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Competition Policy

Cases & Judgments (Information Communication Technologies ICT)

Antitrust

Each case has a code which indicates the sector according to the General Industrial Classification of Economic Activities (NACE).

> Search cases in the register by NACE code.

 

The focus here is on stopping anti-competitive behaviour in order to protect innovation and consumer choice and ensure equal opportunities to compete.

Main investigations and outcomes:

Amazon Marketplace and Amazon Buy Box

Ongoing cases – Amazon is a dual role platform that provides marketplace services to sellers, but also sells products to consumers, in direct competition with those sellers. The European Commission has opened a formal antitrust investigation (see press release) to assess whether Amazon's use of non-public sensitive data from independent retailers, who sell on its marketplace, to the benefit of its own retail business, is in breach of EU competition rules. The Commission also opened a second formal antitrust investigation into the possible preferential treatment of Amazon's own retail offers and those of marketplace sellers that use Amazon's logistics and delivery services, in the selection mechanism of its prominent Buy Box and Prime systems.
 

Apple

Ongoing cases – The European Commission has opened formal antitrust investigations (see press release) to assess whether Apple's rules for app developers on the distribution of apps via the App Store violate EU competition rules. The investigations concern in particular the mandatory use of Apple's own proprietary in-app purchase system and restrictions on the ability of developers to inform iPhone and iPad users of alternative cheaper purchasing possibilities outside of apps. The investigations concern the application of these rules to all apps, which compete with Apple's own apps and services in the European Economic Area (EEA). The investigations follow up on separate complaints by Spotify and by an e-book/audiobook distributor on the impact of the App Store rules on competition in music streaming and e-books/audiobooks. On 30 April 2021, the Commission has issued a Statement of Objections against Apple, setting out its preliminary view that Apple abused its dominant position for the distribution of music streaming apps through its App Store and distorted competition in the music streaming market.

On 16 June 2020, the Commission has opened formal antitrust investigations (see press release) into suspected infringement of antitrust rules by Apple in case AT.40452. The investigation examined Apple’s refusal to supply access to the Near-Field Communication (“NFC”) functionality to the developers of mobile wallets for payments with Apple devices. NFC is standardised, available in almost all payment terminals in stores and allows for the safest and most seamless mobile payments.

On 2 May 2022, the Commission sent a Statement of Objections to Apple. In its preliminary view, Apple restricted competition in the market for mobile wallets on Apple devices by limiting access to the NFC functionality for payments in stores in the EEA.

The Commission’s preliminary findings have shown that Apple enjoys significant market power in the market for smart mobile devices and a dominant position on mobile wallet markets. By restricting access to the NFC functionality, Apple has reserved the market to itself. Apple’s full control over its closed ecosystem enabled its proprietary payment solution, Apple Pay, to remain the only player with access to the necessary NFC input. The exclusion of competitors leads to less innovation and less consumer choice for mobile wallets on Apple devices. If confirmed, this conduct would infringe Article 102 of the Treaty on the Functioning of the European Union (TFEU) that prohibits the abuse of a dominant market position.
 

Qualcomm (exclusivity payments)

2018 – The European Commission fined Qualcomm EUR 997 million (see press release) for abusing its market dominance in the market for LTE baseband chipsets between 25 February 2011 and 16 September 2016. Qualcomm prevented rivals from competing in the market by making significant payments to Apple, conditional upon Apple not buying from Qualcomm’s rivals. In 2011 Qualcomm, the world’s largest supplier of LTE baseband chipsets signed an agreement with Apple committing to make significant payments to Apple on the basis of Apple exclusively using Qualcomm chipsets in its ‘iPhone’ and ‘iPad’ devices. In 2013, this agreement was extended to the end of 2016. The Commission concluded that Qualcomm’s illegal practice had a significant detrimental impact on competition because it excluded rivals from the market and deprived European consumers of genuine choice and innovation.

Qualcomm brought an action for annulment of the Commission decision of 18 July 2019. See the General Court’s judgment here (T-235/18).

Google Shopping

2017 – The European Commission fined Google EUR 2.42 billion (see press release) for abusing its market dominance as a search engine by giving an illegal advantage to another Google product, its comparison shopping service. Google’s flagship product is the Google search engine, which provides search results to consumers who pay for the service with their data. In 2004, Google entered the separate market of comparison shopping in Europe, with a product now called “Google Shopping”. From 2008, Google began to implement in European markets a strategy to favour its comparison shopping service, which relied on Google’s dominance in general internet search, instead of competition on the merits in comparison shopping markets. Google systematically gave prominent placement to its own comparison shopping service, and demoted rival comparison shopping services in its search results. Evidence showed that even the most highly ranked rival service appeared on average only on page four of Google’s search results, and others appeared even further down. Google’s own comparison shopping service was not subject to Google’s generic search algorithms, including such demotions. Consequently, Google’s comparison shopping service was much more visible to consumers in Google’s search results, compared to rival comparison shopping services. Evidence also shows that consumers click far more often on results that are more visible, i.e. the results appearing higher up in Google’s search results. As a result of Google’s illegal practices, traffic to Google’s comparison shopping service increased significantly, whilst rivals suffered very substantial losses of traffic on a lasting basis.

The Commission’s decision also ordered Google to comply with the principle of giving equal treatment to rival comparison shopping services and its own service. More specifically, it required Google to apply the same processes and methods to position and display rival comparison shopping services in Google's search results pages as for its own comparison shopping service.

To comply with the Decision, Google has put in place a mechanism where the “Shopping Unit”, the group of product results displayed on Google's general search results pages, now includes product results from rival comparison shopping services as well as Google Shopping. Google Shopping now also holds separate accounts in Europe.

Google brought an action for annulment of the Commission decision. See the General Court’s judgment here (case T-612/17). This case has been appealed and is currently pending before the ECJ C-48/22 P.

Google Android

2018 – The European Commission fined Google EUR 4.34 billion (see press release) for anticompetitive restrictions it had imposed, since 2011, on mobile device manufacturers and network operators to cement its dominant position in general internet search.

The Commission’s decision covers three types of restrictions that Google imposed on mobile device manufacturers and network operators to ensure that traffic was directed to Google Search: First, Google required manufacturers to pre-install Google Search and the Chrome browser on devices running on the Android mobile operating system. Manufacturers had to comply if they wanted to be able to sell devices with the Google applications store. Second, Google paid manufacturers and network operators to make sure that only Google Search was pre-installed on such devices. Third, Google obstructed the development of competing mobile operating systems. These could have provided a platform for rival search engines to gain traffic. The Commission decision concluded that these three types of abuse form part of an overall strategy by Google to cement its dominance in general internet search, at a time when the importance of mobile internet was growing significantly.

The Commission decision required Google to bring its illegal conduct effectively to an end within 90 days of the decision and requires Google to refrain from any measure that has the same or an equivalent object or effect as these practices. Following the Commission decision, Google amended its contractual arrangements with mobile device manufacturers and network operators. In addition to its core obligation to untie the supply of Google’s store for applications, Google Search and Google Chrome, through amendments to its contractual arrangements, Google is currently implementing a choice screen remedy. This allows consumers to choose which search service they want on their Android smart mobile device at startup. The consumer’s selection replaces Google Search on key entry points on their device.

Google brought an action for annulment of the Commission decision. The case is pending before the General Court (Case T-604/18).
 

Google AdSense

2019 – The European Commission fined Google EUR 1.49 billion (see press release) for abusing its market dominance by imposing a number of restrictive clauses in contracts with third-party websites. This misconduct lasted over 10 years and prevented Google’s rivals from placing their search adverts on these websites. Google was by far the strongest player in online search advertising intermediation in the EEA, with a market share above 70% from 2006 to 2016. Through “AdSense” for Search, Google functions as an intermediary between advertisers and owners of publisher websites.

The Commission’s investigation found that:

  • Starting in 2006, Google included exclusivity clauses in its contracts, thus prohibiting publishers from placing any search adverts from competitors on their search results pages;
  • As of March 2009, Google gradually began replacing the exclusivity clauses with so-called “Premium Placement” clauses. As a result, Google’s competitors were prevented from placing their search adverts in the most clicked on parts of the websites’ search results pages; and
  • As of March 2009, Google also included clauses requiring publishers to seek written approval from Google before making changes to the way in which any rival adverts were displayed. This enabled Google to control how attractive competing search adverts could be.

Google ceased the illegal practices a few months after the Commission issued a Statement of Objections in this case, in July 2016.

Google brought an action for annulment of the Commission decision. The case is currently pending before the General Court (Case T-334/19).
 

Resale Price Maintenance (RPM):

2018 – In four separate decisions, the European Commission fined consumer electronics manufacturers Asus, Denon & Marantz, Philips and Pioneer (see press release) for imposing fixed or minimum resale prices on their online retailers in breach of EU competition rules. The fines, totalling over EUR 111 million, were in all four cases reduced due to the companies' cooperation with the Commission. Asus, Denon & Marantz, Philips and Pioneer engaged in so called "fixed or minimum resale price maintenance (RPM)" by restricting the ability of their online retailers to set their own retail prices for widely used consumer electronics products such as kitchen appliances, notebooks and hi-fi products.
 

Guess:

2018 – The European Commission fined the clothing company Guess EUR 39.8 million (see press release) for restricting retailers from online advertising and selling cross-border to consumers in other Member States ("geo-blocking"), in breach of EU competition rules. Guess' distribution agreements restricted authorised retailers from 1) using the Guess brand names and trademarks for the purposes of online search advertising; 2) selling online without a prior specific authorisation by Guess. The company had full discretion for this authorisation, which was not based on any specified quality criteria; 3) selling to consumers located outside the authorised retailers' allocated territories; 4) cross-selling among authorised wholesalers and retailers; and 5) independently deciding on the retail price at which they sell Guess products. The restrictions allowed Guess to partition European markets and to maintain artificially high retail prices, in particular in Central and Eastern European countries.
 

Videogames:

2021 – The European Commission fined Valve (the owner of the online PC gaming platform “Steam”) and five PC video game publishers (Bandai Namco, Capcom, Focus Home, Koch Media and ZeniMax) EUR 7.8 million (see press release) for engaging, between September 2010 and October 2015, bilaterally in so-called “geo-blocking” practices, with a view to restricting cross-border sales of certain PC video games on the basis of the geographical location of users within the EEA, in breach of EU competition rules. In addition, Bandai, Focus Home, Koch Media and ZeniMax were also fined for concluding bilaterally with some of their respective PC video games distributors in the EEA (other than Valve) licensing and distribution agreements containing clauses that restricted cross-border (passive) sales of the affected PC video games within the EEA. These agreements lasted generally between 3 and 11 years and were implemented, depending on each bilateral relationship, between March 2007 and November 2018. The geo-blocking practices prevented consumers from activating and playing PC video games sold by the publishers' distributors either on physical media, such as DVDs, or through downloads, and therefore denied European consumers the benefits of the EU's Digital Single Market to shop around between Member States to find the most suitable offer. The fines for the publishers, totalling over EUR 6 million, were reduced due to the companies' cooperation with the Commission. Valve chose not to cooperate with the Commission and was fined over EUR 1.6 million.

Valve brought an action for annulment of the Commission decision. The case is currently pending before the General Court (Case T-172/21).

 

Mergers

Each case has a code which indicates the sector according to the General Industrial Classification of Economic Activities (NACE).

> Search cases in the register by NACE code.

 

The Merger Regulation is intended to prevent mergers from seriously affecting competition. Given the dynamic nature of the ICT market, the Commission focuses on keeping the markets open for new entrants and encouraging technological innovation.

Recent cases include:

Clearance of Qualcomm’s acquisition of NXP Semiconductors, subject to remedies:

In January 2018, the Commission approved the proposed acquisition of NXP by Qualcomm, both important players in the semiconductor industry for smartphones. The approval was conditional on compliance with a series of commitments to address various concerns regarding notably the licensing of NXP’s NFC patents, the licensing of NXP’s MIFARE technology, and interoperability (IP/18/347).
 

Clearance of Apple’s acquisition of Shazam:

In September 2018, the Commission approved unconditionally the proposed acquisition of Shazam, a provider of music recognition applications for mobile devices and PCs, by Apple, a global technology company that, in addition to selling mobile communication and media devices, portable digital music players and PCs, also sells and delivers digital content online and offers a music and video streaming service (IP/18/5662).
 

Clearance of Microsoft’s acquisition of GitHub:

In October 2018, the Commission approved unconditionally the proposed acquisition of GitHub by Microsoft, both suppliers of tools that organisations and individuals use when developing and releasing software, also known as “DevOps” (IP/18/6155).
 

Clearance of NVIDIA’s acquisition of Mellanox:

In December 2019, the Commission approved unconditionally the proposed acquisition of Mellanox by NVIDIA, both providers of products and solutions used in datacentres. Mellanox supplies network interconnect products and solutions, and NVIDIA supplies graphic processing unit-based visual computing and accelerated computing platforms (IT/19/6840).
 

Clearance of IBM’s acquisition of Red Hat:

In June 2019, the Commission approved unconditionally the proposed acquisition of Red Hat by IBM, both providers of information technology solutions to enterprise customers (IP/19/3433).
 

Clearance of Google’s acquisition of Fitbit, subject to remedies:

In December 2020, the Commission approved the proposed acquisition of Fitbit by Google. The approval was conditional, among others, on Google complying with commitments that determine how Google can use the data collected for ad purposes, safeguard interoperability between competing wearables and Android and the ability of users to continue to share health and fitness data if they choose to (IP/20/2484).

 

State Aid

> Search cases in the register by NACE code.
 

State aid is any intervention using public resources at national, regional or local level to support a specific economic activity that affects trade between the EU Member States and may distort competition. The Commission assesses public support for broadband networks, research and development (R&D), productive investment in ICT companies and other such measures to ensure they do not distort the market and fair competition.

The ICT sector mainly benefits from State aid for broadband network development, for R&D and regional development.

The Commission examines whether:

  • the aid facilitates the development of an economic activity
  • the aid is the appropriate way to achieve its objective
  • the aid is necessarythe aid is proportionate and kept to a minimum.
  • the overall balance of the effects of the aid on the internal market is positive.

The Commission takes a positive view of aid that:

  • benefits consumers
  • provides new research grants
  • encourages the development of new products, such as open source.
  • extends broadband coverage to areas where such networks do not exist.

Further information