General Court annuls Google AdSense abuse decision

 

The General Court has ruled in an appeal by Google and its parent company Alphabet against the European Commission's decision to fine Google EUR1.49 billion for abusing its market dominance in the online search advertising intermediation market.

In 2019 the Commission found that Google had infringed Article 102 TFEU by imposing restrictive clauses in contracts with third-party websites that prevented Google's competitors from placing their search adverts (ads) on these websites.

The General Court found that the Commission had not established that the clauses could have produced a foreclosure effect in 2016, in the absence of data about their market coverage in that year.

The General Court also found that the Commission had erred in its assessment of the duration of the clauses, in particular by failing to take into consideration all the relevant circumstances of the publishers subject to the clauses.

The General Cout found that these errors undermined all the Commission's findings in relation to the foreclosure effect of the clauses and its conclusion that they constitute a single and continuous infringement of Article 102. As a result the Commission's decision must be annulled in its entirety.

The General Court’s judgment is in marked contrast to the Commission’s victory before the Court of Justice this month which upheld its Google Shopping decision.  However, the latter case can be considered to be somewhat more significant for the Commission than AdSense  in upholding the legal basis for self-preferencing as an abuse of dominance independently of the essential facilities line of case law. 

The practical significance of the AdSense decision may be more diminished as it is understood that Google has not used the relevant clauses since 2016.  However, today’s judgment may not be the end of the Commission’s interest in contractual clauses which may have foreclosure effects in online advertising markets.  In particular, the Commission now has the Digital Markets Act at its disposal to tackle potentially foreclosing practices on the part of digital gatekeepers and without the need to prove effects.

Case T‑334/19, Google LLC and Alphabet Inc v European Commission ECLI:EU:T:2024:634