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Google’s ongoing legal battle over its record-setting Google Android antitrust fine faced a potential blow on Thursday as a senior adviser to the European Union’s top court recommended that the tech giant’s appeal be dismissed, backing the European Commission’s original finding.
In a non-binding opinion, Juliane Kokott, Advocate-General at the Court of Justice of the European Union (CJEU), advised the court to uphold the reduced fine of €4.1 billion ($4.98 billion) imposed on Google for abusing its dominance in the Android ecosystem to stifle competition.
The case dates back to a 2018 European Commission ruling, which found that Google had unfairly leveraged its Android mobile operating system to block rival search engines and browsers. Although a lower EU tribunal upheld the findings in 2022, it reduced the fine from €4.34 billion to €4.1 billion, leading Google to appeal to the CJEU.
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Kokott rejected Google’s claim that regulators should have assessed the company’s conduct by comparing it to a hypothetical equally efficient competitor. “It is not realistic… to compare the situation of Google with that of a hypothetical as-efficient competitor,” she said. “Google held a dominant position in several markets of the Android ecosystem and benefited from network effects.”
The adviser concluded that “the legal arguments put forward by Google are ineffective,” reinforcing the European Commission’s stance that Google had imposed illegal restrictions on Android device manufacturers between 2011 and 2018. These included requiring the pre-installation of Google Search and Chrome alongside the Google Play Store, paying partners to exclusively pre-install Google Search, and preventing the use of modified Android versions.
Google’s Android operating system, offered free to manufacturers, currently powers about 73% of the world’s smartphones, according to StatCounter. The Google Android antitrust fine is one of several penalties levied against the company, totaling €8.25 billion across three EU competition cases over the past decade.
In response, a Google spokesperson said, “Android has created more choice for everyone and supports thousands of successful businesses in Europe and around the world,” adding that the company was disappointed with the opinion, warning it could harm investment in open platforms.
While the CJEU’s judges are not bound by the opinion, they follow such recommendations in approximately 80% of cases. A final ruling is expected in the coming months.
The case is formally listed as C-738/22 P Google and Alphabet v Commission.
