Case C-738/22 P: Appeal brought on 30 November 2022 by Google LLC, Alphabet, Inc. against the judgment of the General Court (Sixth Chamber, Extended Composition) delivered on 14 September 2022 in Case T-604/18, Google and Alphabet v Commission
Date: 2022-11-30
Institutions: Court of Justice
Subjects: EU competition policy, browser, control of restrictive practices, dominant position, mobile application, mobile phone, operating system, restrictive trade practice, sanction (EU), search engine








C_2023083EN.01001101.xml










6.3.2023   


EN


Official Journal of the European Union


C 83/11






Appeal brought on 30 November 2022 by Google LLC, Alphabet, Inc. against the judgment of the General Court (Sixth Chamber, Extended Composition) delivered on 14 September 2022 in Case T-604/18, Google and Alphabet v Commission
(Case C-738/22 P)
(2023/C 83/13)
Language of the case: English

Parties


Appellants: Google LLC, Alphabet, Inc. (represented by: G. Forwood, J. Killick and N. Levy, avocats, A. Komninos, dikigoros, A. Lamadrid de Pablo, abogado, D. Gregory and H. Mostyn, Barristers, M. Pickford KC, J. Schindler, Rechtsanwalt, and P. Stuart, Barrister-at-Law)

Other parties to the proceedings: European Commission, Application Developers Alliance, Computer & Communications Industry Association, Gigaset Communications GmbH, HMD global Oy, Opera Norway AS, formerly Opera Software AS, BDZV — Bundesverband Digitalpublisher und Zeitungsverleger eV, formerly Bundesverband Deutscher Zeitungsverleger eV, Bureau européen des unions de consommateurs (BEUC), FairSearch AISBL, Qwant, Seznam.cz, a.s., Verband Deutscher Zeitschriftenverleger eV

Form of order sought

The appellants claim that the Court should:






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set aside the judgement under appeal;










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annul 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 Decision’);










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in the alternative, remand the case to the General Court;










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in the further alternative, set aside paragraph 2 of the operative part of the judgment under appeal and fix the amount of the fine imposed in Article 2 of the Decision to a significantly lower amount; and










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





Pleas in law and main arguments

In support of the appeal, the appellants rely on six pleas in law
First plea in law: the General Court erred in its review of the causal link between the Mobile Application Distribution Agreement (MADA) preinstallation conditions and their alleged exclusionary effects.






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The General Court wrongly reviewed the legality of the MADA preinstallation conditions by reference to the combined effects of impugned MADAs and legitimate Revenue Share Agreements (RSAs).










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The General Court failed to review whether users’ choices not to download rivals more frequently were attributable to abusive preinstallation rather than user preferences.










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The General Court wrongly held that evidence relating to default setting was relevant to the analysis of the MADA preinstallation conditions.










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The General Court erred in its analysis of the effects of the MADA preinstallation conditions by failing to consider the lack of competition that would exist absent those conditions.




Second plea in law: the General Court erred in upholding the Decision despite its failure to establish capability to foreclose as-efficient rivals.






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The General Court failed to review whether tying the Search app (Google Search) to Play was capable of foreclosing as-efficient rival general search services.










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The General Court failed to review whether tying Chrome browser to Play and the Search app was capable of foreclosing as-efficient rival browsers.




Third plea in law: the General Court erred by rewriting the Decision’s abuse finding on the antifragmentation obligations and attributing the alleged exclusionary effects to conduct that the Decision did not find to have been abusive.






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The General Court erred by rewriting the Decision’s characterisation of the abusive conduct relating to the anti-fragmentation obligations.










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The General Court erred by attributing the alleged exclusionary effects to conduct that the Decision did not find to be abusive.




Fourth plea in law: the General Court erred in its assessment of the anti-fragmentation obligations’ objective justifications.






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The General Court erred in failing to examine the need for the challenged anti-fragmentation obligations.










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The General Court erred in failing to consider Google’s legitimate interest in protecting the entire Android ecosystem, including in particular non-GMS devices.










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The General Court erred in upholding the Decision despite the Decision’s failure to properly assess the conditions under which Google adopted an open-source licence for Android.










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The General Court failed to properly assess the evidence in the file regarding the anti-fragmentation agreement’s necessity, given the inadequacy of a branding solution.




Fifth plea in law: the General Court erred in upholding the Decision despite striking out the portfolio RSA abuse.
Sixth plea in law: the General Court erred in exercising its unlimited jurisdiction to vary the fine.