Google fails to overturn EU’s €4BN+ Android antitrust decision

Google’s appeal against a €4.34 billion antitrust fine handed down by the European Union four years ago, after the bloc’s competition regulator found major violations in how it operated its Android mobile OS, has not succeeded in overturning the decision: The EU’s General Court largely confirmed the Commission’s decision in a ruling issued today.

It’s a much needed win for the EU which has had a number of its antitrust decision unpicked by the courts in recent years.

Reached for comment, a Google spokesperson sent us this brief line:

“We are disappointed that the Court did not annul the decision in full. Android has created more choice for everyone, not less, and supports thousands of successful businesses in Europe and around the world.”

The size of the fine issued by the EU to Google over the Android violations in July 2018 equated to a record-breaking $5BN at the time — and it remains unsurpassed for an EU antitrust sanction.

However the General Court has revised the size of the fine downward slightly — setting the final amount imposed on Google at (a still record-breaking) €4.125BN (~$4.3BN at current currency conversion rates which have seen the dollar and euro hit near parity).

A spokesperson for the Court said: “The General Court largely confirms the Commission’s decision that Google imposed unlawful restrictions on manufacturers of Android mobile devices and mobile network operators in order to consolidate the dominant position of its search engine.

“In order better to reflect the gravity and duration of the infringement, the General Court considers it appropriate however to impose a fine of €4.125BN on Google, its reasoning differing in certain respects from that of the Commission.”

Google had sought to argue that the Commission had made an error in its definition of the relevant markets and that its assessment of the restrictions Google imposed on device makers and carriers as abusive was incorrect, among a number of pleas its lawyers put to the Court.

The Court largely rejected its arguments — but in the case of a pre-installation condition included in portfolio-based revenue share agreements (with mobile makers and carriers) the justices did it find fault with the Commission’s reasoning (and some procedural errors), thereby upholding Google’s plea that the exclusivity agreements were not abusive and annulling that part of the Commission decision.

A Court press release summarizing the ruling notes that “that partial annulment does not affect the overall validity of the [infringement] finding… in the light of the exclusionary effects arising from the other abusive practices implemented by Google during the infringement period” — but this element of the ruling explains the slight downward revision of the final fine.

In setting the final amount, the Court said it took account of “the intentional nature of the implementation of the unlawful practices and of the value of relevant sales made by Google in the last year of its full participation in the infringement”, per the press release.

Should Google wish to appeal the General Court decision to the bloc’s top court, the European Court of Justice (CJEU), it may only do so on a point of law — with a timeframe of two months and ten days to file such a petition.

It’s not clear whether the company will seek to bring a point of law appeal to the CJEU. The company told us it is reviewing the judgement before deciding on any next steps.

The Commission has also been contacted for comment.

At the time of writing competition chief Margrethe Vestager had not posted publicly on the win but her Twitter account retweeted the Court’s press announcement…

Screengrab: Natasha Lomas/TechCrunch

Consumer groups and Google rivals were quick to welcome the Court’s decision.

In a statement, Monique Goyens, the director general of BEUC, the European consumer organization, dubbed the ruling a “crucial” win for consumers:

“Today’s General Court ruling on Google’s practices concerning Android is crucial because it confirms that Europe’s consumers must enjoy meaningful choice between search engines and browsers on their phones and tablets. The Court ruling makes clear that Google cannot abuse its strong market position to unfairly exclude competitors through a complex and illegal web of restrictions and requirements for phone manufacturers. The ruling will help to ensure that consumers can benefit from a more open and innovative digital environment,” she said, adding: “Google’s restrictions harmed many millions of European consumers by depriving them of genuine choice and innovation for a decade. In practice, many European consumers had no alternative to using Google’s search engine and Google’s browser Chrome on their mobile devices. If they preferred, for example, to use more innovative and privacy-friendly services, Google’s restrictions prevented them from doing so.”

While Ecosia, the environmentally focused not-for-profit search engines that competes with Google search — and has been a vocal critic of how the tech giant responded with ‘remedies’ following the antitrust decision — also welcomed the ruling, while emphasizing how much marketshare Google still retains in the region.

“Today’s decision is a significant victory for the European Commission (EC) and is a continuation of a positive trend in Europe towards fairer competition in the online search market,” said Sophie Dembinski, its head of public policy, in a statement. “Much remains to be done to bring about true fairness in the space — Google still maintains a 96.6% market share on mobile devices in Europe, down only 0.3% since 2018 when this ruling was initially made — thanks to the EC and European Parliament’s heroic efforts with the Digital Markets Act, this ruling strengthens the EU’s overall position as a leading regulatory force, capable of keeping up with fast-moving developments in the tech sector and taking the action necessary to hold tech giants accountable — something which European consumers and businesses alike will benefit from.”

The 2018 EU Android decision

The 2018 EU competition Commission decision against Android found Google had abused its dominant position by imposing anticompetitive contractual restrictions on manufacturers of mobile devices using its Android OS and on mobile network operators, in some cases since the start of 2011.

The three types of restrictions the Commission identified and sanctioned were found in contract clauses in distribution agreements: Those which required mobile device makers to pre-install Google Search and its Chrome browser apps in order to be able to obtain a licence from Google to use its app store — the popular Play Store; certain ‘anti-fragmentation’ agreements Google imposed on device makers that wanted to pre-install Google Search and Play Store which required them to undertake not to sell devices running versions of the Android operating system not approved by Google; and those contained in ‘revenue share agreements’, under which a cut of Google’s advertising revenue provided to device makers and mobile network operators was subject to their undertaking not to pre-install a competing general search service on a predefined portfolio of devices.

The Court did not agree with the Commission’s assessment that the latter restriction was abusive, as noted above.

As well as being sanctioned with a massive fine for the breaches, Google was ordered four years ago to cease the infringements. However the bloc’s competition regulator allowed the company to configure its own remedy. That resulted in several frustrating years for search competitors after Google started offering a choice screen to Android users in the EU but quickly moved to a paid auction model for assigning slots — thereby, they argued, creating an unfairly skewed playing field which penalized smaller, less well resourced competitors and those with not-for-profit business models.

It was only after further pressure from the EU that Google agreed to drop the paid auction — switching to a choice screen that’s free for eligible participants last year. At the same time it also expanded the number of participants displayed, showing a ‘top five’ (determined by per market popularity but displayed in a randomized order — so, of course, Google is always one of these top options given its regional marketshare… ) — after which, if the user chooses to keep scrolling, they can see up to seven further options (displayed in random order). If there are more than seven additional eligible options for the market Google says the choice of which it displays is also picked randomly.

The Court ruling largely upholding the EU’s Android decision suggests these choice screens are here to stay.

More such regulation-driven interventions look to be on the way, too, as the bloc starts to enforce updated competition rules on the most powerful so-called “gatekeeper” platforms — under the incoming Digital Markets Act (DMA).

And it’s fair to say that EU lawmakers have taken their years of learnings from antitrust wrangles with tech giants like Google and baked them into shaping the DMA’s proactive operational rules which will be imposed on core platform services that fall in scope. So the legacy of Google’s multiple antitrust enforcements will be a lasting one.

Antitrust activity dialling up across Europe

The EU’s antitrust division has been very active in investigating Google over the past five+ years, landing a string of enforcements — including a $2.7BN fine related to shopping searches back in 2017 (which Google largely failed to overturn on appeal).

Google was also fined $1.7BN in a case related to AdSense, its search ad brokering business, in 2019. (Its appeal there is ongoing.)

The competition Commission also has an ongoing probe into Google’s adtech — opened in June 2021. And, on Friday, Reuters reported that the EU had widened this investigation.

The bloc is also looking into an ad deal between Google and Facebook — known as ‘Jedi Blue’.

The UK’s Competition and Markets Authority has similar probes of Google’s adtech ongoing too. As well as expressed concerns about the mobile duopoly — one half of which is Google Android.

While Germany’s antitrust scrutiny of the company — which touches a number of fronts — stepped up a gear at the start of this year when its regulator determined the tech giant falls under a special abuse controls regime brought in under a major reform of digital competition rules that’s aimed at tech giants’ market muscle.

France has also been aggressive in probing a variety of competition concerns around Google. And this summer the company dropped an appeal against an antitrust fine of well over half a billion dollars that France’s competition watchdog hit it with in July 2021 — related to breaches in how it negotiated terms with news publishers over copyright licensing.

All this regulatory activity is also leading to an uptick in antitrust litigation aimed at tech giants.

Google fails to overturn EU’s €4BN+ Android antitrust decision by Natasha Lomas originally published on TechCrunch

Google’s adtech practices targeted in UK, EU antitrust damages suits

More antitrust litigation targeting Big (ad)Tech: Google is being sued in the UK and the Netherlands where two suits have been announced today seeking damages on behalf of publishers who claim they have been harmed by anti-competitive adtech practices.

Per Reuters, publishers are seeking up to €25 billion in damages from Google for lost ad revenues via the litigation.

Google’s adtech stack — and certain other ad-related practices  — are currently under investigation by both EU and UK competition authorities. However, last year France’s antitrust watchdog found the tech giant had abused a dominant position for ad servers for website publishers and mobile apps — fining Google up to €220 million for a variety of self-preferencing abuses; and extracting a series of interoperability commitments. The French regulator dubbed the case a world first in probing its complex algorithmic ad auctions.

The tech giant did not dispute the facts of the French case — and that appears to have given succour to the litigants.

Law firm, Geradin Partners, which acted for complainants in the French Competition Authority case, is leading the UK and EU damages actions. The French Competition Authority found Google had abused its dominant position by engaging in various forms of self-preferencing in breach of Article 102 TFEU,” it noted in a press release. “Specifically, Google used its publisher ad servers by favouring its own ad exchange and had used its ad exchange to favour its publisher ad server. Both practices had been in place since 2014. Google’s anticompetitive conduct was found to have caused harm to publishers. Google did not contest the findings.”

Commenting in a statement, Damien Geradin of Geradin Partners, added: “Publishers, including local and national news media who play a vital role in our society, have long been harmed by Google’s anticompetitive conduct. It is time that Google owns up to its responsibilities and pays back the damages it has caused to this important industry. That is why today we are announcing these actions across two jurisdictions to obtain compensation for EU and UK publishers.”

Both legal actions are being funded by London-based litigation funder, Harbour — which touts a 76% “success rate” on its website.

The Dutch action is a collective damages claim representing EU publishers. While, in the UK, the litigants intend to bring an opt-out claim to the Competition Appeal Tribunal, which the law firm said will focus on recovering compensation for lost revenue from the sale of advertising space on the websites of class members. (The parallel claims likely reflect differences in legal regimes for bringing competition class-action style claims inside and outside the EU.) 

Reached for a response to the litigation, a Google spokesperson attached the suits as “speculative and opportunistic”.

Here’s its statement:

“Google works constructively with publishers across Europe — our advertising tools, and those of our many adtech competitors, help millions of websites and apps fund their content, and enable businesses of all sizes to effectively reach new customers. These services adapt and evolve in partnership with those same publishers. This lawsuit is speculative and opportunistic. When we receive the complaint, we’ll fight it vigorously.”

Google has already faced a hefty bill related to its dealings with news publishers in France — following a €500BN fine by the competition regulator for breaching an earlier order to fairly negotiate copyright fees for use of snippets of publishers’ content (following a 2019 reform of EU digital copyright law).

But successful antitrust litigation could substantially crank up Google’s costs. And it’s worth noting that, in recent years, an EU directive was adopted that’s intended to remove obstacles to consumers and businesses bringing antitrust damages actions across the bloc.

Separately, Google is being sued in Europe by price comparison service, PriceRunner — which is seeking a few billions in damages after accusing it of breaching a 2017 EU antitrust order related to its product price comparison service.

While — since 2019 — Google’s adtech has been under formal investigation by its lead privacy regulator in the bloc, Ireland’s Data Protection Commission, following a series of complaints targeting the behavioral ad industry’s abusive surveillance of web users.

Returning to antitrust litigation, in another recent opt-out competition class claim targeting big adtech, Facebook’s parent entity, Meta, is currently being sued for damages on behalf of UK users. In that case the litigant alleges the social networking giant imposed unfair terms, prices and/or other trading conditions on Facebook users — including by requiring users to hand over their personal data as a condition of access to the Facebook social network, and failing to share with users the profits it makes from such data — linking a loss of privacy to a claim of anti-competitive conduct.

A certification hearing is due to take place at the end of January which will determine whether or not the antitrust case against Meta proceeds.

Google’s adtech practices targeted in UK, EU antitrust damages suits by Natasha Lomas originally published on TechCrunch

EU urged to reject ‘weak’ Amazon offer to end antitrust probe

A series of commitments offered by Amazon in the EU, where regulators are investigating competition concerns linked to its use of third party data, has been dubbed “weak, vague and full of loopholes” in a critical submission signed by a dozen civil society and digital rights groups, non-governmental organizations and trade unions.

The submission, which was made public today, goes on to urge the bloc’s regulators to reject Amazon’s proposals and press on with a full antitrust investigation of the two-sided marketplace. “We urge the European Commission to reject Amazon’s commitments outright and in full, and instead continue vigorously to pursue its antitrust cases against Amazon, imposing remedies and penalties (on the Commission’s own terms) as necessary,” the 12 signatories write.

The full list of signatories are as follows: Austrian Federal Chamber of Labour (AK Europa); Balanced Economy Project; Digitale Gesellschaft e.V.; European Public Services Union (EPSU); Foxglove; Goliathwatch; FairVote UK; LobbyControl; Simply Secure; Centre for Research on Multinational Corporations (SOMO); UNI Europa; and WEED (Weltwirtschaft, Ökologie & Entwicklung e.V.).

Their submission argues that much of what Amazon has proposed to try to settle the EU’s investigation into its handling of merchant data will be required under an incoming pan-EU law anyway — called the Digital Markets Act (DMA) — that’s expected to start applying from spring 2023, bringing in major penalties for non-compliance.

The incoming regulation reforms the bloc’s approach to competition enforcement around Big Tech — introducing up-front requirements for so-called “gatekeepers”, whose core platform services fall in-scope, in oft-complained-about areas like self-preferencing and data use.

But the signatories warn there’s a risk of a confusing “dual-track” of regulatory requirements opening up around the ecommerce giant if the Commission decides to accept Amazon’s commitments as it could soon be subject to the DMA. They also point out that “most” of what Amazon is offering will be required under the DMA anyway (such as a ban on self-preferencing; or restrictions on not using non-public data generated by business users) — asserting that Amazon is offering less extensive obligations, hence there’s a risk of one undermining the other.

“[T]he DMA’s obligations are more extensive than those offered by Amazon, and will be enforced by the Commission rather than by the company itself. From the point of view of both efficacy and rule of law, it is not appropriate for a private company to make voluntary commitments parallel to those that will imminently be imposed on it by European law,” the signatories argue, implying that, if accepted as is, the commitments could become a vehicle for Amazon to evade the full force of beefed up EU antitrust law (and the full sweep of associated obligations on its business).

“It should be made very clear that any commitments by Amazon cannot be used to prevent enforcement by the Commission based on the DMA,” they warn the Commission. “Moreover, accepting both Amazon’s commitments while simultaneously imposing obligations on it via the DMA would create a dual-track regulatory regime that would be confusing, inefficient and vulnerable to manipulation by Amazon.”

The signatories are also critical that Amazon is offering to apply the suggested commitments for only five years, arguing that such a short time — or, indeed, “any time horizon” on limits to its market power — is “unjustifiable”.

Their submission also calls for EU regulators to enforce “structural” remedies that put hard limits on Amazon’s market power — such as by legally separating its marketplace business from its retail and logistics operations — and to limit its ability to continue to build out market power through acquisitions of smaller entities. 

Additionally, the submission flags what it describes as “Amazon’s systematic labour rights violations” — arguing that the company’s”unfair business practices” extend to issues linked to compliance with working time laws, statutory and collectively agreed minimum wages and employee data protection throughout Europe. We therefore call on the Commission to also examine this aspect of competition law, which has so far often been at the expense of local businesses and workers,” they add. 

Amazon was contacted for a response to the critical submission but a spokesperson just reiterated an earlier statement in which the company took the opportunity to take a pot-shot at the DMA — writing:

“While we have serious concerns about the Digital Markets Act unfairly targeting Amazon and a few other U.S. companies, and disagree with several conclusions the European Commission made, we have engaged constructively with the Commission to address their concerns and preserve our ability to serve European customers and the more than 185,000 European small and medium-sized businesses selling through our stores. No company cares more about small businesses or has done more to support them over the past two decades than Amazon.”

In additional background remarks the tech giant flagged what it claimed has been a heavy investment by its business in Europe over the past two decades+, including directing an unspecified amount of money to the 900,000+ European independent sellers, authors, content creators, delivery providers, developers and IT solution providers it said work with across the region.

In 2020, Amazon also said that European SMEs selling on its marketplace recorded over €12.5BN in export sales.

Conflicts of interest

The EU’s probe of Amazon’s use of third party data has been public since 2019. The Commission published a first set of antitrust charges back in November 2020 — saying at the time that its preliminary conclusion was the ecommerce behemoth had abused its market position in France and Germany, its biggest markets in the EU, via its use of big data to “illegally distort” competition into online retail markets.

Last fall, news reports suggested Amazon was seeking to settle the EU investigation by offering concessions on how it operates. Then, earlier this summer, details of Amazon’s proposal were confirmed by the EU which published a summary — saying the company was offering concessions attached to how it uses third party seller data; around its programming of the influential Buy Box; and for Prime, its membership program (which links to Amazon’s own logistics business such as via preferential delivery options). 

Specifically, on marketplace seller data, Amazon offered to refrain from using non-public data relating to, or derived from, the activities of independent sellers on its marketplace, for its retail business that competes with those sellers. Re: the Buy Box, it proposed applying equal treatment to all sellers when ranking offers to make the selection for the Buy Box, as well as offering to display a second competing option to the winner in certain circumstances.

While, on Prime — which emerged as a second strand of the EU’s probe — Amazon offered to set non-discriminatory conditions and criteria for the qualification of marketplace sellers and offers to Prime; to let Prime sellers freely choose any carrier for logistics and delivery services (and negotiate terms directly); as well as offering not to use any information obtained through Prime about the terms and performance of third-party carriers, for its own (competing) logistics services.

However the 12 groups critical of Amazon’s proposals in the aforementioned submission argue that what it’s offered both does “not materially improve” the position of third-party sellers vis-à-vis the ecommerce giant and risks muddying the water around the application of the DMA.

“The commitments do not address the root causes of Amazon’s abuse of its dominant position, which are i) its sheer size, ii) its power over sellers and consumers iii) its control of a whole ecosystem of interrelated services generating fundamental conflicts of interest,” they argue.

“Commitments not to abuse market power generated by these conflicts are a pale shadow of what is needed: Elimination of those conflicts. In our view, the only way ultimately to eliminate these conflicts is structural legal remedies, such as legally separating Amazon’s marketplace from its retail and logistics operations.”

We reached out to the Commission with questions on the general concern raised by the signatories that there could be a risk of parallel requirements being introduced — given the incoming DMA — but at press time it had not responded to questions.

As regards structural remedies, the EU’s competition chief, Margrethe Vestager, has frequently signalled a reluctance to go so far in her big tech-related interventions — expressing a preference for alternatives such as putting controls around data use — so calls to break up Big Tech are likely to fall on deaf ears. However the EU’s digital strategy EVP and competition chief will certainly be keen for the DMA to arrive as both the shiniest and sharpest possible instrument in the bloc’s updated toolbox so warnings about muddying the legal waters may get more attention. 

Nonetheless, it remains to be seen which way the Commission will jump on the Amazon probe — which was opened prior to the draft DMA being presented.

The EU was soliciting and accepting feedback on Amazon’s suggested commitments up until last Friday. Its decision-making process continues — but now it will be assessing submissions and, ultimately, making a judgement call on whether Amazon’s offer is good enough to close out the investigation — or whether to ask for (or enforce) more substantial remedies on the ecommerce giant. 

Asked for a view on whether the Commission will be minded to accept Amazon’s commitments, a policy advisor who has been working with the NGOs for this submission flagged the public consultation process as a sign that EU lawmakers are looking at what Amazon has suggested seriously. Although he also argued they will likely be applying a sceptical eye — not least given some of the issues being raised in submissions such as this one but also as he suggested the Commission will be wary about preempting Amazon’s obligations under the DMA (which he said “touch on similar practices but are more comprehensive and now have a foundation in EU law”).

“If I had to make an educated guess, I think the Commission will eventually accept a set of commitments from Amazon but only after significant revisions based on DG COMP’s feedback,” Global Counsel’s Max von Thun added. “I would also expect them to make it explicit that Amazon — if designated as a gatekeeper [under the DMA] — will still have to demonstrate separately how they are complying with the DMA’s obligations, and perhaps even specify that the commitments will be superseded by the DMA obligations once they take effect in early 2024.”

EU urged to reject ‘weak’ Amazon offer to end antitrust probe by Natasha Lomas originally published on TechCrunch

Oracle’s ‘surveillance machine’ targeted in US privacy class action

Enterprise giant Oracle is facing a fresh privacy class action claim in the US.

The suit, which was filed Friday as a 66-page complaint in the Northern District of California, alleges the tech giant’s “worldwide surveillance machine” has amassed detailed dossiers on some five billion people, accusing the company and its adtech and advertising subsidiaries of violating the privacy of the majority of the people on Earth.

The suit has three class representatives: Dr Johnny Ryan, senior fellow of the Irish Council for Civil Liberties (ICCL); Michael Katz-Lacabe, director of research at The Center for Human Rights and Privacy; and Dr Jennifer Golbeck, a professor of computer science at the University of Maryland — who say they are “acting on behalf of worldwide Internet users who have been subject to Oracle’s privacy violations”.

The litigants are represented by the San Francisco-headquartered law firm, Lieff Cabraser, which they note has run significant privacy cases against Big Tech.

The key point here is there is no comprehensive federal privacy law in the U.S. — so the litigation is certainly facing a hostile environment to make a privacy case — hence the complaint references multiple federal, constitutional, tort and state laws, alleging violations of the Federal Electronic Communications Privacy Act, the Constitution of the State of California, the California Invasion of Privacy Act, as well as competition law, and the common law.

It remains to be seen whether this “patchwork” approach to a tricky legal environment will prevail — for an expert snap analysis of the complaint and some key challenges this whole thread is highly recommended. But the substance of the complaint hinges on allegations that Oracle collects vast amounts of data from unwitting Internet users, i.e. without their consent, and uses this surveillance intelligence to profile individuals, further enriching profiles via its data marketplace and threatening people’s privacy on a vast scale — including, per the allegations, by the use of proxies for sensitive data to circumvent privacy controls.

Commenting on the suit in a statement, Ryan said: “Oracle has violated the privacy of billions of people across the globe. This is a Fortune 500 company on a dangerous mission to track where every person in the world goes, and what they do. We are taking this action to stop Oracle’s surveillance machine.”

A spokesman for Oracle declined to comment on the litigation.

A couple of years ago the firm was facing class action suits, along with Salesforce, via a legal challenge to its tracking in Europe — which intended to focus on the legality of their consent to track web users, citing the region’s (contrastingly) comprehensive data protection/privacy laws.

However the European legal challenges, which were filed in the Netherlands and the UK, have faced tough going — with a Dutch court ruling the suit inadmissible last year, because (per reports) it judged that the not-for-profit pursing the class action had failed to demonstrate it represented the alleged injured parties and so did not have legal standing. (Although earlier this year the organization behind the suit, the Privacy Collective, said it would appeal.)

The UK branch of the legal action, meanwhile, was stayed pending the outcome of an earlier class-action style privacy suit against Google — but last year the UK Supreme Court sided with the tech giant, blocking that representative action and dealing a blow to the prospects of other similar suits.

In the Lloyd v Google case, the court found that damage/loss must be suffered in order to claim compensation — and therefore that the need to prove damage/loss on an individual basis cannot be skipped — derailing the litigation’s push for a uniform “loss of control” of personal data for each member of the claimed representative class to stand in its stead.

The ruling was considered a hammer blow to opt-out class actions for privacy claims at the time — clearly throwing another spanner in the works of the Oracle-Salesforce class action’s ability to proceed in the UK.

The challenges of litigating privacy class actions in Europe likely explain the push by digital rights experts to test similar claims in the US.

Amazon faces more antitrust scrutiny in UK and Germany

More antitrust scrutiny for Amazon in Europe: The U.K.’s antitrust watchdog has opened an investigation into Amazon’s marketplace on the same day Germany’s regulator has confirmed it can apply special abuse controls to the e-commerce giant.

The U.K.’s Competition and Markets Authority (CMA) said the probe will consider — firstly — whether Amazon has a dominant position in the market and, if so, whether it is abusing that position and distorting competition by giving an unfair advantage to its own retail business or sellers that use its services, compared to other third-party sellers on the Amazon U.K. Marketplace.

The move follows similar (ongoing since 2018) scrutiny of the e-commece giant by the European Union — which the U.K. officially ceased being a member of at the start of last year. Hence the CMA stepping in with its own investigation now the country has left the bloc, as it is no longer bound to avoid duplicating Commission-led probes.

The U.K. regulator said the investigation will focus on three main areas — namely:

  • How Amazon collects and uses third-party seller data — including whether this gives it an unfair advantage in relation to business decisions made by its retail arm.
  • How Amazon sets criteria for allocation of suppliers to be the preferred/first choice in the ‘Buy Box’ — aka a prominent feature displayed on product pages which provides customers with one-click options to ‘Buy Now’ or ‘Add to Basket’ in relation to items from a specific seller.
  • How Amazon sets the eligibility criteria for selling under the Prime label loyalty program which offers members certain benefits, such as free and fast delivery.

Commenting on the action in a statement, Sarah Cardell, a general counsel — and currently interim CEO — at the CMA, said:

Millions of people across the U.K. rely on Amazon’s services for fast delivery of all types of products at the click of a button. This is an important area so it’s right that we carefully investigate whether Amazon is using third-party data to give an unfair boost to its own retail business and whether it favours sellers who use its logistics and delivery services – both of which could weaken competition.

Thousands of U.K. businesses use Amazon to sell their products and it is important they are able to operate in a competitive market. Any loss of competition is a loss to consumers and could lead to them paying more for products, being offered lower quality items or having less choice.

A formal investigation will allow us to consider this matter properly.

Amazon was contacted for comment on the U.K. probe.

Today it also emerged that the EU investigation could be on the cusp of being resolved, per a report in the FT — which suggests Amazon will offer to share more data with rivals and give buyers a wider choice of products in order to settle the EU’s action.

Earlier this month, Reuters also reported that Amazon was offering to share data and boost the visibility of rivals’ products in a bid to avoid an EU antitrust fine.

Although there’s been no official word from the Commission on a resolution, as yet.

Any deal offered by Amazon to EU regulators may not affect the U.K. probe, however, since the country is now outside the EU’s competition regime.

The CMA’s press release also makes a point of noting that the Commission probe into “similar concerns” does not cover “ongoing issues affecting the U.K. now that it has left the European Union.” Although it goes on to add that it will “seek to liaise” with EU counterparts as its own investigation progresses.

Amazon has faced other antitrust action in the region — previously agreeing to make tweaks to the terms it offers sellers following an intervention by Germany’s Federal Cartel Office (FCO).

Since last year the FCO has also been assessing whether Amazon meets the threshold for special abuse controls, following an update to domestic competition law that’s intended to target digital giants’ market power. And in a further development today, the FCO has confirmed that Amazon does meet the threshold for the ex ante powers to apply, concluding the tech giant is dominant in regard to its marketplace services for third-party sellers.

In a statement, Andreas Mundt, FCO president, said the determination means it will be able to “intervene and prohibit potential anticompetitive practices of Amazon more effectively” — and engage in “parallel traditional oversight over abuse of dominance.”

This means Amazon will be facing more and faster antitrust interventions in the German market — which is ahead of the regional curve on updating digital competition rules.

Existing FCO proceedings against the e-commerce giant include a probe looking at the extent to which it is influencing the pricing of sellers on Amazon Marketplace by means of price control mechanisms and algorithms; and a second examining agreements between Amazon and brand manufacturers to check whether exclusions placed on third-party sellers on Amazon Marketplace constitute a violation of competition rules.

Germany remains an EU member but the FCO’s Amazon investigations are a little different vs. the EU’s merchant seller data probe.

Update: Amazon has now sent this statement — expressing disagreement with the FCO’s designation; and suggesting it might appeal:

We disagree with the FCO’s findings, are analyzing the decision, and will consider our options including an appeal. Amazon is mainly a retailer, and the overall share of e-commerce across all German retail sales was estimated at just 14.7 per cent in 2021 by Handelsverband Deutschland. We compete with many established, successful German and international companies — and the same applies to our businesses in other sectors. In Germany, we invested 36.5 billion euros from 2010 to 2020, we work closely with the local research community, we now employ over 30,000 people, and we will create another 6,000 new jobs this year. Customers, partners, and the tens of thousands of businesses in Germany that sell on our store trust in and benefit from our ability to innovate. Selling partners now represent more than 60 percent of all units sold in the Amazon store, and small and medium-sized businesses selling through Amazon employ over 150,000 employees in Germany.

Delivery Hero and Glovo targeted for EU antitrust inspection

Delivery Hero and Glovo have been targeted for antitrust inspections in the European Union.

The European Commission announced today that it has carried out unannounced inspections of a number of online food, grocery and consumer goods delivery businesses in two Member States — citing concerns over potential breaches of EU competition laws against forming cartels and other restrictive business practices.

“The Commission has concerns that the companies concerned may have violated Article 101 of the Treaty on the Functioning of the European Union, which prohibits cartels and restrictive business practices,” it writes in a press release.

“The investigation concerns an alleged agreement or concerted practice to share national markets for the online ordering and delivery of food, groceries and other consumer goods in the European Union,” it added.

The Commission did not name any of the companies that have been inspected — and declined to provide more details when asked — but Reuters reported that Berlin-based Delivery Hero was one of the inspected companies.

Delivery Hero confirmed this to us when reached for comment, sending this statement:

“Delivery Hero confirms that the European Commission conducted an inspection at its offices in Berlin. The fact that the Commission carries out such an inspection does not mean that the Commission has concluded that there has been an actual infringement of competition law nor does it prejudge the outcome of the investigation itself. Delivery Hero is committed to cooperating fully with the Commission.”

We have also confirmed that Barcelona-based Glovo, which — since the end of 2021 has been majority owned by Delivery Hero — was also approached by the Commission.

“As part of its investigation, we can confirm that the European Commission has approached Glovo,” a Glovo spokewoman told us. “We are confident that Glovo meets all antitrust and compliance requirements, as defined by the law and the initial investigation does not prejudge the outcome of the investigation itself. We are always collaborating with authorities, and are actively cooperating with the European Commission authorities to aid their investigation.”

The Commission PR about the raids specifies that companies in two Member States were inspected — presumably a reference to Germany and Spain, given those are the home markets of Delivery Hero and Glovo respectively.

We reached out to a number of other delivery players in those markets to ask if they were also paid a visit.

At the time of writing, Berlin-based Gorillas had confirmed it was not targeted. “Regarding this issue, we can confirm that Gorillas has not been targeted by the raids organized by the European Commission,” a spokesperson told us.

We also understand that UberEats was not involved in the Commission action.

Berlin-based Flink also told us it was not raided nor sent any requests related to the investigation.

Tough market conditions

The timing of the inspection is interesting given that the on-demand delivery space is facing particularly challenging operational conditions.

The global economic downturn has made it harder for startups to raise, generally, but the high losses/burn rates of some of these delivery/q-commerce platforms — which tend to prioritize growth over profitability in a bid to dominate markets and squeeze out competition over the longer run — make them look particularly vulnerable to the end of fundraising ‘good times’.

So while quick commerce exploded rapidly in the wake of a pandemic-triggered surge in demand for app-based shopping and delivery, there’s likely been a similarly rapid cooling from investors on the sector in recent months — as rising interest rates and soaring inflation cause funds to reconsider pouring yet more capital into a scramble for convenience that may turn out to be more ‘flash in the pan’ than paradigm shopping shift.

Delivery Hero and Glovo are particularly interesting cases here, too — given that Glovo had already abandoned its solo run and thrown its lot in with the German rival. (The acquisition was announced on December 31 after 11 p.m. CET — which doesn’t exactly suggest they were keen to trumpet the news.)

Delivery Hero’s shares, meanwhile, have taken a battering in recent months — plunging almost 60% in Q1, per Bloomberg, whose April news report quoted HSBC analyst, Andrew Porteous, writing: “The Glovo deal continues to baffle us” — and pointing out that Delivery Hero expected Glovo to post a loss of €330M in 2022 which suggests the acquisition has beefed up its operational challenges, raising questions about where’s the upside?

As well as lots of consolidation, the on-demand delivery space has been characterized by rapid revisions to operational footprints — with players typically firing up ops across multiple markets as they scramble for scale, before often, equally quickly pulling out again if they judge the level of expenditure has got too high vs potential gain.

Startups in the space often talk about wanting to be either the number one or two player in a given market — which has led to a patchwork of brands operating piecemeal across Europe, rather than uniform competition between all operators. But in such a high cash burn environment dominating the market is not really a ‘nice to have’ — rather it’s a necessity. And the relative footprints of on-demand delivery players can, at times, appear like coordinated agreements to carve up different markets — even if it’s the burn rate ultimately dictating where they each operate. 

Given all these pressures and the wider downturn turning the screw on the sector, the Commission sniffing around Delivery Hero and Glovo now looks interesting.

Although the EU is emphasizing that the inspections it has carried out so far are “a preliminary step into suspected anticompetitive practices” — and the two companies are not facing any formal objections at this stage.

“The fact that the Commission carries out such inspections does not mean that the companies are guilty of anti-competitive behaviour nor does it prejudge the outcome of the investigation itself,” the Commission adds.

There is no deadline for the EU to complete the inquiries. And it remains to be seen whether any formal charges get delivered.

Its PR points out that the Commission offers a leniency program — under which it may offer companies that have been involved in a secret cartel immunity from fines or significant reductions in fines in return for reporting the conduct and cooperating with an investigation. While individuals are also encouraged to report cartel or other anti-competitive behaviour on an anonymous basis via its whistleblower tool.

Google drops appeal against €500M antitrust news licensing fine

Google has quietly dropped its appeal in France against an antitrust fine of half a billion euros levied against it last summer for major breaches in how it negotiated to remunerate local news publishers for displaying copyrighted content.

A major reform to European Union rules around digital copyright which was agreed back in 2019 — and transposed into French law soon afterwards — created a new right covering reuse of snippets of news content.

Google responded to the change of law in France by first seeking to evade payment by stopping displaying such snippets in products like its news aggregator. But the country’s antitrust watchdog stepped in in 2020 — suspecting that Google’s unilateral act constituted an abuse of market power and ordering it to pay publishers for the content reuse.

Google then sought to cut deals with French publishers but this quickly led to complaints over how it was negotiating — such as by withholding key info and seeking to press publishers into bundling neighbouring rights payments into licensing terms for a News Showcase product Google had devised — so Google’s actions attracted another intervention by the regulator; and, in July 2021, a $592M penalty for abusive negotiation practices.

The tech giant called the fine “disproportionate” when it filed its appeal against the Autorité de la Concurrence‘s sanction last fall.

However now it’s agreed to withdrawn the appeal. The development comes as the French competition regulator said today that it’s accepting behavioral pledges first offered by Google back in December as it sought to settle the antitrust action — which suggests that Google dropping the appeal forms a part of the full settlement that’s been announced today.

“Google undertakes to withdraw its appeal against the decision not to comply with the injunctions. The fine of 500 million euros imposed by the Autorité on July 12, 2021 therefore becomes final,” L’Autorité wrote in a press release [translated from French with machine translation].

In its own blog post about the settlement, Google doesn’t make mention of withdrawing the appeal — instead, it spins its commitments being accepted as drawing a line under a problematic chapter for its business.

“Today, the Autorité de la Concurrence accepted our commitments, which frame the way in which these negotiations [over reuse of news publishers’ content] will be conducted for the coming years,” wrote Sébastien Missoffe, managing director and VP, Google France. “An independent trustee will be appointed and will be responsible for monitoring the proper execution of the commitments. These commitments illustrate our desire to move forward and to remunerate publishers and press agencies for their neighboring rights.”

What exactly has Google agreed to? The commitments that have been accepted by the French regulator now are a beefed up version of the ones Google initially offered at the end of last year.

The regulator said Google has committed to undertake good faith negotiations with news publishers who request talks over remuneration for their content under the law — applying “transparent, objective and non-discriminatory criteria”.

This includes agreeing to pass key information to publishers in a timely fashion (e.g. the number of impressions and click-through rate of their protected content on Google Search, Google News and Google Discover; plus data relating to Google’s revenues in France); and agreeing to pass to an independent agent relevant additional info that publishers may request (a structure which looks intended to workaround concerns of Google’s confidential info being too directly shared).

The framework commits the tech giant to make a compensation proposal within three months of the start of negotiations with a publisher.

If there is disagreement the framework allows for an arbitration tribunal to determine the amount Google must pay.

Google has explicitly agreed to keep separate terms with publishers to license legally protected content — so not to seek to bundle this type of content licensing into terms of any other Google media product (such as its News Showcase vehicle), as it previously attempted.

L’Autorité also notes that Google has agreed to extend the scope of its commitments to cover publishers it had previously sought to exclude, including press agencies.

Google’s blog post talks up the number of deals it has inked with French publishers in the interim — with the tech giant writing that it has “agreements with more than 150 press publications in France”.

However, as the regulator points out, the terms of the negotiation framework it’s agreed to mean publishers are not bound to any contracts they previously inked with Google — and are instead free to renegotiate terms with the benefit of the new framework in place if they so wish (though existing contracts will apply until replaced by any new deals).

Google has also undertaken not to take what would amount to retaliatory measures against publishers — committing that negotiations do not affect the indexing, classification or presentation of protected content; and do not affect the other economic relations that may exist between Google and press publishers and press agencies, per L’Autorité.

The commitments are now made compulsory for a period of five years — with the possibility of being renewed for a further five years, under the discretion of the regulator.

An approved independent agent will monitor Google’s application and oversee its negotiations with publishers. This (as yet unnamed) agent will have an active role in settling potential disputes by issuing opinions and proposals to the L’Autorité — which Google has agreed to be bound by (although publishers remain free to pursue alternative legal means to settle disputes if they wish).

Commenting in a statement, Benoît Cœuré, president of L’Autorité, said the regulator welcomes — “on the merits” — the commitments made by Google following its intervention and sanction, adding: 

“The combination of these different means of action now makes it possible to create an environment offering greater stability and guarantees of fairness for publishers and press agencies. For the first time in Europe, the commitments made by Google provide a dynamic framework for negotiation and sharing of the information necessary for a transparent assessment of the remuneration of direct and indirect related rights. This framework will improve evaluation methods and facilitate the transmission by Google of the information necessary for them.”

The news reuse issue doesn’t only apply to Google’s French operations; the EU copyright reform will apply across the bloc once all Member States have transposed the regulation into national law — hence the framework agreed in France is likely to form a template for other negotiations with regional news publishers. (Per Google’s blog, the company has inked agreements with over 650 publications so far — albeit, it may face having to redo terms based on what it’s agreed to in France if publishers elsewhere decide they want a better deal.)

Beyond the EU, Google’s licensing negotiations with publishers in Australian are also regulated after the country passed its own news code bargaining law early last year.

While the UK also appears to be considering similar legislation to support publishers as it works on a reboot of domestic competition rules wrapping tech giants. Although there’s no near term prospect of a change after the government delayed bringing legislation forward.

However the UK’s competition watchdog has said it will make full use of its existing powers in the meanwhile — which, in recent years, has included obtaining a set of commitments from Google over how it will remove support for tracking cookies in Chrome and install alternative adtech.

Germany’s competition watchdog, meanwhile, has been investigating Google’s News Showcase licensing product since last summer — following complaints over a planned integration into Google’s general search function look likely to be self-preferencing and/or unfairly disadvantage competing services offered by third parties.

That German FCO probe remains ongoing. But in January Google offered to limit how the News Showcase ‘story panels’ would appear in search results in the market — shortly after the country’s competition watchdog determined it can apply special abuse controls to Google.

The short story of all these antitrust interventions is that Big Tech’s T&Cs are gradually being reshaped by forces outside their control. And — notably — it’s international regulators doing the running at the vanguard of this enforced reboot.

UK market abuse suit seeks up to $935M from Apple for ‘secretly throttling’ iPhones

A class action style lawsuit is being launched against Apple in the UK seeking damages worth a total of £768 million (circa $935M).

The representative action is being filed by consumer rights campaigner, Justin Gutmann, citing competition law — with the suit accusing the mobile maker of abusing its market dominance to engage in exploitative and unfair commercial practices when, per the claim, it misled iPhone users by applying a power management software update, first released in January 2017 in iOS 10.2.1, that throttled the performance of affected devices.

The suit is being filed in the Competition Appeal Tribunal in London on behalf of up to 25 million UK iPhone users who used any of 10 different models of iPhone, from the iPhone 6 through to the iPhone X (and including the iPhone SE).

The litigation, which is being bankrolled by a litigation funder called Balance Legal Capital , is opt out, not opt in — meaning affected UK consumers do not need to actively sign up to be part of the representative suit (although they would need to provide their details at a later date if the suit prevails and wish to receive their portion of any damages — albeit, damages could be as low as ~£30 per affected device).

A website has been launched with details about the suit at https://theiphoneclaim.com/.

Apple has already faced litigation over iPhone performance ‘throttling’ claims in a number of other European markets.

Back in 2020, it also settled a class action suit on home turf which had similarly accused it of intentionally slowing down the performance of older iPhones to encourage customers to buy newer models or fresh batteries — shelling out up to $500M to make the litigation go away, albeit doing so without accepting wrongdoing.

In the same year, France’s competition watchdog fined Apple around $27 million for throttling older devices without informing users. In that instance Apple paid the fine and agreed to display a statement on its website about the sanction for a month.

While, in 2018, Italy’s consumer watchdog stung Apple (and Samsung) with smaller financial penalties for forcing updates it found could slow or break devices.

The latest UK action over the throttling issue follows what Gutmann describes as expert analysis carried out by technical experts instructed by his lawyers, Charles Lyndon Ltd, which he said demonstrates that Apple’s tool was introduced with the aim of reducing the demands on the battery, which had the effect of slowing the processor’s speed at peak performance by up to 58% in the case of the iPhone 6s and 7.

The complainant further claims Apple mislead consumers because information about the tool was not included in the iOS 10.2.1 update’s download description — meaning users were not made aware ahead of time of the detrimental effect it would have on their device.

Instead, users who failed to update to the latest iOS version were told they risked exposure to bugs and security flaws by missing out on key security updates. And the suit also claims some users will have been prompted up to 70 times to install the update in notifications, while those who did accept the update were unable to uninstall it, meaning they were stuck with any negative impact on their device performance.

Apple did later add mention of the tool to the release notes on its website but, again, the complaint will argue it misled customers by failing to make it clear the tool would slow device performance — only stating the update “improves power management during peak workloads to avoid unexpected shutdowns on iPhone.”

It also went on to apologize over its handling of the episode — and ran a battery replacement scheme through 2018 for all affected iPhone models — but Gutmann also accuses the company of failing to sufficiently publicize that program.

Commenting in a statement, he said: “Instead of doing the honourable and legal thing by their customers and offering a free replacement, repair service or compensation, Apple instead misled people by concealing a tool in software updates that slowed their devices by up to 58%.”

“I’m launching this case so that millions of iPhone users across the UK will receive redress for the harm suffered by Apple’s actions. If this case is successful, I hope dominant companies will re-evaluate their business models and refrain from this kind of conduct,” he added.

Asked why the suit is being filed now, a spokesperson for the claimant said that along with his solicitors he’s been working on the claim for “some time”. “It takes time to build a claim like this, including investigating the technical aspects of it, and we are now in the position that we are ready to file,” they added.

“You are correct that a number of similar class actions have been filed. Although none of the European actions have yet been successful, Apple has been fined by the French and Italian regulators in relation to this conduct and has settled a number of class actions in the US. Mr Gutmann understands that consumer law class actions have been certified in Canada and Spain; and that class actions have been filed (but not yet certified) in Belgium, Italy and Portugal.”

Earlier this year a separate class action style litigation was launched in the UK against Facebook’s parent, Meta — which is also seeking to use competition law as a route to extract damages from a tech giant.

Privacy law-focused representative actions suffered a set back in the UK last year when the Supreme Court sided with Google — ending a long running litigation over a workaround it had applied to Apple’s Safari between 2011 and 2012 which overrode iPhone users’ privacy settings.

In the Safari workaround case the class action style litigation failed as the court deemed it necessary to demonstrate damage/loss on an individual basis, rather than agreeing uniform compensation could be applied — so it will be interesting to see whether litigation lawyers have more success using competition claims to extract representative damages over harmful Big Tech practices, either in court or through out of court settlements.

UK market abuse suit seeks up to $935M from Apple for ‘secretly throttling’ iPhones

A class action style lawsuit is being launched against Apple in the UK seeking damages worth a total of £768 million (circa $935M).

The representative action is being filed by consumer rights campaigner, Justin Gutmann, citing competition law — with the suit accusing the mobile maker of abusing its market dominance to engage in exploitative and unfair commercial practices when, per the claim, it misled iPhone users by applying a power management software update, first released in January 2017 in iOS 10.2.1, that throttled the performance of affected devices.

The suit is being filed in the Competition Appeal Tribunal in London on behalf of up to 25 million UK iPhone users who used any of 10 different models of iPhone, from the iPhone 6 through to the iPhone X (and including the iPhone SE).

The litigation, which is being bankrolled by a litigation funder called Balance Legal Capital , is opt out, not opt in — meaning affected UK consumers do not need to actively sign up to be part of the representative suit (although they would need to provide their details at a later date if the suit prevails and wish to receive their portion of any damages — albeit, damages could be as low as ~£30 per affected device).

A website has been launched with details about the suit at https://theiphoneclaim.com/.

Apple has already faced litigation over iPhone performance ‘throttling’ claims in a number of other European markets.

Back in 2020, it also settled a class action suit on home turf which had similarly accused it of intentionally slowing down the performance of older iPhones to encourage customers to buy newer models or fresh batteries — shelling out up to $500M to make the litigation go away, albeit doing so without accepting wrongdoing.

In the same year, France’s competition watchdog fined Apple around $27 million for throttling older devices without informing users. In that instance Apple paid the fine and agreed to display a statement on its website about the sanction for a month.

While, in 2018, Italy’s consumer watchdog stung Apple (and Samsung) with smaller financial penalties for forcing updates it found could slow or break devices.

The latest UK action over the throttling issue follows what Gutmann describes as expert analysis carried out by technical experts instructed by his lawyers, Charles Lyndon Ltd, which he said demonstrates that Apple’s tool was introduced with the aim of reducing the demands on the battery, which had the effect of slowing the processor’s speed at peak performance by up to 58% in the case of the iPhone 6s and 7.

The complainant further claims Apple mislead consumers because information about the tool was not included in the iOS 10.2.1 update’s download description — meaning users were not made aware ahead of time of the detrimental effect it would have on their device.

Instead, users who failed to update to the latest iOS version were told they risked exposure to bugs and security flaws by missing out on key security updates. And the suit also claims some users will have been prompted up to 70 times to install the update in notifications, while those who did accept the update were unable to uninstall it, meaning they were stuck with any negative impact on their device performance.

Apple did later add mention of the tool to the release notes on its website but, again, the complaint will argue it misled customers by failing to make it clear the tool would slow device performance — only stating the update “improves power management during peak workloads to avoid unexpected shutdowns on iPhone.”

It also went on to apologize over its handling of the episode — and ran a battery replacement scheme through 2018 for all affected iPhone models — but Gutmann also accuses the company of failing to sufficiently publicize that program.

Commenting in a statement, he said: “Instead of doing the honourable and legal thing by their customers and offering a free replacement, repair service or compensation, Apple instead misled people by concealing a tool in software updates that slowed their devices by up to 58%.”

“I’m launching this case so that millions of iPhone users across the UK will receive redress for the harm suffered by Apple’s actions. If this case is successful, I hope dominant companies will re-evaluate their business models and refrain from this kind of conduct,” he added.

Asked why the suit is being filed now, a spokesperson for the claimant said that along with his solicitors he’s been working on the claim for “some time”. “It takes time to build a claim like this, including investigating the technical aspects of it, and we are now in the position that we are ready to file,” they added.

“You are correct that a number of similar class actions have been filed. Although none of the European actions have yet been successful, Apple has been fined by the French and Italian regulators in relation to this conduct and has settled a number of class actions in the US. Mr Gutmann understands that consumer law class actions have been certified in Canada and Spain; and that class actions have been filed (but not yet certified) in Belgium, Italy and Portugal.”

Earlier this year a separate class action style litigation was launched in the UK against Facebook’s parent, Meta — which is also seeking to use competition law as a route to extract damages from a tech giant.

Privacy law-focused representative actions suffered a set back in the UK last year when the Supreme Court sided with Google — ending a long running litigation over a workaround it had applied to Apple’s Safari between 2011 and 2012 which overrode iPhone users’ privacy settings.

In the Safari workaround case the class action style litigation failed as the court deemed it necessary to demonstrate damage/loss on an individual basis, rather than agreeing uniform compensation could be applied — so it will be interesting to see whether litigation lawyers have more success using competition claims to extract representative damages over harmful Big Tech practices, either in court or through out of court settlements.

Qualcomm wins appeal against $1BN+ EU antitrust fine

The European Union is considering how to respond to a major blow to its antitrust enforcement after a court in Luxembourg sided with chipmaker Qualcomm — which had been appealing a €997 million ($1BN+) fine the EU levied against it back in 2018.

At the time, the bloc’s competition regulator concluded Qualcomm had abused its market position by providing financial incentives to iPhone maker Apple to exclusively use its chips in iPhones and iPads, between 2011 and 2016. However, per the AP, the EU General Court found a number of procedural irregularities in the case and rejected the Commission’s analysis of the conduct it had alleged against the chipmaker.

“While the Commission concluded that the incentive payments had reduced Apple’s incentives to switch to competing suppliers to source LTE chipsets, it is apparent from the Commission decision that Apple had had no technical alternative to Qualcomm’s LTE chipsets for the majority of its requirements,” the news agency reports the court setting out its reasoning for siding with Qualcomm.

Asked for its response to the ruling, a spokeswomen for the EU’s executive told us: “The European Commission takes note of today’s judgement by the General Court that annulled the Commission’s 2018 Decision which found that Qualcomm had abused its dominant position.

“The Commission will carefully study the judgement and its implications and will reflect on possible next steps.”

Qualcomm was also contacted for comment.

The Commission hit the chipmaker with another, smaller antitrust fine back in 2019 — in a separate enforcement related to what it assessed as abusive pricing of baseband chips — which Qualcomm also chose to appeal (a verdict on that appeal remains pending).

Today’s ruling is not the first time the EU’s antitrust enforcement against tech firms has faced being unpicked in court: Just under two years ago the EU’s General Court also found against a Commission decision to fine Apple $15BN for what it had claimed were illegal tax benefits in Ireland, dating back as far as 2003. (Although the EU’s executive went on to appeal in the hopes of overturning Apple’s successful appeal.)

While, back in January, the EU also had a $1.2BN antitrust fine against Intel overturned by the General Court — in a case related to practices by the chipmaker that date back as much as two decades (the penalty itself was handed down in 2009).

However the EU has (so far) had better luck making its antitrust enforcement stick against Google: Back in November 2021 the General Court largely dismissed Google’s appeal against the €2.42BN penalty the Commission handed down in 2017, in relation to anti-competitive practices linked to its product comparison search service, Google Shopping.

A number of other Commission antitrust decisions against Google are still pending appeals decisions. Such as the record-breaking $5BN penalty the EU hit the company with in 2018 for violations linked to how it operates its Android mobile platform.

Later the same year, Google appealed that decision — and its appeal was heard last year — but the court has yet to hand down a verdict.