The court is looking at Google/phonemakers agreements to share revenues from search pre-installed on devices - known as RSAs.
EC thinks these excluded rivals & broke the law/1
Google says these are (a) not exclusive because other services can get on the handset; (b) the RSAs cover such as small slice of the market that they had no exclusionary impact.
So, it comes down to "coverage."
EC says that coverage might be small but it's crucial for rivals/2
They could use that to got a "foothold" on the market &then grown with the booming mobile market to challenge Google.
Danish judge then starts talking about "camembert." He says the RSAs covered a "small slice" of the entire cheese. The rest of the cheese is search on PCs../3
...and other non-Android devices. So, what weight should the judge give to coverage?
EC says the camembert was "growing" because the mobile search market was getting bigger and biggers. And the RSAs covered "succulent slice" of the camembert. /4
Danish judge then suggests the debate replace camembert with "Danish Blue cheese."
I bet you never thought #ECJ case law on exclusivity (Tomra, Intel, Post Danmark II) would be best explained through a cheese analogy.
Admit it: this is entertaining. /ends
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Google went hard on benefits Android has created, creating platform that spurred competition. It said it has right to promote Android & not rest on its laurels.
EC said: G “gave itself the laurel wreath before race had started”/1
Google said EC had failed to prove preinstallation was anticompetitive because other apps/services could be downloaded easily & accessed through browsers.
EC said G execs knew full well their success rested in “not making its services optional.” /2
Consumers argue that there is a “status quo bias” where users stick with the stuff that comes on the phone.
Google argued previously that there was nothing on behavioural economics in the @EU_Commission#antitrust decision & doubting their value here /3
This will be a set-piece affair & judge already indicated last night he’s done with questioning. So, it’ll be more like:
Lawyers use this session to a) hit their strongest arguments again, b) address some lingering doubts by the judges to try to change their minds, c) make sweeping statements about the importance of X or Y for the future of the law/business. /2
Danish blue cheese came up repeatedly over 4 days as an analogy for market share, due to the Danish judge leading the questions. Expect some tortured references to that. /3
Last volley from #GoogleHearing today & it was important.
EU judges wanted to know: if we side with Google on one slice of their case does it destroy the whole @EU_Commission#antitrust decision?
Essentially, court is exploring the prospects of a partial @Google win /thread
This was all couched as "hypothetical" by judge Frimodt Nielsen (& I've seen other hearings where this happens) but it shows court is working out consequences of accepting at least parts of @Google appeal.
Why is this a tricky legal?
Well, funny you asked. Let me tell you. /1
Imagine the EC decision is a Greek temple with four pillars.
@EU_Commission says each of the four pillars is an infringement of EU law & the temple overall is a big single overarching infringement. So, there are two strands to its case: the 4 pillars & the temple itself. /2
Google took on the "staggering" antitrust fine in its pleas today, saying it should have been less (or zero) given it couldn't have known that EC would hit an open platform like this.
EC said: the case was about tying software to operating systems. You knew about that already/2
In fact, @sundarpichai had blogged about @Microsoft doing that with its browsers. So, come on guys, it wasn't out of the blue for you.
Break for lunch in #GoogleHearing at ECJ. Here's what happened this morning:
- Google argued that EC introduced new elements into its investigation (an AEC test) & because it did this in a letter instead of a charge-sheet, Google couldn't have a private hearing on it /1
- if G had had a hearing, it could have better defended itself against accusations of dodgy revenue-sharing agreements w/ phonemakers
- so, the procedural failure should mean court annuls this part of decision
EC aint buying this:
- says Google opted against hearing after SO /2
- the Letters of Facts just "refined" the "provisional" AEC test set out in SO, in light of Google's own defense
- and AEC test is only "one element" of the revenue-share case.
Interesting interaction with Judge Marcoulli who asked about relevance of UPS ruling (C-265/17 P) /3
Day4 of #GoogleHearing is upon us: they'll discuss procedural irregularities & the mega 4.34bn fine.
On procedure:
- Google says EC should have sent it formal charges (and not a so-called Letter of Facts), since this would have triggered a right to a closed-doors hearing. /1
- Not doing so deprived it of the right to be heard
- Google also says EC didn't record minutes of interviews with other companies sufficiently. Again, this means its defence rights were harmed.
- EC says: the LoF had no new charges, so it didn't need to be an SO. /2
- And also Google gave up right to a hearing when it didn't have one after getting the first SO.
- as to interviews: EC says it doesn't have to record every last utterance of an informal chat as an "interview."
On the fine:
- Google says it's the biggest ever in history /3