Google has used Android as a vehicle to cement the dominance of its search engine.

These practices have

denied rivals the chance to innovate and compete on the merits. They have denied European consumers
the benefits of effective competition in the important mobile sphere. This is illegal under EU antitrust
rules."

In particular, Google has required manufacturers to pre-install the Google Search app and
browser app (Chrome), as a condition for licensing Google's app store (the Play Store);---para 10

In 2005, Google bought the original developer of the Android mobile operating system and has
continued to develop Android ever since. Today, about 80% of smart mobile devices in Europe,
and worldwide, run on Android.—para 7

When Google develops a new version of Android it publishes the source code online. This in
principle allows third parties to download and modify this code to create Android forks. The
openly accessible Android source code covers basic features of a smart mobile operating system
but not Google's proprietary Android apps and services. moot proposition para 7&8-line 5—
B&B

The Commission decision concludes that Google is dominant in the markets for general internet
search services, licensable smart mobile operating systems and app stores for the Android
mobile operating system.

As a licensable operating system, Android is different from operating systems exclusively used
by vertically integrated developers (like Apple iOS or Blackberry). Those are not part of the
same market because they are not available for licence by third party device manufacturers.---
forked version of Phoenix, not available for 3rd party manufacturers but only for the Stark
branded devices.

Google's app store dominance is not constrained by Apple's App Store, which is only available
on iOS devices.—moot proposition para 12—B&B
EU CASES

1. Dominant position

An undertaking has a dominant position pursuant to Article 102 TFEU if it can behave to an appreciable
extent independently of its competitors, its customers and consumers in general, and thus ultimately
prevent effective competition from being maintained on the relevant market 1.

2. Relevant and geographic market

The starting point for the assessment of data-related abuses is the definition of the relevant
product or service market and its geographical scope 2.

Geographically, the coverage of the market depends on the area in which the undertakings are
engaged in the supply and demand of the products or services and where the competitive
conditions are sufficiently homogenous3.

3. Database—ISSUE 3
As a starting point, ‘data’ equals physically manifested information 4.For example, the Merriam–
Webster dictionary defines ‘data’ in its online version as ‘information in digital form that can be
transmitted or processed.5

Stark- For example, in the classic 1979 decision Hoffmann-Ra Roche, the Commission and the
CJEU based the finding that an undertaking had a dominant position, inter alia, on its
‘technological advantages’, explicitly stating the ‘highly developed customer information’ at its
disposal6.

1
Commission, Decision of 27 June 2017, AT.39740, para. 264 – Google Shopping; European Court of Justice (CJEU),
Decision of 13 February 1979, Case 85/76, ECLI:EU:C:1979:36, Court Reports 1979, 461, para. 38 – Hoffmann-La
Roche.
2
CJEU, Decision of 13 February 1979, Case 85/76, ECLI:EU:C:1979:36, Court Reports 1979, 461, para. 21 –
Hoffmann-La Roche
3
Commission, Decision of 27 June 2017, AT.39740, para. 148 – Google Shopping; see already CJEU, Decision of 14
February 1978, Case 27/76, ECLI:EU:C:1978:22, Court Reports 1978, 207, para. 44 – United Brands.
4
French Competition Authority and German Federal Cartel Office, Competition Law and Data, p. 4; available at
www.bundeskartellamt.de/SharedDocs/Publikation/DE/Berichte/Big%20Data%20Papier.pdf?
__blob=publicationFile&v=2; Nuys, WuW 2016, 512 (513); Zech, Daten und Wettbewerb in der digitalen Ökonomie,
Körber/Immenga (Eds.), 31 (39).
5
https://www.merriam-webster.com/dictionary/data
6
CJEU, Decision of 13 February 1979, Case 85/76, ECLI:EU:C:1979:36, Court Reports 1979, 461, 467, 522 and
para. 48 – Hoffmann-La Roche.
 Stark- The IMS Health case, still a landmark decision concerning the ‘essential facility doctrine’,
dealt with a right to access to sales information stored in a database of an undertaking offering
reports to the pharmaceutical industry 7.

7
CJEU, Decision of 29 April 2004, Case C-418/01, ECLI:EU:C:2004:257, Court Reports 2004, 5039 et seqq. – IMS
Health GmbH & Co OHG.