infringement was addressed. The Court cannot therefore conclude that the Commission has established the infringement at issue to the requisite legal standard if it still entertains any doubts on that point, in particular in proceedings for annulment or variation of a decision imposing a fine (see, to that effect, judgments of 5 October 2011, Romana Tabacchi v Commission, T‑11/06, EU:T:2011:560, paragraph 129 and the case-law cited, and of 15 July 2015, Trafilerie Meridionali v Commission, T‑422/10, EU:T:2015:512, paragraph 88 and the case-law cited).

79 In particular, where the Commission finds an infringement of the competition rules on the basis that the facts established cannot be explained other than by the existence of anticompetitive behaviour, the Court will find it necessary to annul the decision in question if the undertaking concerned puts forward arguments which cast the facts established by the Commission in a different light and which thus allow another plausible explanation of the facts to be substituted for the one adopted by the Commission in concluding that there has been an infringement. In such a case, the Commission cannot be regarded as having furnished proof of the existence of an infringement of competition law (see, to that effect, judgments of 28 March 1984, Compagnie royale asturienne des mines and Rheinzink v Commission, 29/83 and 30/83, EU:C:1984:130, paragraph 16, and of 31 March 1993, Ahlström Osakeyhtiö and Others v Commission, C‑89/85, C‑104/85, C‑114/85, C‑116/85, C‑117/85 and C‑125/85 to C‑129/85, EU:C:1993:120, paragraphs 126 and 127).

80 Where there is any doubt as to the existence of circumstances constituting the infringement, it is necessary to take account of the principle of the presumption of innocence, which is one of the fundamental rights protected in the EU legal order and which has been affirmed by Article 48(1) of the Charter of Fundamental Rights of the European Union. Given the nature of the infringements in question and the nature and degree of severity of the ensuing penalties, the principle of the presumption of innocence applies in particular to the procedures relating to infringements of the competition rules applicable to undertakings that may result in the imposition of fines or periodic penalty payments. It is accordingly necessary for the Commission to produce sufficiently precise and consistent evidence to support the firm conviction that the alleged infringement took place (see, to that effect, judgments of 5 October 2011, Romana Tabacchi v Commission, T‑11/06, EU:T:2011:560, paragraph 129 and the case-law cited, and of 15 July 2015, Trafilerie Meridionali v Commission, T‑422/10, EU:T:2015:512, paragraph 88 and the case-law cited).

81 Nevertheless, although the Commission must produce sufficiently precise and consistent evidence to support the firm conviction that the infringement took place, it must be pointed out that it is not necessary for every item of evidence produced by the Commission to satisfy those criteria in relation to every aspect of the infringement. It is sufficient if the body of evidence relied on by the Commission, viewed as a whole, meets that requirement (see, to that effect, judgment of 26 January 2017, Commission v Keramag Keramische Werke and Others, C‑613/13 P, EU:C:2017:49, paragraph 52 and the case-law cited).

(b) Unlimited jurisdiction with regard to the fine

82 As regards the unlimited jurisdiction conferred on the EU judicature by Article 31 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101 and 102 TFEU] (OJ 2003 L 1, p. 1) in accordance with Article 261 TFEU, this empowers the competent Court, in addition to carrying out a mere review of legality with regard to the penalty, to substitute its own appraisal for the Commission’s and, consequently, to cancel, reduce or increase the fine or penalty payment imposed (see judgment of 26 September 2018, Infineon Technologies v Commission, C‑99/17 P, EU:C:2018:773, paragraph 193 and the case-law cited).

83 In particular, in order to satisfy the requirements of Article 47 of the Charter of Fundamental Rights when conducting a review in the exercise of its unlimited jurisdiction with regard to the fine, the EU judicature is bound, in the exercise of the powers conferred by Articles 261 and 263 TFEU, to examine all complaints based on issues of fact and law which seek to show that the amount of the fine is not commensurate with the gravity or the duration of the infringement (see judgment of 26 September 2018, Infineon Technologies v Commission, C‑99/17 P, EU:C:2018:773, paragraph 195 and the case-law cited).

84 In that context, it has, in particular, been held that the gravity of the infringement must be assessed on an individual basis and that, in order to determine the amount of a fine, it is necessary to take account of the duration of the infringement and of all the factors capable of affecting the assessment of its gravity, such as, inter alia, the conduct of the undertaking concerned, its role in the establishment of the abusive practices, the profit which it was able to derive from those practices or the intensity of the incidents of anticompetitive conduct (see, to that effect, judgment of 26 September 2018, Infineon Technologies v Commission, C‑99/17 P, EU:C:2018:773, paragraphs 196 and 197 and the case-law cited).

85 That exercise does not require the Court to apply the Commission’s guidelines on the method of setting fines (see, to that effect, judgment of 14 September 2016, Trafilerie Meridionali v Commission, C‑519/15 P, EU:C:2016:682, paragraphs 52 to 55).

86 In conclusion, the EU judicature can vary the contested measure, even without annulling it, in order to cancel, reduce or increase the amount of the fine imposed. That jurisdiction is exercised by taking account of all the factual circumstances. It follows that the EU judicature is empowered to exercise its unlimited jurisdiction where the question of the amount of the fine is put before it, and the exercise of that jurisdiction entails the definitive transfer to the EU judicature of the power to impose penalties (see order of 7 July 2016, Westfälische Drahtindustrie and Pampus Industriebeteiligungen v Commission, C‑523/15 P, EU:C:2016:541, paragraphs 32 to 34 and the case-law cited).

3. The taking of evidence and the various objections in that regard

87 In the present action, both the Commission and Google dispute the relevance, or admissibility, of certain arguments and related evidence submitted by them or by the interveners.

88 That is the case as regards, for example, certain statements made by a Google executive or employee or by an interested party; certain statements or certain reports submitted at a party’s request by a third party on the basis of the latter’s status as expert; and documents produced in order to establish a fact that may be described as well known which is referred to in the contested decision and is disputed before the Court, specifically the concept of the ‘status quo bias’ identified in psychology to illustrate irrational behaviour that explains the aversion to change. The same is true for documents drawn up on the basis of an undertaking’s own internal information and produced to support or to refute a claim made in the contested decision or in the present action.

89 In that regard, first, it must be recalled that the judicial review of a Commission decision relating to proceedings applying Article 101 or 102 TFEU is carried out taking into account all the evidence submitted by the applicant, whether it predates or post-dates the decision that is contested, whether it was submitted previously in the context of the administrative procedure or, for the first time, in the context of the proceedings before the Court, in so far as that evidence is relevant (see, to that effect, judgment of 21 January 2016, Galp Energía España and Others v Commission, C‑603/13 P, EU:C:2016:38, paragraph 72 and the case-law cited).

90 Similarly, in the exercise of its unlimited jurisdiction, it is for the Court to assess, on the date on which it adopts its decision, whether the applicant received an appropriate fine (see, to that effect, judgment of 11 July 2014, Esso and Others v Commission, T‑540/08, EU:T:2014:630, paragraph 133 and the case-law cited). In that context, the Court is entitled to take into account all the factual circumstances which it considers to be relevant, whether they be prior to or subsequent to the decision at issue (order of 7 July 2016, Westfälische Drahtindustrie and Pampus Industriebeteiligungen v Commission, C‑523/15 P, EU:C:2016:541, paragraph 43 and the case-law cited).

91 In the present case, it follows from those principles that, if they are relevant to the Court’s assessment, the arguments and related evidence submitted by the applicants for the first time before the Court cannot be rejected on the pretext that they were not previously presented to the Commission in the administrative procedure.

92 Second, it must also be noted that the principle which prevails in EU law is that of the unfettered evaluation of evidence, from which it follows that, where evidence has been obtained lawfully, its admissibility cannot be contested before the General Court, and that the only relevant criterion for the purpose of assessing the probative value of evidence lawfully adduced relates to its credibility (see judgment of 26 September 2018, Infineon Technologies v Commission, C‑99/17 P, EU:C:2018:773, paragraph 65 and the case-law cited).

93 In application of that principle, it is apparent in the present case that there is no reason for the Court to assume that the various items of evidence produced by the parties were not obtained lawfully or that they are not sufficiently credible to be taken into consideration in its evaluation.

94 In that respect, as regards the probative value of the various items of evidence that have been challenged, it may be noted as follows.

95 First of all, as regards the statements made by a Google executive or employee or by an interested party, it must be pointed out that, while those statements cannot be considered to have no probative value, the fact remains that such statements are intended either to mitigate the liability of the undertaking concerned by the proceedings or to support a finding of liability on the part of that undertaking in order either to defend or to accuse it, depending on the particular interests of the party submitting the statement. Therefore, while those statements have probative value, this must be viewed in the context of the probative value of the various documents, such as emails or other internal documents, which directly concern the period and the facts at issue (see, to that effect, judgment of 8 July 2008, Lafarge v Commission, T‑54/03, not published, EU:T:2008:255, paragraph 379).

96 Similarly, as regards the statements or reports submitted – at a party’s request to support its claims – by a third party on the basis of the latter’s status as expert, it should be noted that the probative value of such documents is assessed in several respects. The author must ensure that he or she sets out his or her qualifications and experience and explains how they are relevant to his or her providing an opinion on the question under consideration. Moreover, in terms of its content the opinion must set out the reasons why it should be taken into consideration, whether as regards the reliability of the methodology used or the relevance of the answer given to that question for the purposes of the present case. It is in the light of those principles and the observations submitted by the parties in that respect that the Court has examined those documents in the present case.

97 Last, as regards documents produced in order to demonstrate the existence of what may be described as a matter of common knowledge that is referred to in the contested decision, it is apparent from the case-law that these must be held to be admissible (see, to that effect, judgment of 5 February 2020, Hickies v EUIPO (Shape of a shoe lace), T‑573/18, EU:T:2020:32, paragraph 18). Such documents in essence merely demonstrate that there is a consensus as to the meaning commonly given to the concept of ‘status quo bias’ relied on by certain undertakings and reproduced by the Commission in the contested decision.

98 Third, it must be noted that while, under Article 85 of the Rules of Procedure, evidence produced or offered is, in principle, to be submitted in the first exchange of pleadings, the main parties may still produce such evidence in the reply and rejoinder in support of their arguments or even, exceptionally, before the oral part of the procedure is closed, provided that the delay in its submission is justified. However, it is apparent from the case-law that evidence in rebuttal and the amplification of the offers of evidence submitted in response to an argument or evidence in rebuttal in the defence are not covered by the time-bar laid down by that provision. That provision concerns offers of fresh evidence and must be read in the light of Article 92(7) of those rules, which expressly provides that evidence may be submitted in rebuttal and previous evidence may be amplified (see, to that effect, judgments of 17 December 1998, Baustahlgewebe v Commission, C‑185/95 P, EU:C:1998:608, paragraphs 71 and 72, and of 5 December 2006, Westfalen Gassen Nederland v Commission, T‑303/02, EU:T:2006:374, paragraph 189).

99 In the present case, it is apparent from the examination of the various objections made by the parties, challenging the relevance, or admissibility, of certain arguments and related evidence submitted by the main parties or by the interveners, that they can all be rejected on the ground that those arguments and that evidence relate to the exercise of the adversarial principle, since the parties concerned submitted them in order to respond to an argument or evidence in rebuttal that had just been communicated to the Court.

100 On that basis, the Court considers that both the evidence submitted for the first time in the context of the action and the facts relied on or evidence produced in order to refute arguments submitted by another party during the proceedings, where required in the light of internal data, or to prove a matter of common knowledge cannot be declared inadmissible, and that their relevance may be assessed subsequently in the context of the examination of the various pleas put forward in challenging the contested decision.

101 The various pleas in law put forward by Google in support of the action and all the evidence produced by the parties must be examined in the light of those considerations.

B. The first plea, alleging that the assessment of the definition of the relevant market and dominance is incorrect

102 By the first plea in law of the action, which is divided into three parts, Google complains that the Commission made a number of errors of assessment in the definition of the relevant markets and in the subsequent assessment of its dominant position on some of those markets.

1. Background

103 As a preliminary point, in order to consider the concept of competition between ‘ecosystems’ highlighted by Google in the context of the present plea, it is necessary, first, to recall the main issue in determining the relevant market in relation to abuse of a dominant position, and, second, to examine the particular circumstances of the present case.

(a) Concepts of relevant market, dominant position and competitive constraints, particularly in the context of an ‘ecosystem’

104 It must be recalled that, in the application of Article 102 TFEU, the objective of the definition of the relevant market is to define the boundaries within which it must be assessed whether the undertaking concerned is able to behave, to an appreciable extent, independently of its competitors, customers and consumers (see judgment of 30 January 2020, Generics (UK) and Others, C‑307/18, EU:C:2020:52, paragraph 127 and the case-law cited).

105 The definition of the relevant market is therefore, as a general rule, a prerequisite of any assessment of whether the undertaking concerned holds a dominant position. That exercise involves defining, first, the goods or services which form part of the relevant market (‘the product market’) and then, second, the geographical dimension of that market (see judgment of 30 January 2020, Generics (UK) and Others, C‑307/18, EU:C:2020:52, paragraphs 127 and 128 and the case-law cited).

106 As regards the product market, the concept of the relevant market implies that there can be effective competition between the products or services which form part of it, and this presupposes that there is a sufficient degree of interchangeability or substitutability between those products and those services. That interchangeability or substitutability is not assessed solely in relation to the objective characteristics of the products or services at issue. The conditions of competition and the structure of supply and demand on that market must also be taken into consideration (see judgment of 30 January 2020, Generics (UK) and Others, C‑307/18, EU:C:2020:52, paragraph 129 and the case-law cited).

107 In its geographical dimension, the relevant market is the territory within which the conditions of competition are the same and form an area which is sufficiently homogeneous to be considered in its entirety and to enable the effect of the economic power of the undertaking concerned to be evaluated (see, to that effect, judgment of 14 February 1978, United Brands and United Brands Continentaal v Commission, 27/76, EU:C:1978:22, paragraphs 11, 44, 52 and 53).

108 Applying those principles, the dominant position referred to in Article 102 TFEU thus relates to a position of economic strength enjoyed by an undertaking which enables it to prevent effective competition being maintained on the relevant market by giving it the power to behave to an appreciable extent independently of its competitors, customers and ultimately of its consumers (judgment of 14 February 1978, United Brands and United Brands Continentaal v Commission, 27/76, EU:C:1978:22, paragraph 65).

109 In that regard, it must be pointed out that the purpose of determining the relevant market and the dominant position held on that market by the undertaking concerned is not only to define the fact and extent of internal competitive constraints specific to that market, but also to verify that there are no external competitive constraints from products, services or territories other than those which form part of the relevant market under consideration.

110 In general terms, it is necessary for the Commission to identify and define the boundaries within which the undertakings compete in order to determine whether the undertaking concerned can, to an appreciable extent, act independently of the constraints imposed by effective competition.

111 As the Court of Justice has previously pointed out, the interchangeability and substitutability of products or services are naturally dynamic, in that a new supply may alter the conception of the products or services considered to be interchangeable with a product or service already present on the market or as substitutable for that product or a service and, in that way, justify a new definition of the parameters of the relevant market (judgment of 30 January 2020, Generics (UK) and Others, C‑307/18, EU:C:2020:52, paragraph 130).

112 Such a finding presupposes, however, that there is a sufficient degree of interchangeability between the products or services which form part of the relevant market and those envisaged to meet the demand on that market. That would be the case if the alternative provider was in a position to respond to demand within a short period of time with sufficient strength to constitute a serious counterbalance to the power held by the undertaking concerned on the relevant market (see, to that effect, judgment of 30 January 2020, Generics (UK) and Others, C‑307/18, EU:C:2020:52, paragraphs 132 and 133).

113 Although, in certain circumstances, it may therefore be appropriate to examine the external constraint that an alternative supply might represent, it is also necessary to take account of the specific features inherent in certain situations, in particular in the case of several interlocking markets.

114 Although the principles set out above remain valid for the purpose of defining a clear and transparent analytical framework for the concepts of relevant market and dominance, their application sometimes calls for a more detailed examination, going beyond mere segmentation into markets, in order better to assess the competitive constraints prevailing on those markets and the position of economic strength enjoyed by the undertaking concerned.

115 That is particularly so in the case of markets which, as in the present case, fall within the digital economy, where traditional parameters such as the price of products or services or the market share of the undertaking concerned may be less important than in traditional markets, compared to other variables such as innovation, access to data, multi-sidedness, user behaviour or network effects.

116 Thus, in a digital ‘ecosystem’, which brings together several categories of supplier, customer and consumer and causes them to interact within a platform, the products or services which form part of the relevant markets that make up that ecosystem may overlap or be connected to each other on the basis of their horizontal or vertical complementarity. Taken together, the relevant markets may also have a global dimension in the light of the system that brings its components together and of any competitive constraints within that system or from other systems.

117 Identifying the conditions of competition relevant to the assessment of the position of economic strength enjoyed by the undertaking concerned may therefore require multi-level or multi-directional examination in order to determine the fact and extent of the various competitive constraints that may be exerted on that undertaking.

118 In conclusion, what is important in the context of the present plea is to ascertain, in the light of the parties’ arguments and of the reasoning set out in the contested decision, whether Google’s exercise of the power attributed to it by the Commission on the relevant markets enabled Google to act to an appreciable extent independently of the various factors likely to constrain its behaviour.

119 According to Google, as it argued in essence during the administrative procedure and as it argues again in the context of the present plea, the Commission should have taken account of its claims that, because of the competitive constraints exerted by Apple’s ecosystem, Google did not have the power to prevent effective competition from being maintained on the relevant markets linked to the Android ecosystem.

(b) Distinct but interconnected markets

120 In the present case, it should be noted first of all that the Commission identified four types of relevant market (recitals 217 and 402 of the contested decision): (i) the worldwide market (excluding China) for the licensing of OSs, in the sense of the licensing of smart mobile device operating systems (see paragraph 3 above; ‘the market for licensable OSs’); (ii) the worldwide market (excluding China) for Android app stores; (iii) the various national markets, within the EEA, for the provision of general search services; and (iv) the worldwide market for non OS-specific internet browsers designed for mobile use (‘mobile web browsers’).

121 Next, the Commission found that Google held a dominant position on the first three markets (recital 439 of the contested decision), that is to say that Google was, to an appreciable extent, able to behave on those markets independently of its competitors, its customers and consumers.

122 In its analysis, the Commission took into account, inter alia, the competitive pressure exerted by Apple on Google, described as an ‘indirect constraint’, in that it was exerted at the level of users and of app developers (recital 242 of the contested decision), and judged ‘insufficient’ to call into question Google’s dominant positions on the relevant markets (recitals 243, 322, 479 to 559 and 652 to 672 of the contested decision). According to the contested decision, Apple and the iOS ecosystem were not in a position to exercise a sufficient competitive constraint on Google and the Android ecosystem.

123 In that regard, in the first place, it should be noted that, for reasons of expediency and without prejudice to its position in that respect, Google indicates in the application that it chose not to challenge the finding made in the contested decision as to its dominance of the various national markets for general search services.

124 In the absence of any argument invoked in that respect apart from the passing observation made subsequently by Google regarding the conditions of competition examined by the Commission in relation to the market for general search services in the Czech Republic, where it is not disputed that Google’s market share is smaller than it is in the other countries of the EEA, there is no need for the Court to call into question the Commission’s findings in relation to those national markets in recitals 674 to 727 of the contested decision.

125 For the purposes of the present case, it must therefore be held that the Commission duly established in the contested decision that Google, being in a position to behave, to an appreciable extent, independently of its competitors, its customers and consumers, held a dominant position on the various national markets for general search services in the EEA (see recitals 674 and 675 of the contested decision and the reasoning supporting that conclusion).

126 In the second place, it must be pointed out that while the relevant markets are presented separately in the contested decision, they cannot be artificially separated in so far as they all had complementary aspects that were duly mentioned by the Commission.

127 That was true of the market for licensable OSs and of the market for Android app stores. Apps that were accessible from an Android app store were of interest only because they ran on the licensed Android OS. Conversely, a licensable OS was dependent, in terms of increasing its attractiveness, on the number, variety and quality of apps that could run on that OS (recitals 84 to 88 and 271 of the contested decision).

128 Likewise, the national markets for general search services could not be dissociated from the markets for licensable OSs, Android app stores and non OS-specific mobile web browsers. Taken together, the products or services covered by those three types of relevant market constituted an entry point to general search services (see, for example, recital 1341 of the contested decision).

129 It is against that factual background of distinct but interconnected relevant markets and the implementation of an overall strategy aimed essentially, according to the Commission, at securing Google’s dominant position on the national markets for general search services that the arguments relating to the first plea must be examined.

2. The first part, concerning dominance in the licensing of OSs for smart mobile devices

130 In defining the market for licensable OSs, the Commission considered it appropriate to exclude from that market operating systems for computers, operating systems for mobile devices with limited functionality and non-licensable OSs, in the sense of non-licensable operating systems for smart mobile devices, including Apple’s iOS. On the other hand, the Commission indicated that this market included all licensable OSs and did not distinguish between OSs for smartphones or for tablets (recitals 218 to 267 of the contested decision).

131 Next, the Commission found that, with its Google Android devices, Google held a dominant position on the market for licensable OSs. In reaching that conclusion, the Commission relied on Google’s market share and its evolution over time, the examination of barriers to entry and expansion, the lack of countervailing buyer power and the fact that non-licensable OSs, in particular Apple’s iOS, exercised an insufficient competitive constraint (recitals 440 to 589 of the contested decision).

132 In the first part of the first plea, Google submits that the Commission erred in its assessment of Google’s position on that market by failing properly to take into account competition from non-licensable OSs, in particular Apple’s iOS, and competition due to the AOSP licence.

(a) Admissibility of the first part

133 The Commission contends that, in so far as the first part of the plea seeks to challenge the definition of the market for licensable OSs, it must be held to be inadmissible; Google is challenging only the finding of its dominant position on that market.

134 In that regard, although Google’s arguments are focused on its alleged dominance on the market for licensable OSs and the title of the first part of the plea is worded accordingly, the fact remains that, by its arguments, Google criticises the Commission for having defined that market from the perspective of OEMs and not of users or app developers, who would take account of the competitive constraint exerted by Apple.

135 That line of argument is understandable in the light of the reasoning that led the Commission not to include non-licensable OSs in the relevant market, which takes into consideration, inter alia, the fact that competition from Apple was indirect and insufficient and the fact that the approaches identified in the judgment of 22 October 2002, Schneider Electric v Commission (T‑310/01, EU:T:2002:254), invoked by Google, were not applicable (see Section 7.3.5 in relation to market definition and recitals 241 to 245 of the contested decision). In addition, at the stage of the definition of the market for licensable OSs, the Commission itself referred to the reasoning developed in order to assess Google’s dominant position on that market, which also takes into consideration the competitive constraint that may be exercised by Apple, in particular with regard to users or app developers (see recitals 243 and 267 of the contested decision which refer to Section 9.3.4 in relation to the assessment of dominance).

136 Therefore, in so far as Google challenges both the reasoning used to define the market for licensable OSs and that developed to assess its dominant position on that market, there is no need to limit the admissibility of the first part of the plea to the second part of the contested reasoning.

137 Accordingly, it must be held that Google’s arguments challenging the definition of the market for licensable OSs on the basis of the first part of the first plea are admissible.

(b) Substance of the first part

138 In support of the first part of the first plea, Google puts forward two complaints, alleging, first, that the competitive constraint exerted by non-licensable OSs, in particular Apple’s iOS, was wrongly assessed and, second, that the competitive constraint exerted by the open-source nature of the AOSP licence was wrongly assessed.

(1) The competitive constraint exerted by non-licensable OSs

139 In the contested decision, the Commission found that non-licensable OSs were not part of the same market as licensable OSs (see recitals 238 to 267 of the contested decision) and that Google’s dominant position on the market for licensable OSs was not affected by the competitive constraint exerted on that market by the non-licensable OSs of Apple and BlackBerry (see recitals 479 to 589 of the contested decision). Thus, although the definition of the relevant market and Google’s position on that market are dealt with separately, the issues raised at those two stages of the contested decision are closely related.

140 It must be noted in that regard that, in order to define the market for licensable OSs, the Commission took into consideration the fact, not contested by Google, that OEMs did not have access to the non-licensable OSs, in particular to Apple’s iOS (recital 239 of the contested decision). Therefore, the role likely to be played by non-licensable OSs could be examined, as moreover Google argued, only at the level of users and app developers (recital 241(2) and recital 243 of the contested decision). The Commission found, however, that that indirect competition was insufficient to counterbalance Google’s market power (recital 243 with a reference to Section 9.3.4 of the contested decision).

141 In reaching that conclusion, the Commission considered, inter alia, the possibility of a small but significant non-transitory decrease in quality (‘quality degradation’ or ‘the SSNDQ test’) in respect of Android. By that test, it examined the reaction of users and app developers to a deterioration in the quality of Android. In other words, the Commission verified whether Google could refrain from developing and financing Android without its users and app developers responding by favouring an alternative.

142 In the first part of the plea, Google complains that the Commission ignored the competition from Apple so far as users and app developers were concerned, both in relation to the definition of the market for licensable OSs and when assessing its power on that market. First, according to Google, the Commission wrongly disregarded evidence of the competitive constraint exerted by Apple. Second, it failed to take account of the principles laid down in the judgment of 22 October 2002, Schneider Electric v Commission (T‑310/01, EU:T:2002:254), which envisaged competition from vertically integrated undertakings. Third, with the SSNDQ test, which remains an imprecise instrument, the Commission underestimated the impact of a deterioration in the quality of Android by incorrectly assessing the sensitivity of users to the quality of the OS, the importance of Apple’s pricing policy, the costs of switching to another OS, the loyalty of users to their OS and the behaviour of app developers.

(i) Evidence of a competitive constraint exerted by Apple

– Arguments of the parties

143 Google, like the parties intervening in its support, claims that the Commission wrongly rejected a variety of evidence of the competitive constraint exerted by Apple, including, first, the significant investments made by Google in developing the Android OS; second, the regularity of innovations released for the Android OS and for Apple’s iOS; and, third, the documents referred to in recitals 250 to 252 of the contested decision, which illustrate the competition from Apple.

144 The Commission states at the outset that it properly concluded that the competitive constraints from the non-licensable OSs of Apple and BlackBerry were insufficient. In that regard it contends that, first, Google’s investments in developing Android are motivated by its financial interest; second, the innovation race claimed by Google has not been demonstrated, given, in particular, that users do not choose an OS but a device; and, third, the documents referred to by Google are few and insufficient to establish the existence of a sufficient competitive constraint on the part of Apple.

– Findings of the Court

145 In claiming that the assessment of the competitive constraint exercised by Apple on the market for licensable OSs and on Google’s dominant position on that market is incorrect, Google relies on a variety of evidence which may be summarised as follows: – statements by one of its executives, who claims that it invested in Android in response to the competitive constraint exercised by Apple; – certain responses to the Commission’s information requests, annexed to the application, which refer to competition between Apple and Google; – two internal Google documents, namely an email dated 16 May 2012 and an internal presentation from October 2011, referred to in recital 252 of the contested decision, from which it is apparent that Google is under attack from its competitors, which include Apple, and that Google’s objective is to compete with a vertically integrated Apple.

146 In that regard, first of all, it should be recalled that Google does not dispute the fact that the competitive constraint exercised by Apple did not exist with regard to OEMs, as pointed out by the Commission (see recitals 239, 249 and 252 of the contested decision). Google merely invokes the competition from Apple as regards users and app developers, which was examined by the Commission which found that that competitive constraint was not only indirect but also insufficient (see recitals 242, 243 and the reference to Section 9.3.4, and recitals 249 and 267 of the contested decision).

147 Next, it must be noted that it is not apparent from the various items of evidence relied on by Google that Apple exerts a competitive constraint capable of preventing it from behaving, to an appreciable extent, independently of its competitors, its customers and consumers. The statements of a Google executive and the responses from various undertakings to the Commission’s requests for information do not establish that the indirect competition from Apple, as regards users and app developers, was sufficiently strong to counteract Google’s power on the market for licensable OSs. Those documents indicate only that Google and other undertakings perceive Apple as a competitor. They are hardly conclusive as to whether Google is significantly constrained by the competition exerted by Apple on the market at issue here. The same conclusion must be drawn as regards the two internal Google documents referred to by the Commission in recital 252 of the contested decision, which merely attest to the existence of a competitive relationship between Google and Apple but do not enable the importance of that relationship to be assessed and are not such as to establish its significance in the light of Google’s power on the market for licensable OSs.

148 As regards, more specifically, Google’s claims that the size of its investment in Android and the parallel innovations of Android and iOS are evidence of vigorous competition with Apple, these are not sufficient to call into question the Commission’s reasoning as set out in the contested decision.

149 First, Google’s investment in the development of Android cannot, in itself, be attributed to the importance of competition by Apple with Google as regards users of smart mobile devices and developers of apps for those devices. As the Commission correctly states, those investments are attributable essentially to the fact that Android was an essential element of Google’s strategy for responding to the challenge of the shift to the mobile internet, as that OS allows Google’s general search services to be incorporated on smart mobile devices.

150 Second, the Commission has already responded to the argument based on the parallelism of innovation in the contested decision by observing, in particular, without being contradicted in this respect in the present action, that that parallelism was not as regular as Google claimed, since some of the pre-2011 updates of Apple’s iOS referred to were only intermediate updates to maintain the OS and not genuine updates, and the slowdown in Android updates from 2011, and therefore its alignment with those of iOS, was probably accounted for by the fact that it acquired significant market power from that date, enabling it to keep Android versions in place for longer without having to invest as much in updating them as in the past (see recitals 258 to 262 of the contested decision).

151 Thus, the Commission cannot be criticised for having placed the alleged innovation race between Android and iOS over the period from 2008 to 2011 in context, in so far as, over that period, only three successive versions of iOS had been developed, compared with seven for Android. In the same way, the Commission correctly concluded that, rather than reflecting the competitive constraint exerted by Apple, which in any event was not sufficient, the decrease in the frequency of Android updates from 2011 onwards was capable of substantiating the existence of Google’s market power.

152 Therefore, in so far as a cause-and-effect relationship between an iOS update and an Android update can be relied on to any extent, the evidence invoked in that respect does not establish that that relationship was so significant as to have enabled Apple to constrain Google in such a way that Google could not behave, to an appreciable extent, independently of its competitors, its customers and consumers.

153 Last, as regards the criticisms levelled at the Commission’s rejection, in recital 251 of the contested decision, of documents predating 2011 on the ground that Google did not then have a dominant position on the market for licensable OSs, it should be noted that the competitive situation before and after 2011 changed as a result of the evolution of Google’s position on that market. The importance of the competitive pressure exercised by Apple cannot therefore be assessed on the basis of data relating to a period when Google did not hold a dominant position, and the Commission thus correctly considered the documents at issue not to be relevant to its assessment. Nor, moreover, would that assessment have changed if those documents had been taken into consideration, in that, although they illustrate a competitive constraint exerted by Apple, they do not enable its importance to be assessed and are not such as to establish its significance in the light of Google’s power on the market for licensable OSs.

154 Consequently, all of Google’s arguments relating to the assessment of certain evidence concerning the competitive constraint exerted by Apple’s iOS on the market for licensable OSs must be rejected.

(ii) Consideration of the judgment of 22 October 2002, Schneider Electric v Commission (T‑310/01, EU:T:2002:254), and consistency with previous practice in taking decisions

– Arguments of the parties

155 Google submits that, by failing to take into account the competitive constraint exerted by Apple, the Commission made the same error as that penalised by the Court in the judgment of 22 October 2002, Schneider Electric v Commission (T‑310/01, EU:T:2002:254). In that case, the Court held that, in assessing the position of a non-integrated undertaking on a downstream market, competition on the same market from integrated undertakings had to be taken into account. Google also claims that the Commission undermined the consistency of its practice in taking decisions.

156 The Commission notes that the factual context of the present case differs from that of the case that gave rise to the judgment of 22 October 2002, Schneider Electric v Commission (T‑310/01, EU:T:2002:254), in the absence, in particular, of competition between Apple and Google as regards OEMs. Furthermore, in its submission, the decisions on which Google relies do not reveal any inconsistency with the Commission’s practice.

– Findings of the Court

157 In the first place, as regards the taking into account of the judgment of 22 October 2002, Schneider Electric v Commission (T‑310/01, EU:T:2002:254), it must be recalled that that judgment disposes of an action for annulment brought against a decision declaring a merger between two undertakings, Schneider Electric SA and Legrand SA, to be incompatible with the internal market. In that judgment, the Court annulled the Commission’s decision on the ground, inter alia, that the Commission had failed to take proper account of the market power of integrated undertakings and had thereby overestimated the market power of non-integrated undertakings, in particular that of the entity formed by the merger between Schneider and Legrand.

158 More specifically, it is apparent from paragraph 282 of the judgment of 22 October 2002, Schneider Electric v Commission (T‑310/01, EU:T:2002:254), that non-integrated producers of panel-board components, like Schneider and Legrand, faced competition from integrated producers at two levels. That competition manifested itself directly in the participation of integrated producers and assemblers from their networks in tenders in which non-integrated producers, in association on an ad hoc basis with other assemblers, also participated. It also manifested itself indirectly in that the integrated producers would sell their components to assemblers who had won a tender but who were not part of their networks. In both cases, the non-integrated producers faced competition from integrated producers.

159 The factual context of the present case differs, however, from that of the case that gave rise to the judgment of 22 October 2002, Schneider Electric v Commission (T‑310/01, EU:T:2002:254). First, the downstream market was not characterised by tendering procedures in which Apple and Google would bid directly. Competition on the downstream market for users was between Apple and other OEMs, which did not assemble their mobile devices solely from components sold by Google. The OS was only one of a number of elements. Even if, by integrating Android, OEMs became associated with Google and competed with Apple, as an integrated undertaking, competition so far as users were concerned could nevertheless not be reduced to the OS alone.

160 Second, as the Commission rightly noted in recital 245 of the contested decision, Apple, as an integrated undertaking, did not offer iOS to OEMs. There could not, therefore, have been competition between Apple and Google at that level. The position would have been different if, in addition to selling iOS devices, Apple offered to license its OS. Whereas, in the judgment of 22 October 2002, Schneider Electric v Commission (T‑310/01, EU:T:2002:254), integrated and non-integrated undertakings competed to offer their components to assemblers, that was not so in the present case.

161 As regards OEMs, iOS and Android were therefore not substitutable, which justified not defining a market as encompassing all OSs. Although Google did indeed face competition from Apple so far as users or app developers were concerned, in that the OS could be one of the parameters which they would take into account before purchasing a mobile device or developing an app for that OS, it was only one of a number of parameters. Substitutability therefore appeared to be limited to that level, which could explain, as the Commission noted in recital 243 of the contested decision, iOS and Android not being included in the same market.

162 In any event, the Commission cannot be criticised for having overlooked in the contested decision the competition from Apple as regards users and app developers, the Commission having taken that into account in concluding that competition was both indirect and insufficient.

163 Accordingly, the Commission was correct not to have applied, in the present case, the approaches identified in the judgment of 22 October 2002, Schneider Electric v Commission (T‑310/01, EU:T:2002:254).

164 In the second place, as regards the consistency of the contested decision with the Commission’s previous practice in taking decisions, it should be recalled that decisions in other cases can give only an indication, in so far as the facts of those cases are not the same (see, to that effect, judgment of 16 September 2013, Roca Sanitario v Commission, T‑408/10, EU:T:2013:440, paragraph 64 and the case-law cited).

165 In any case, the Commission is required to carry out an individual appraisal of the circumstances of each case, without being bound by previous decisions concerning other undertakings, other product and service markets or other geographic markets at different times (see judgment of 9 September 2009, Clearstream v Commission, T‑301/04, EU:T:2009:317, paragraph 55 and the case-law cited). Accordingly, the Commission cannot be criticised for having undermined the consistency of its practice in taking decisions given the particular circumstances of the present case.

166 In any event, first, it is apparent from Commission Decision C(2012) 2405 final of 4 April 2012 declaring a concentration to be compatible with the common market and the functioning of the EEA Agreement (Case COMP/M.6439 – AGRANA/RWA/JV) that the integrated undertakings had, in that case, been regarded as exercising a competitive constraint in that they were able to divert and sell part of their juice concentrate production to third parties. In the present case, however, Apple did not offer its OS to third parties at all. Furthermore, while it is apparent from recital 115 of the abovementioned decision that the Commission took account of the existence of an indirect competitive constraint from integrated undertakings for juice concentrate processors, no difference to the present case can be identified. The Commission did examine the indirect competitive constraint exerted by Apple but ultimately did not consider it relevant to its assessment because of its insufficiency.

167 Second, as regards the approach taken in Commission Decision C(2014) 8546 final of 12 November 2014 declaring a concentration to be compatible with the common market and the functioning of the EEA Agreement (Case COMP/M.7342 – Alcoa/Firth Rixson); and in Commission Decision C(2005) 2676 final of 13 July 2005 declaring a concentration to be compatible with the common market and the functioning of the EEA Agreement (Case COMP/M.3653 – Siemens/VA Tech), this is similar to that followed in the present case; accordingly no inconsistency can be identified. In those decisions, the Commission examined the importance of the competitive constraint likely to be exerted on the relevant market by vertically integrated undertakings.

168 Third, in Commission Decision C(2012) 1068 final of 13 February 2012 declaring a concentration to be compatible with the common market and the functioning of the EEA Agreement (Case COMP/M.6381 – Google/Motorola Mobility), the Commission did not in any way find that licensable and non-licensable mobile OSs belonged to the same market. It is apparent from recital 30 of that decision that the Commission preferred to leave that question open as the merger between Google and Motorola Mobility did not raise any difficulties in that respect.

169 Fourth, the same is true of Commission Decision C(2009) 10033 of 16 December 2009 relating to a proceeding under Article 102 [TFEU] and Article 54 of the EEA Agreement (Case COMP/39.530 – Microsoft (tying)). Although, in the light of recital 17 of that decision, there may be some doubt as to the definition of a market encompassing both licensed and unlicensed PC operating systems, it must be noted that that issue did not generate any debate. It is clear from recital 30 of that decision that Microsoft did not in any way deny holding a dominant position on the market for PC operating systems.

170 Fifth, examination of Commission Decision C(2013) 8873 of 4 December 2013 declaring a concentration to be compatible with the common market and the functioning of the EEA Agreement (Case COMP/M.7047 – Microsoft/Nokia) provides the same insight. It is apparent from recital 102 of that decision that the Commission did not take any view on the existence or otherwise of a market for licensable and non-licensable OSs.

171 Accordingly, the Commission cannot be criticised for having undermined the consistency of its practice in taking decisions, and therefore the arguments put forward by Google in that regard must be rejected.

(iii) The SSNDQ test

– Arguments of the parties

172 In Google’s view, the Commission contradicted itself when it envisaged a situation in which there might be a deterioration in the quality of Android in so far as it asserted, at the same time, that Google had every interest in ensuring the widest possible distribution of Android devices. Google also points out, as do the parties intervening in its support, that the quality degradation test used in that regard is imprecise and that it does not know how, specifically, the test was applied.

173 According to the Commission, first, there is no inconsistency between the statement that Google’s commercial strategy was to increase the distribution of Android devices and the statement that Google could profitably degrade the quality of Android. That does not mean, however, that it is in Google’s interest to degrade Android’s quality. Second, the Commission emphasises that it cannot be required to define a precise standard of quality degradation to apply the SSNDQ test, as this would render it unworkable in practice.

– Findings of the Court

174 It should be observed that, in the contested decision, the Commission envisaged the possibility of a deterioration in the quality of Android in order to assess Google’s position on the market for licensable OSs. The Commission indicated in that regard that users and app developers of licensable OSs were not sufficiently sensitive to a deterioration in the quality of Android (recital 483 of the contested decision). It also referred to that assessment in order to define the scope of the market for licensable OSs (see recitals 243 and 267 of the contested decision).

175 Thus, in essence, because of an indirect and insufficient constraint as regards users and app developers, the Commission found that non-licensable OSs did not belong to the same market as licensable OSs and the undertakings operating the former, in particular Apple, would not counterbalance Google’s market power.

176 First of all, for the purposes of defining a relevant market and evaluating, on that market, the competitive situation of the undertaking concerned, the Commission may rely on a body of evidence, without being required to follow a rigid hierarchy of different sources of information or types of evidence available to it (see, to that effect, judgment of 11 January 2017, Topps Europe v Commission, T‑699/14, not published, EU:T:2017:2, paragraphs 80 to 82).

177 In the case of a product that was very unlikely to lend itself to the classic hypothetical monopolist test aimed at verifying the market’s response to a small but significant and non-transitory increase in the price of an asset (Small but Significant and Non-Transitory Increase in Price), the SSNDQ test, which envisages the quality degradation of the product at issue, did constitute relevant evidence for the purpose of defining the relevant market. Competition between undertakings can indeed take place in terms of price, but also in terms of quality and innovation.

178 That hypothesis could also be used, in Sections 9.3.4.1 to 9.3.4.3 of the contested decision, to verify whether Google, holding a dominant position on the market for licensable OSs, was constrained by competition from Apple, which was outside that market. The finding, at the market definition stage, of weak substitutability of indirect demand where there is a deterioration in the quality of a product also remained relevant, at the stage of the assessment of dominance, for the purpose of assessing the constraint from an undertaking marketing a different product, one that was outside the market thus defined.

179 Next, the formulation of that hypothesis in no way implies, as Google wrongly claims, that the Commission stated that it was in Google’s interest to degrade the quality of Android. On the contrary, the examination of a deterioration in the quality of Android was intended merely to ascertain whether Google was subject to a competitive constraint from Apple so far as users and app developers were concerned, as was claimed by Google during the administrative procedure.

180 Last, defining a precise quantitative standard of degradation of quality of the target product cannot be a prerequisite for the application of the SSNDQ test. The hypothesis of a small deterioration in the quality of Android did not require – as in the case of the classic hypothetical monopolist test for which a small but significant and non-transitory increase in price can be more easily quantified – a precise standard of degradation to be set beforehand. All that matters is that the quality degradation remains small, albeit significant and non-transitory.

181 Therefore, the Commission correctly considered the quality degradation of Android by means of the SSNDQ test.

(iv) User loyalty to OSs

– Arguments of the parties

182 In Google’s view, user loyalty was not a relevant parameter. Although, in 2015, more than four out of five users who purchased an Android device bought another Android device, that was only because of Google’s efforts to maintain the quality of the OS. In its submission, loyalty is therefore a function of the quality of Android, as illustrated by a variety of evidence that was wrongly rejected by the Commission. Furthermore, the Commission erroneously rejects the use of the Klemperer economic model, which demonstrates that Google is competing with Apple to win first-time buyers and that this competition has an impact on behaviour for all Android users.

183 According to the Commission, user loyalty was a relevant parameter for ruling out the possibility of substantial switching by users to another OS in the event of a small deterioration in the quality of Android. The Commission also rejected the relevance, in the present case, of the results obtained using the Klemperer economic model.

– Findings of the Court

184 In this regard, first, it should be observed that user loyalty to Android was not attributable, according to the Commission, solely to the quality of the OS. As the Commission indicated on the basis of the statements of OEMs cited in recitals 524 and 534 of the contested decision, the high degree of user loyalty to Android could also be accounted for by the difficulties users encountered in porting personal data or by the need to repurchase apps. In particular, as noted inter alia by one of those OEMs, users get used to the way their smart device works and do not want to relearn a new system (see recital 534(3) of the contested decision). User loyalty could not, however, be attributable to the quality of the OS alone, as the Commission stated in recital 488 of the contested decision, since many users were using Android versions that had not been updated.

185 Second, the statement of a Google executive, annexed to the application, does not call into question the importance of the parameter of users’ loyalty to their OS. That statement refers in particular to Google’s efforts to respond to the demands of users and developers of Android products and the various techniques used by Google to assess the risk of users switching to Apple. The comments made in that respect are in general terms only and, in most cases and for the most part, unsupported by specific evidence or figures that would enable their effect to be measured. As regards more particularly the efforts referred to by Google to respond to user demand, it should be noted that ensuring users’ satisfaction cannot be due solely to the risk of those users switching to another OS; rather, it reflects generally the strategy of any undertaking wishing to innovate and respond to its users’ needs. Ensuring users’ satisfaction was also a way of strengthening their loyalty to Android.

186 Third, the evidence on which the Commission relied in the contested decision did indeed reveal switching to another OS, but the extent of this was limited. Admittedly, Google maintains that the fact that, in 2015, 82% of users of Android devices remained loyal to Android when making a new purchase does not mean that it can be firmly concluded that that percentage would remain as high in the event of a deterioration in the quality of Android. By contrast, that fact did serve to indicate that, at the very least, the high degree of user loyalty towards Android made it unlikely, on the face of it, that users would switch to another OS. Similarly, without being challenged on this point by Google, the Commission indicated in recital 537 of the contested decision that, in the period between 2013 and 2015, only 16% of users of Apple mobile devices previously used an Android device. In other words, only a small proportion of users, not a substantial proportion, was likely to switch to Apple. The statements of the OEMs in recital 543 of the contested decision were along the same lines. While those OEMs recognised the possibility that users might switch to Apple, that would only be in exceptional circumstances, characterised by significant changes.

187 Moreover, if, as the Commission indicated in recital 538 of the contested decision, many users did switch to Apple at the end of 2015, it was because of the launch of a new smart mobile device with new features. In other words, the switch was not due to competition between OSs. That interpretation is confirmed by an internal Google document on which Google relies. It is apparent from the document entitled ‘Switcher Insights’ that switching by users was mainly prompted by launches of new devices, not by changes in the OSs.

188 Fourth, the use of the Klemperer economic model, referred to in recital 551 of the contested decision, did not disprove users’ loyalty to their OSs. That study actually covered first-time buyers and cannot be interpreted as meaning that users would not show any loyalty to their OS once their choice has been made.

189 Therefore, the Commission was fully entitled to rely on the loyalty of users to their OS in order to assess the scope of the competitive constraint exerted by Apple.

(v) The sensitivity of users to the quality of the OS

– Arguments of the parties

190 Google claims, as do the parties intervening in its support, that users were sensitive to any deterioration, however small, in the quality of Android. It argues that quality is the determining factor in consumer choice, and that it is not equivalent or ancillary to other factors, such as the price or design of the product concerned. This is illustrated by the wide media coverage of new OS releases and by several surveys.

191 The Commission, supported by the parties intervening alongside it, states that it did not find that users were insensitive to any variations in the quality of mobile OSs, but considered that it was unlikely that they would change their purchase behaviour and switch to a different product in response to a small deterioration in the quality of Android. Users would take into account a bundle of features, not only the OS. The various matters relied on by Google do not support the contrary.

– Findings of the Court

192 It should be stated at the outset that, contrary to Google’s assertions, the Commission did not in any way find that users did not attach any importance to the OS of smart mobile devices.

193 Thus, in line with its practice in taking decisions, the Commission indicated that the OS was an important factor in the choice of a smart mobile device. The Commission did, however, also stress that it was not the only factor taken into account by users (see recital 483 of the contested decision). It is particularly in the light of this that the Commission found, in that recital, that, in the event of a small deterioration in the quality of Android, it was ‘unlikely’ that users would change their purchase behaviour and switch from a device operating on a licensable OS to a device operating on a non-licensable OS.

194 Beyond that single finding, Google challenges two of the grounds underpinning the Commission’s assessment. First, while not disputing that a user’s decision is determined by a number of factors, Google observes that to acknowledge that there are several factors is not sufficient to rule out the possibility that a deterioration in the quality of the OS may lead users to switch to devices running another OS. The results of several surveys thus show that the quality of the OS was a crucial factor in users’ choice. Second, Google observes that, contrary to recitals 488 to 490 of the contested decision, the fact that users do not immediately switch when access to Android updates is delayed does not in any way support the argument that users would not react to a degradation of the quality of Android. Uptake of Android updates takes some time.

195 On the one hand, it must be noted that the surveys referred to by Google do not properly support its claims. The first, the document entitled ‘Switcher Insights’, drawn up by Google and referred to in recital 540 of the contested decision, indicated that switching coincided with the launch of new devices, and not with OS changes. It follows from this that users were attaching importance to a bundle of factors related to the device, and not to the OS alone. That interpretation is all the more plausible given that the survey revealed different rates of switching depending on the OEM.

196 The second, the Kantar study, referred to in recital 494 of the contested decision, indicated that 24% of users of low-end Android devices were switching each year to another OS, as against 14% of users of high-end devices. It is true that that study showed that some users of Google Android devices in the United Kingdom had switched to devices running another mobile OS. However, that switch was not due principally to the quality of the OS but to other attributes, such as the brand or model, cost, ease of use, network or carrier. This was particularly so because it was apparent from that