The latest episode of “Fierce Competition” takes listeners inside a decade-long EU dispute over mobile operating systems, app pre-installation and anti-fragmentation agreements. Antitrust/competition attorneys Bill Batchelor, Antoni Terra and Jacqueline Arena discuss how the European Court of Justice’s judgment in Google Android deals with tying and what the court’s approach to counterfactual analysis and the as-efficient competitor test may mean for exclusionary conduct standards in digital markets and beyond going forward.
Voiceover (00:00):
Welcome to “Fierce Competition,” a podcast from Skadden's Global Antitrust and Competition Group that explores antitrust policy and enforcement around the world. Join our colleagues from across the continent as we discuss the latest developments and what they mean to you in an increasingly complex legal and regulatory landscape.
Jacqueline Arena (00:20):
Hi, everyone. Welcome to Skadden's podcast, “Fierce Competition,” where we cover the latest developments in competition law. My name is Jacqui Arena. I'm Asia Pacific counsel here in the Hong Kong office, and I'm delighted to be joined today by our two partners in our Brussels office, Bill Batchelor and Antoni Terra. Thanks for joining.
(00:40):
Well, where to start? It's been a big couple of weeks when it comes to Google. On today's episode, we'll be looking at the European Court of Justice's judgment in the Google Android case, a decision that really has taken place over a decade in the making, that touches on some of the thorniest issues when it comes to Article 102. We'll be looking at market definition. We'll be looking at tying and foreclosure. And in my opinion, what I think is the most interesting part of this case, the as-efficient competitor test. Just to throw an acronym in there, AEC test. We'll be running through that.
(01:17):
Before we get started, we'll run through Android, how the EC has taken issue with some of Google's conduct and agreements. And in particular, we'll be looking at pre-installation and their anti-fragmentation agreements, AFAs. So let's get started.
(01:33):
Bill, do you want to give us some background to how we got here?
Bill Batchelor (01:37):
Thanks very much, Jacqui. Hello, everybody. Right, let's go back in time. Google buys Android back in 2005, launches the Open Handset Alliance on open-source access to this mobile operating system in 2008 in pretty much a direct response to the launch of the iPhone. It's an open-source system. So they want to encourage as many hardware manufacturers — think Samsung, think HTC — to adopt this operating system as possible.
(02:09):
Why do they want that to happen? Well, one of the real problems about mobile OS, if you go really back in history — think Symbian, think Linux, which powered some of those earliest handsets — there was a fragmentation problem. Each device maker thought, "I can get a little bit of a competitive edge if I slightly tweak the operating system."
(02:30):
But if you do that, then your app developers... and remember this is before people were really thinking about, "Should we have app stores, should we have apps that could run across different devices?" App developers are going to say, "Well, this is a nightmare. I don't want to develop anything for this operating system if it's just this niche handset, right? That's hopeless. I can't deal with different flavors of operating system. I want to have one where I know my app gets written once and runs across the broadest possible spectrum of handsets."
(03:00):
Google spots this early on and says, "Right, we're not going down the Symbian route, the demise of Symbian. We are going to have something that's open source, you're free to use it, going to give this to the handset makers. But if you use it and you want to get a Play Store, so an app store as well, then you have to sign up to an anti-fragmentation agreement. You've got to make it compatible with guidelines issued by the alliance from time to time."
(03:27):
And of course, Google is all about search advertising. So what you do is you say to the handset makers, "Right, operating system is for free. App store also gets made available to you as well. But if you take our app store, then we'd also want you to install our search function because then we get some ad revenue. And we also want you to install our Chrome browser as well because into Chrome, we're going to set Google as your default search function. We're going to have ‘Search Chrome’ on all these devices. That gets us the ad revenue and that enables us to continue to fund the innovation."
(04:04):
And the evidence is, and whether or not which side you come out on this case, the evidence is that it was super successful in driving down the entry price point of smartphones. Essentially, you got all the clever software for free. It was really about the device and the competition between the handset makers. Ads were paying for a cutting edge smartphone.
(04:30):
So scroll forward five, six years. We have complainants representing rival search businesses and they say, "Well, actually, sure, you developed this new operating system. We sort of understand it has to get paid for, but you're taking all the best opportunities to install Search on a mobile platform, and mobile is just taking off. Apple has lit the firework and now it's zooming away." Specifically, we've got three issues with this.
(05:00):
First up, market definition. And what do they define their first market definition is? Well, it's not just smartphones because then you would have quite a multiplicity of competition there. You'd include Apple for a start, right? We're going to talk about operating systems. Now, Apple has its own operating system, iOS. That is captive to Apple. This, a licensable operating system for smartphones. And by 2014, 2016 as the investigation gets going, there's pretty much only one serious licensable operating system, and that's going to be Android.
(05:39):
Second up, they talk about the distribution of the key apps from Google. So remember, if you want to have our app store and you want other key Google suite apps, you have to pre-install our search function and you have to have Chrome, again, a search function be pre-installed. Now, is that a form of tying? And the great granddaddy case on tech tying is the Microsoft 2004 judgment. That's when you have the media player pre-installed on Windows PCs. But that, that is two decades ago, right? Can that be true in the days of broadband app stores where a few flicks of your finger means you've got a new app on your phone? Can that really be the standard for tying in a modern app-driven world?
(06:34):
Third issue is fragmentation. So the demise of Symbian is always held up here. If you want to make a successful operating system that expands the ability of devs to write new exciting apps, have to stop fragmentation. Otherwise, every new handset maker will say, "I'm going to have an extra flavor there." And the devs are going to say, "I'm not writing for niche handsets. I'm going to write for Apple. Sure. But these niche, I'm not going to bother with that. That's just too much time and effort to port over my app to those different devices." Could an AFA, an anti-fragmentation agreement, could that be justified as a legitimate way of preserving the integrity of the system? Or is that a way of preventing competition to Android from forked versions of Android, the different flavored Android that might be able to compete head-to-head with Google?
(07:27):
And then finally, maybe a big-picture point, listening to the history of what Google did, you're saying to yourself, surely, surely here, there must be a case for objective justification. In a non-Android world, would we just have walled garden handsets, maybe one or two players out there, rather than the lower price points driven by getting the software essentially paid for by ads and all those new opportunities for devs to reach millions, latterly billions of users across the world through a single operating system? Is that a case for objective justification? By the time we get to the ECJ though, many of the factual underpinnings of these points no longer interest us. Remember, we're in the big court in Luxembourg. We're talking points of law. We can't go back and fight facts. And as the debate moves to the ECJ, as Jacqui's just said, we get to play around with acronyms and the acronym is AEC, the as-efficient competitor. Can we say that the standard for an abuse of dominance is conduct that would marginalize, restrict competition from a company with the same efficiency, the same cost base, the same quality as the dominant company?
(08:50):
So if somebody could make as great a search service as Google, is that the standard that we should apply when we consider what abuse of dominance is? Or is it some lower, less stringent standard? And that is squarely in the crosshairs of the Court of Justice and highly timely because we have a document that's been circulating around the EC, going out for consultation called the new guidelines on Article 102, and that asks directly the question, how do we prove abuse of a dominant position? And is AEC a very fact-intensive, economics-driven standard? Should that be part of the standard? And if so, in terms of what kind of abuses?
(09:35):
I think, Jacqui, back to you.
Jacqueline Arena (09:37):
Yeah, I think that fans of the podcast will find that context incredibly helpful now to move to the crux of the case.
(09:45):
Antoni, I have my phone here. I won't hold it up, it's an iPhone, but I have my phone here. And on my phone, I have many, many apps. I have many apps available to me, obviously through the store. Are we really saying that in this case that pre-installation amounts to tying?
Antoni Terra (10:06):
Thank you, Jacqui. And thanks, Bill, for the great intro. In short, the response is yes, there is an assimilation of a tying practice with pre-installation. I would say it's a bit surprising for the reasons that we explained before. You can now download so easily apps on your phone that it seems tough to equal that to tying. As Bill was saying, we are not anymore in the times of Windows Media Player back in the '90s and beginning of the 2000s. It's very easy to download apps using the App Store and the Play Store.
(10:38):
Effectively the EC, then the GC, and also indirectly and in some paragraphs directly, the European Court of Justice says, "Pre-installation, we consider it as a tying practice." Now, Google comes back and says, "Fine, but doesn't quality of the app solve the issue?" So we compete on the merits in that sense, and you have Spotify versus Apple Music or Google Maps versus Apple Maps. Quality of the app will generate the competitive dynamics that we want in this market.
(11:14):
Going to the General Court judgment, they do not totally deal with the issue. They essentially say, when you have pre-installation, what you are doing is to foster status quo bias. And this means that customers or users will have a harder time competing with the search engines or the browsers that are pre-installed. They stop at this. There is a reference as well by the EC on the revenue sharing agreements leading to foreclosure, which is a big part of the EC decision. The point is that on the revenue sharing agreement abusive aspect, the court did not find that to be abusive. That's a big “if” compared to the European court decision. And then Google also takes that argument and says, "Look, if RSAs, to use another acronym, are not abusive because the General Court is basically saying that and the court of justice also supports that conclusion, it cannot go into the facts, but there is an acknowledgement of it, how can that practice, that pre-installation be part of the tying practice if it's not an issue?"
(12:22):
And then we move, I think, to the corollary of this pre-installation conduct, which is the European Court of Justice saying, "Yeah, we see what you mean, but in our view, Article 102 requires a holistic assessment of all the factual context that determine the conduct, even if that is not per se abusive, including therefore revenue sharing agreements."
(12:45):
So for all of us, the takeaway that we can get, which is very European Commission-friendly, is that the European Court of Justice in these judgments that we had very recently in Google Android is basically saying, you need to take a look at all the facts involved in the case, even if some of them are not perceived abusive like revenue sharing agreements. It's a bold conclusion in my view. It's a bold conclusion. We can go back to it in a little bit.
(13:14):
Just a final point on this as well, which also comes to the framework that we use to analyze this type of conduct, there was another argument by Google saying, "Okay, shouldn't we also try and analyze the counterfactual, the ‘what if’ to understand whether the conduct is abusive or not?" And the ECJ in that case extremely clear, extremely clear, and says "There is no obligation for the European Commission to look at the counterfactual analysis. You, European Commission, have discretion as to the analytical framework that you can use in that regard with respect to the counterfactual." Causality though must be established, but then the question is how we establish causality between the conduct and the effects.
(13:58):
I think at a very principled position, the European Court of Justice says that in this type of practice, when the conduct distorts from the very origin, the choice, the behavior of the user, they are saying the counterfactual is not very useful because it's impossible to actually run a proper counterfactual. The conduct is already predetermined given the pre-installation behavior. It's a little bit of mental gymnastics, I must say. This is what they conclude. And again, I think on both pre-installation tying practice and the lack of need to do counterfactual analysis, they are both conclusions that are very commission-friendly. And I would say probably very likely both will find its way in the Article 102 guidelines that Bill was mentioning before.
Bill Batchelor (14:46):
Strongly agree there. On its face, it's quite a good appeal point. I mean, it's basic legal position. The General Court, it's got a full fact and law review. The one limit to it is it cannot rewrite the decision. So Google must have thought this is a pretty good point. If suddenly RSAs are the problem in the General Court, but they were either never a problem for the EC or they were annulled by the General Court, then there's a lot of backfill reasoning going on by the GC. Now, that is something the ECJ should be stamping down on. And there's a little bit of linguistic gymnastics at the upper court to say, "Well, it is sort of in the decision if you squint. And maybe we can take that all into account."
(15:30):
I'm okay with the broader proposition. It's a holistic assessment. I think that's good and will likely be quoted in favor of DomCos in future because you didn't consider this, didn't consider that. It is a little bit of sidestepping, I think, by the ECJ because we still don't have a really clear statement.
(15:49):
Is pre-installation on its face tying? I still don't think it should be in this modern app age. Neither the GC nor the ECJ really give us the final word on that. They just say all these are the plus factors. Then we find a tying abuse. So maybe that's one way through the maze is to say, well, there's not really a final word on pre-installation. So the holistic assessment may be in your favor or it may be against you.
(16:17):
But Jacqui, we've been very Euro-centric in our view of this case. But of course the digital economy is a global economy as are these products. What else are we seeing coming out in other jurisdictions?
Jacqueline Arena (16:30):
Yeah. Actually, Bill, it won't surprise you to know that Google has been in the firing line and drawing a lot of attention with courts around the world and agencies around the world. In particular, I think that the ACCC has been at the forefront of their efforts when it comes to digital platforms and the work that they've been doing there. They've run a digital platform services inquiry from 2020 through to 2025, and they've looked at the practices of Google.
(16:58):
I wanted to walk you through two cases in particular, but before I jump into that, it's worth noting that the provisions that the ACCC and the courts in Australia have looked at are Section 45 and Section 46 when it comes to Google’s conduct. So Section 45 deals with any competitive agreements, whereas Section 46 is your misuse of market power provision. So the first case being the Epic Games case, and that was a landmark decision because it's the first case that looked at Section 46 under the new legislation in Australia. It's worth highlighting that Epic alleged that both companies, Apple and Google, engaged in anti-competitive and unconscionable conduct in the distribution of mobile apps and in-app payments. And claims were also made in that case about exclusive dealing and Section 45 anti-competitive agreements provisions. However, the court did not accept those arguments.
(17:55):
Essentially, the concerns were that Google forced Android device users to download apps through Play Store. So it's not anything new in terms of conduct, right? It's the conduct that we've been seeing alleged consistently in other jurisdictions. In exchange for access to Play Store, then Google allegedly compelled app developers to use their own payment solution. The conduct allegedly essentially blocked alternative app stores and payment processes, therefore foreclosing competition.
(18:19):
So as you can imagine, the judgment is heavy on market definition. The relevant markets there were the mobile OS licensing market, the Android mobile app distribution market, and the Android in-app payment solutions market. The decision basically seeks to restate the Australian competition law on misuse of market power and interestingly considered whether causal connection between the substantial degree of market power alleged and the conduct said to breach the substantial lessening of competition test is needed.
(18:47):
So the judge said that as part of Section 46 there, some form of causation is to be taken as necessarily implicit in the statutory text. So Google and Epic have since reached a global settlement, and in doing so, they've sought authorization for certain conducts by the ACCC and giving effect to certain terms of their settlement. Off the back of that, there was also a class action in Australia. And at the end of last year, actually Google was ordered by the federal court to pay 55 million Australian dollars in penalties for engaging in anti-competitive conduct when it reached understandings with Telstra and Optus, two of the largest MNOs in Australia, about pre-installing Google search on Android mobile phones. So in fact, Google entered into an undertaking with the ACCC acknowledging and agreeing that it will remove certain provisions in relation to pre-installation and default search engine restrictions. But it's important to note, I think, with that particular action and that undertaking that that was in relation to Section 45.
(19:54):
Turning to the U.S., well, the U.S. enforcers are always very active, as we know, and the U.S. Google Search monopoly lawsuit has transitioned into a massive showdown. In 2024, the judge in the case ruled, "The court reaches the following conclusion: Google is a monopolist in the online search market and has acted as one to maintain its monopoly," full stop. I think everybody around the world would've seen that headline. It doesn't matter if you're a lawyer or you're not. Last year, Google went to trial to determine the appropriate remedies to restore competition in online search. And the DOJ was arguing that owning Chrome lets Google control one of the major access points for search engines, and its popularity means users give it huge volumes of query data that competitors just don't have.
(20:44):
So at trial, basically, the DOJ wanted to prevent Google from striking deals for prime search engine placement, and it wanted Google to divest Chrome. It wanted Google to license all of its search data. The DOJ was particularly concerned with Google using the same strategy for Gemini. And now with the rise of ChatGPT and these AI tools and functions, there is a concern that they could be doing the same or they will do the same with Gemini.
(21:11):
So at closing arguments in the U.S. case, Google was pushing for a limited remedy that solely involves ending the exclusivity requirements of its deals. And the judge issued final judgment focusing on behavioral restrictions, but that's immediately being appealed. So everything we see there is on appeal right now and it's very much wait and see when it comes to the US.
Antoni Terra (21:34):
So from Australia and the U.S. and back to Europe, Bill, fans of this podcast and people that read ECJ judgments, I'm sure there are plenty that are listening to this podcast, know that when the court offers a clarification, it is something that you really need to pay attention to. Now, Bill, there was a famous clarification in the Intel case not long ago. Do we have another clarification as it goes to the standards and the AEC test in Google Android?
Bill Batchelor (22:03):
Absolutely. Podcast listeners will be pleased to hear we have a clarification. Last time, the court did that in Intel, as you say. It calmly rewrote 40 years of case law. This time, it's a more salient, more topical clarification. So the question is, what is anti-competitive conduct under 102? And it goes all the way back to a statement made in the first ECJ Android case. That's the 2017 appeal. And there, the court starts off by getting a little bit philosophical on us, but bear with us because it's important for what happens next.
(22:40):
The court muses to itself – this is paras 133134 – 102 doesn't just protect competition. It's up to an undertaking to succeed, even to become dominant. It's not for the law to say, "If you're desperately inefficient as a rival, you should still stay on the market." It is not the way it works. The cut and thrust of the market economy means that some companies that just aren't as efficient, they make poor management choices, they have inefficient cost structures, they might need to exit the market. And in the most quoted section, in 134, the court says, "Competition on the merits may by definition lead to the departure or marginalization of competitors that are less efficient, less attractive to consumers from the point of view of price, choice, quality or innovation."
(23:39):
You can already see where Google was going with this. So well, look at 134 of Intel. Quality is a consideration. If it so happens that everyone thinks our search services are high quality, that's why they continue to use us on mobile. If others had an equally attractive option. As Antoni says, think Spotify, Apple Music, think Google Maps, Apple Maps. They would be installed. They would get all the traffic. They would succeed. This is a pure quality-to-quality competition, and the law should not hold an umbrella over less qualitative search services.
(24:24):
So that's where Google is going. Big question, big legal nitty-gritty question for the ECJ, and we see them answer it in 261 to 283. Slight spoiler alert. They have already dealt with this in the Google Shopping case. So we kind of know what they're going to say, but during the course of the appeal, this was the big intellectual issue. Can you say quality as efficient competitors are foreclosed? Is that a necessary part of your analysis to prove a 102 violation by the EC? This is big stakes. The EC has said through its guidelines, but also in its various commentaries, it finds it really hard to do AEC. It's so factual. Heavy, heavy economics.
(25:15):
And also, one of the problems with AEC is even if they get the underlying data or evidence points even slightly wrong, then the court doesn't give them the benefit of the doubt. The court says, "Well, you just haven't proven your case. That's why we have to annul your decision." So the big, big stakes in terms of the EC's enforcement policy agenda. So 261 to 283 of the Android judgment, court says you do not have to use AEC as a form of analysis, particularly for non-price conduct cases.
(25:54):
So back in Intel, so this is the second Intel judgment, so 2024 Intel judgment, the EC had said to the court, "We don't have to do AEC for price abuses." And the court said, "Well, that's ridiculous. Normal competition is price competition. You're not telling me that we, 102, the legislator, is seeking to protect inefficient cost, ineffective rivals to let them stay in the market. In that sense and as an as-efficient competitor analysis is the flip side to saying, what is normal competition. Normal competition is competitively efficient rivals duking it out.
(26:36):
So 181 of Intel, the '24 decision from the ECJ, the court upbraids the commission for suggesting it shouldn't have to do AEC. It can just talk about normal competition and close its mind to that more factual economics-driven analysis. That is not what the court does here. It says, "No. Here, we are going to think about this differently. What we are going to say is let's think about what normal competition is." In some cases, particularly price cases, it may be clear. Yes, an AEC analysis, particularly if put forward by the defendant company, if analyzed by the EC, it may be clear that's an important part of determining what normal competition is, but it's just not that clear what normal competition is in many cases.
(27:26):
And of course, recall, an AEC analysis may simply not be suitable where we're talking about abuse in digital economy. There could be much very high entry barriers, network effects. All of that makes it very difficult for entrants to challenge incumbents. And so we shouldn't be holding them to a potentially impossible standard, like have the same quality, have the same innovation as the incumbents, in a digital economy. That may not be possible.
(27:56):
So, in essence, they follow the advocate general, Advocate General Kokott, quite hawkish on 102. Advocate General Kokott is all about, we've got to think about these competition agencies needing to prove their case. We can't make it too hard for them. Laws need to be administrable. And so they follow the advocate general. And in a crucial piece of language, at 269, they go as far as to say, "Well, in fact, certain behaviors may in principle just be a deviation from competition on the merits without there being a need for any such AEC analysis." And that is the case in particular for tying.
(28:38):
When you tie one product, then tie a product to another, the tied product, there, it seems obvious that choice is harmed and there we don't see you need to do an AEC analysis. Now, that is going to be a pretty contentious paragraph we can foresee for the future because the court seems to be coming close to saying, "Well, really, once you see tying, that's an abuse and you don't really need to think about it any further." So where do we get to then in the political debate? It looks like this is the judgment confirmation of what they said in Google Shopping that the EC wanted. They can say it's not always AEC as a requirement if there are other ways of proving this not competition on the merits.
(29:23):
So there we go. Our esoteric point, philosophy of competition law, sorted by the ECJ.
Antoni Terra (29:30):
Thanks, Bill. On AEC, I found the framework that the commission is using, and the paragraph that you cited, Bill, quite problematic, to be honest. We have two prongs in the abuse of dominance and exclusionary conduct. One is competition on the merits, and the second one is exclusionary effects. And basically, the paragraph that you cited is saying tying is not competition on the merits; you don’t need to do AEC. Therefore, it’s essentially a by-object restriction, as in, there is nothing else that can be said when you are in front of these facts, and competitors can simply not compete effectively.
I think the premise is a wrong one. One thing is the legal aspects, and we discussed a little bit about this, but also the factual premise, I think, is a wrong one because we’ve seen microchips and how it changed the competitive landscape, AI now and what it implies in terms of being able to compete. And even without technological change, how you can still challenge very important players, social platforms, to give also a relatively recent example. So I think, factually, I struggle with this conclusion and this consolidation of the two prongs of the test.
Bill Batchelor (30:39):
It's an interesting point, and you see a little bit of pendulum swing. So we always used to complain, 102 is too formalistic, it's black letter, you don't consider the economics. Then we have the economic revival after Intel 2017 and now we see a little bit of the pendulum swing back again and the ECJ and the advocate general saying, "Ah, when you get to these digital markets, it's really hard. Maybe we need to have a bit more black letter." I do hope we're not going down that route. I think it would be a retrograde step. And as you say, that paragraph will be much litigated, no doubt in future.
(31:13):
Finally, let's go back to the big picture. Surely, surely Antoni, the Court of Justice had sympathy with Google's point they needed anti-fragmentation. Surely the object lesson of Symbian made that clear.
Antoni Terra (31:28):
One would expect so, right? Then when you think about the argument, it makes total sense. Just, again, to remind everyone on the background, an additional condition for licensing the Play Store and Google search was for OEMs to enter into these anti-fragmentation agreements, AFAs to use another acronym. And basically, they committed not to sell devices running on non-compatible versions. These are the so-called Android forks.
(31:54):
Google's argument was that Android-compatible forks are far closer competitors and are unrestricted. And then they say, pointedly, there is no specific restriction in the anti-fragmentation agreements that restrains competition. That was the Google argument. This point unfortunately goes unanswered, which was the actual substantive point that we were hoping we were going to get a reply. It is more a factual point. I will give them that. And as we were saying, and we always know, the ECJ does not normally deal with this very factual aspect. So on appeal, this is not treated.
(32:32):
What is said in the judgment is a broader consideration, which is that, again, AFAs are not part of the analysis required in the context of a counterfactual analysis. You don't need to consider them. Apart from this, you may think, okay, there is another angle to AFAs, which is objective justification. It was another point that was not dealt with in the ECJ. It was found insufficient as an objective justification, these anti-fragmentation aspects by the General Court. And then on appeal, the ECJ does not touch upon this. It's paragraph 362, 367. You'll see that they don't go into this. It is not disturbed.
(33:13):
I think all in all, what we can say from this Google Android judgment is that certainly the commission is not being held at the higher standard vis-a-vis what we had before. I would say, based on our discussion with Bill and Jacqui, it's actually quite the opposite. It does seem that the evidentiary burden for the European Commission in abusive dominant cases based on this judgment seems to potentially go down a little bit.
(33:42):
Jacqui, moving also internationally again, we know that Japan has introduced legislation that is relatively similar to the European DMA. South Korea, for example, hasn't. India is looking at it. What can we expect from an international perspective in terms of digital regulation? Because again, it's very relevant to the practices we were discussing today.
Jacqueline Arena (34:04):
Yeah, great question. I mean, you just mentioned three jurisdictions, right? So I think that agencies in APAC, obviously, I think they're sympathetic to a dynamic competition argument, but they're also very nervous and apprehensive about the competition tools that they do have and that they have to be in a reactive situation. So you'll see that Japan did introduce almost like a DMA equivalent and they have also gone after Google before, except when they have taken cases up against Google, the JFTC has used their exclusionary provisions. They've not used their monopoly provisions in their legislation. There's a slight nuance or a difference there.
(34:47):
South Korea, on the flip side, yes, there are cases in South Korea also with Google, but there is no DMA equivalent.
(34:55):
India's a really interesting one. In fact, there was this competition and digital markets legislation was in bill format in 2024, but that has not been passed at all. In fact, the CCI is open to dynamic competition and innovation arguments, but they are skeptical, and so there's a balance. And so when I've spoken to local counsel about this, why didn't this legislation pass? It seems like they were interested in having these ex-ante rules similar to the DMA. There was nervousness that the bill in India actually in that format would've also impacted not only gatekeepers, but would've impacted the Indian unicorns, and the importance of the tech industry in India is important. And some think tanks came out basically saying that the GDP of the country would fall if there was this new legislation.
(35:47):
So it is interesting to see around APAC the different ways to deal with these kinds of issues and things, but it's not to say I think that many, many agencies around APAC have some form of investigation or court proceedings with Google for very similar issues. I wouldn't say there are brand new issues that are coming up. These are the same issues that you see over and over with the pre-installation, the MADAs and then the RSAs. I'm just going to go through all the acronyms now, the AFAs that keep repeating themselves.
(36:21):
So I guess it's time to wrap up because we've been talking, talking, talking, and there's so much more I feel like we could talk about, but what do you think is most important for our clients to take away from this? I thought maybe I'll go first thinking about this Google Android case. For me, I think it represents that context matters. In digital markets, it's hard to isolate all individual practices and assess its individual effects and agencies will look and consider things on the whole. So I think that the example of looking at the RSA and pulling that in, I think it's all a matter of context going forward.
(36:57):
What about you, Antoni?
Antoni Terra (36:59):
I'll add another one. This case and the completion of the commission decision was 2018, so much earlier than the DMA entered the scene. Some of this conduct will be captured by DMA and we have these specification requirements, and there is another relatively new way of dealing with this. But still, I would say that there is another world outside of the designated gatekeepers for which the judgment continues to be very relevant.
Bill Batchelor (37:30):
For me, the results are a little bit disappointing. We had all these important questions about industry practices that you see very, very common. Every platform wants to add new features, new services. What we could've had was a clear statement of this is a legal tie. This is a fair distribution practice. Unfortunately, not one that ECJ has really grappled with on this occasion. So we're left with some complex counseling problems on the compliance side.
(38:03):
And I think on the defense side, I don’t think AEC is dead. I think, as a practical matter, it is really hard for the EC to look at your thick economic submission, big data-crunching job showing that competition on the merits could actually happen here, and just wave a hand at it and say, ‘Oh, no, we don’t have to look at it.’ I think that's really hard for them to do in practice because they'd always be thinking in the back of their mind, "Is this one where we have to consider the as-efficient competitor or not?" So I think on the practical implications for defending these types of cases, we're always going to want to put in that justification, that AEC analysis.
(38:45):
Right. I think we're at time. I think our “Fierce Competition” listeners had a fantastic look down memory lane of mobile operating systems. And then all the way up again into the esoteric question of as-efficient competitors and a bit of around-the-world view of some of these digital markets cases. I think that's a wrap.
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