Luxembourg, LUXEMBOURG – The Computer & Communications Industry Association (CCIA Europe) submitted its response to Google’s appeal in Case C-738/22 P, which asked the European Court of Justice to set aside the General Court’s judgement in Case T-604/18 and annul the Commission’s decision in Case AT.40099 – Google Android, on 29 March. CCIA was first admitted as an interested third party in the General Court on 23 September 2019.
In its response, CCIA criticised the legal tests applied by the General Court to largely uphold the Commission’s prohibition decision. CCIA Europe submitted that, particularly in cases involving multi-sided and interconnected markets, it is the obligation of the enforcer to first show that conduct is anticompetitive by reference to a realistic counterfactual. CCIA also took issue with the General Court’s conflation of the anticompetitive effects of different types of conduct, and its approach to the Commission’s failure to attribute rivals’ foreclosure to the anticompetitive conduct alleged.
CCIA is concerned that the judgement under appeal impermissibly lowers the burden on enforcers to prove the elements necessary to uphold an infringement and impose significant financial penalties. CCIA Europe asked the Court of Justice to reaffirm the existing, long-standing legal requirements that ensure that European antitrust enforcement continues to protect competition, not competitors. This is particularly important for the digital sector which relies on innovation and experimentation in bringing new value propositions to the market.