Language of document :

Action brought on 4 June 2019 – Google and Alphabet v Commission

(Case T-334/19)

Language of the case: English

Parties

Applicants: Google LLC (Mountain View, California, United States), Alphabet, Inc. (Mountain View) (represented by: C. Jeffs, lawyer, J. Staples, Solicitor, D. Beard QC and J. Williams, Barrister)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should:

to annul (in whole or in part) the Commission’s decision of 20 March 2019 in Case COMP/AT.40411 – Google Search (AdSense);

consequently, or in the alternative, to annul or reduce the fine imposed on the applicants in exercise of the Court’s unlimited jurisdiction; and

in any event, order the Commission to bear the applicants’ costs and expenses in connection with these proceedings.

Pleas in law and main arguments

The present action seeks the annulment of the Commission’s decision of 20 March 2019 relating to a proceeding under Article 102 TFEU and Article 54 of the EEA Agreement (AT.40411 — Google Search (AdSense)). The applicants seek annulment of each of the three findings of infringement, the finding that they amounted to a single continuous infringement and the imposition of a fine.

In support of the action, they rely on five pleas in law.

First plea in law, alleging that the contested decision errs in its assessments of market definition and thus dominance. In particular, the contested decision errs in finding that:

search ads and non-search ads do not compete;

directly sold ads and intermediated ads do not compete.

Second plea in law, alleging that the contested decision errs in finding that Google’s so-called exclusivity clause (ʻSite-Exclusivity Clauseʼ) was abusive. The contested decision:

mischaracterizes the Site-Exclusivity Clause as an exclusive supply obligation;

errs in finding that the decision was not required to analyze if the Site-Exclusivity Clause was likely to have anti-competitive effects;

fails to demonstrate that the Site-Exclusivity clause, however characterized, was likely to restrict competition.

Third plea in law, alleging that the contested decision errs in finding that Google’s premium placement and minimum Google ads clause (ʻPlacement Clauseʼ) was abusive. The contested decision:

mischaracterizes the Placement Clause;

fails to demonstrate that the Placement Clause was likely to restrict competition.

Fourth plea in law, alleging that the contested decision errs in finding that Google’s authorising equivalent ads clause (ʻModification Clauseʼ) was abusive. The contested decision:

does not demonstrate that the Modification Clause was likely to restrict competition;

alternatively wrongly ignores that the Modification Clause was objectively justified because it protected website users, publishers, advertisers and Google and/or that any foreclosure effect was outweighed by the advantages of the clause.

Fifth plea in law, alleging that the contested decision errs in imposing a fine and in calculating that fine. The contested decision:

fails to consider Google’s lack of intent or negligence and that the Commission selected the case for commitments;

alternatively errs in calculating the fine;

further or alternatively does not respect the principle of proportionality.

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