Advocate General Juliane Kokott of the Court of Justice of the European Union (CJEU) has proposed setting aside the General Court’s judgment of September 2024 (Case T-334/19 – see EUROPE 13485/26), which annulled the €1.49 billion fine imposed on Google by the European Commission for abuse of a dominant position in the online advertising market, in an Opinion delivered on Thursday 12 November (Case C-826/24 P).
In March 2019, the Commission had found that three contractual clauses included between 2006 and 2016 in agreements signed by website operators with Google for its AdSense for Search online search advertising intermediation service constituted an abuse of a dominant position (see EUROPE 12218/13). Following a challenge by the US technology giant, the General Court annulled that decision, finding that the Commission had not adequately examined the relevant circumstances of the case, particularly the duration of the contractual commitment, and citing a lack of evidence of the infringements.
In her Opinion, Ms Kokott notes that case-law has established the ‘Intel criteria’ (Case C-413/14 P – see EUROPE 11856/3) for assessing and proving the existence of foreclosure effects on competitors where these result from contractual commitments imposed on customers by an undertaking in a dominant position. The duration of the contractual commitment is one of those criteria.
The Advocate General considers that the General Court imposed excessive requirements when examining the criterion of contract duration and did not sufficiently weigh the outcome of that examination against its assessment of the other 'Intel criteria'.
Ms Kokott therefore proposes referring the case back to the General Court so that it can also examine certain arguments raised by Google, particularly concerning the amount of the fine imposed. Since the Commission did not challenge the General Court’s finding that there was no evidence of foreclosure effects in 2016 in its appeal, she considers that the fine will have to be reduced.
Link to the Opinion (draft edition): https://aeur.eu/f/oe1 (Original version in French by Mathieu Bion)