Clifford Chance
On Exclusivity Clauses and Effects: the EU General Court judgment annuls the Google Adsense decision including its €1.49 billion fine
4 October 2024
On 18 September 2024, the EU General Court (GC) annulled the European Commission's (EC) decision finding that Google had abused its dominant position in the market for online search advertising intermediation by imposing exclusivity, privileged placement, and authorisation clauses on third-party website publishers who used Google's intermediation services to offer search ads.
The GC chiefly found that the EC had insufficiently established for the period of the alleged infringements that the three clauses in the Google Services Agreements were capable of preventing Google's competitors from accessing a significant part of the market for online search advertising intermediation. The judgment's main takeaway is that where the EC alleges an infringement based on exclusivity clauses, and where the dominant company disputes the specific capacity of those clauses to exclude as efficient competitors from the market, or raises an objective justification (as Google had), the EC must ensure that those clauses were, taking into account all the circumstances of the case, actually capable of excluding as efficient competitors.
