Case highlights - Google AdSense & Qualcomm

𝐘𝐨𝐮 𝐰𝐢𝐧 𝐬𝐨𝐦𝐞, 𝐲𝐨𝐮 𝐥𝐨𝐬𝐞 𝐬𝐨𝐦𝐞 – 𝐭𝐡𝐞 𝐆𝐞𝐧𝐞𝐫𝐚𝐥 𝐂𝐨𝐮𝐫𝐭 & 𝐚𝐛𝐮𝐬𝐞 𝐨𝐟 𝐝𝐨𝐦𝐢𝐧𝐚𝐧𝐜𝐞

The General Court ('GC') decided on two abuse of dominance decisions of the European Commission this week: the Google AdSense and Qualcomm decisions.

𝐆𝐨𝐨𝐠𝐥𝐞 𝐀𝐝𝐒𝐞𝐧𝐬𝐞

The GC overturned the EC’s decision in the Google AdSense case, in which the EC had fined Google nearly €1.5 billion for abuse of dominance in online search advertising. The case concerned restrictive clauses Google had included in contracts with third-party websites using its AdSense for Search product (exclusivity clauses, placement- and prior consent clauses, ...). These restrictive clauses allegedly prevented Google's competitors from displaying search ads on these sites. Although the GC upheld most of the EC's findings, it found that the EC had made errors in its assessment of the duration of the infringement and the markets covered. The GC moreover found that the EC had not demonstrated that the clauses could have discouraged innovation, maintained or strengthened Google's dominant position in the relevant markets or have harmed consumers.

𝐐𝐮𝐚𝐥𝐜𝐨𝐦𝐦

The GC mainly upheld the fine imposed by the EC on Qualcomm for abusing its dominant position on the UMTS chipsets market through predatory pricing. Qualcomm was accused of selling UMTS chipsets to key customers Huawei and ZTE at below-cost prices to eliminate its main competitor, Icera.

𝐊𝐞𝐲 𝐟𝐢𝐧𝐝𝐢𝐧𝐠𝐬
✔️ Typically, the ‘as-efficient competitor test’ is used to assess if a dominant undertaking’s low prices prevent equally efficient competitors from competing. The GC stated that this specific assessment is superfluous in case it is demonstrated that the dominant undertaking’s prices were below average total cost (but above average variable cost). Indeed, an as efficient competitor will according to the GC not, in principle, be able to compete with such prices without incurring losses which are unsustainable in the long term. Such prices are therefore capable of excluding an ‘as-efficient’ competitor.
✔️ The GC reiterated that there exists no obligation on the EC to use the SSNIP-test to define “the relevant market”. Several (other) methods are available, (SSNIP-test, market studies, consumers’ point of view...) without a rigid hierarchy between those. The EC enjoys a margin of appreciation when conducting this exercise.

𝐌𝐨𝐫𝐞 𝐢𝐧𝐟𝐨?

Read the ‘Google AdSense’ judgment 🖹 

Read the ‘Qualcomm’ judgment 🖹

𝐐𝐮𝐞𝐬𝐭𝐢𝐨𝐧𝐬?

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