An advocate general at the Court of Justice of the European Union has recommended setting aside the judgment that annulled the European Commission’s almost €1.5 billion Google AdSense fine, while sending the case back for unresolved issues and a new assessment of the penalty.
The opinion by Advocate General Juliane Kokott concerns contractual terms Google used for its AdSense for Search service. The agreements restricted or prohibited website operators from placing advertisements supplied by competing services. The Commission treated three sets of clauses—exclusivity, placement and prior authorisation—as abuses of a dominant position between 2006 and 2016 and imposed the fine in 2019.
The General Court annulled that decision in September 2024. It found that the Commission had not adequately examined relevant circumstances, particularly the duration of the contractual relationships, and therefore had not established the infringements. The Commission appealed on points of law.
Kokott said the General Court asked too much of the Commission. EU competition law requires an assessment of all relevant circumstances when contractual commitments by a dominant undertaking may exclude rivals. But, in her view, that does not require a highly detailed inquiry into every underlying contract and every circumstance attached to each individual criterion.
The relevant agreements could instead be assessed cumulatively, with their respective durations considered alongside the other factors used to test possible exclusionary effects. The Commission had carried out such an overall assessment and could in some instances rely on average values. On that basis, the opinion says the General Court erred both on exclusionary effects and on whether the clauses could form a single and continuous infringement.
The recommendation would not restore the Commission decision outright. Several Google arguments remain unexamined, including objections to the amount of the fine, so Kokott proposed returning the case to the General Court. She also said any new fine should be reduced because the Commission did not appeal the finding that exclusionary effects were not sufficiently demonstrated for 2016.
The opinion is not binding. The Court’s judges have begun their deliberations and will deliver judgment later; the General Court’s 2024 annulment remains the operative ruling in the meantime.
Official court opinion and case materials
