Advocate General recommends Court of Justice dismisses Google's Android appeal

Advocate General (AG) Kokott has proposed that a EUR 4.124 billion fine imposed on Google be upheld and that Google's six grounds of appeal are dismissed in their entirety. The opinion is not binding on the Court of Justice (CJ) , and it remains to be seen to what extent the CJ will take AG Kokott's views into account.

The background

Google's appeal stems from a 2018 Commission decision in which Google was fined almost EUR 4.343 billion. The Commission found that Google had abused a dominant position in certain markets by imposing anti-competitive contractual restrictions on mobile device manufacturers (OEMs) and mobile network operators (MNOs):

• The MADAs: Google's Mobile Application Distribution Agreements with OEMs were found to contain certain pre-installation conditions: a licence for the Play Store could be obtained only if Google Search was pre-installed (the first bundle); and a licence for Play Store and Google Search could be obtained only if Chrome was pre-installed (the second bundle).
• The AFAs: In order to obtain a license for Play Store and Google Search, OEMs also had to enter into Anti-Fragmentation Agreements requiring them not to sell devices running versions of Android that were not approved by Google.
• The RSAs. Revenue Share Agreements granted OEMs and MNOs a percentage of Google's ad revenue if they agreed not to pre-install a competing general search service on any device within an agreed portfolio.

Google appealed the Commission's decision to the General Court (GC), which in 2022 largely upheld the Commission's decision except for its findings on RSAs. The GC also revised Google's fine down to EUR 4.124 billion.

Google lodged an appeal before the CJ.

The AG's opinion

AGs are independent legal advisors to the CJ and assist the court by writing opinions on the cases before it. On 19 June 2025, AG Kokott proposed that Google's appeal to the CJ be dismissed and that the GC's ruling, including the revised fine, be upheld.

 (1) The finding of the infringement (first to fifth grounds of appeal)

In its appeal, Google claimed that the GC had committed errors in law when assessing the MADAs (the first and second grounds of appeal) and mischaracterised the AFAs (the third and fourth grounds of appeal). These were all dismissed by the AG.

Two points of note arising out of AG Kokott's assessment of the first four grounds are:

• The counterfactual. AG Kokott noted that the Commission is required to establish a causal link between the alleged abusive behaviour and its anti-competitive effects, and one of the ways to do this is by looking at the counterfactual. However, according to AG Kokott, the GC had correctly found that the Commission is not required to engage in a counterfactual analysis, and the test was not useful in this case. In part, this is because the MADA pre-installation conditions created a “status quo bias" which competitors could not offset.
• The application of the AEC test. AG Kokott also agreed that it would not be appropriate to apply the “as efficient competitor” test in this case. No competitor could be as efficient as Google, because no competitor had the same advantage of pre-installation. The use of the AEC test will likely be less valuable in future cases implicating the digital economy, where factors such as access to data; multi-sidedness and network effects are important; and where a dominant undertaking is dominant in a number of markets across an ecosystem (such as the Android ecosystem).

Google also criticised the GC's finding of a single and continuous infringement (the fifth ground of appeal). Google argued that the GC should have annulled the Commission's decision in its entirety when it annulled its decision relating to portfolio-based RSAs. The AG proposed that this argument should be dismissed: the remaining three infringements were still part of one broader strategy to reach an identical goal.

(2) The fine - sixth ground of appeal

AG Kokott also disagreed with Google's argument that the GC had erred when exercising its unlimited jurisdiction in relation to the penalty, including that it did not take into account the annulment of the Commission's decision on RSAs, thereby effectively increasing the fine.

Interestingly, AG Kokott queried why the GC did not include the calculations it used to determine the revised fine in its reasoning, pointing out that this would have been helpful for the CJ. However, this was not enough to conclude that the GC's decision on the fine was disproportionate or not properly reasoned.

Next steps

The judges of the CJ will now deliberate and give judgment at a later date. If the CJ agrees with Google's arguments, it can set aside the GC's judgment and either give a final judgment itself, or refer the matter back to the GC. AG opinions are not binding on the CJ, although they are influential.  AG Kokott's views will no doubt be considered carefully by the CJ as they consider the merits of the appeal.