After Google dodged a $1.66 billion fine, an EU legal adviser wants a do-over

Google’s ad contracts should have been assessed together, rather than picked apart individually, the advocate general said.(CN) — Google’s escape from a nearly 1.5 billion euro ($1.66 billion) antitrust fine rested on an overly demanding test of how its advertising contracts squeezed rivals, an adviser to Europe’s top court said Thursday.The European Commission is asking the Court of Justice of the European Union to overturn a 2024 judgment scrapping its penalty against Google and parent company Alphabet. Regulators said contracts for its AdSense for Search service kept competing advertising services out.A search on another website could still make money for Google. AdSense for Search placed ads alongside that site’s search results, with advertisers generally paying when someone clicked. Google then split the revenue with the website’s publisher.But publishers accepting Google’s ads also accepted restrictions. Earlier contracts barred competing services from covered websites. Replacement terms introduced in March 2009 reserved prominent space for Google’s ads and required its approval before publishers changed how search ads, including rivals’ ads, appeared.Advocate General Juliane Kokott recommended overturning the judgment and returning the case to the General Court. She said the lower tribunal had demanded too much scrutiny of individual contracts without properly weighing the evidence together.The General Court had faulted regulators for adding successive contract periods together without sufficiently examining whether publishers could switch suppliers between renewals or exercise rights to leave early. Kokott said repeated renewals and unused exit rights also mattered: Regulators could assess how the agreements worked collectively without dissecting every contract.The lower tribunal had largely accepted evidence of Google’s market strength, the restrictions’ reach and their deterrent effect on publishers considering rivals. Kokott said it had not explained how examining contract duration more closely could have changed that assessment.Vuk Leković, founder of Leković Legal, a competition lawyer and former case handler at the Serbian Competition Authority, found her reasoning persuasive. He said regulators would still have to examine competitive effects, but without a forensic review of every contract. “For dominant companies, the lesson I would draw for clients is that short contract terms and termination rights are not a safe harbor if, in practice, customers keep renewing,” he said.Leković nevertheless cautioned that Google continued to argue the commission was seeking a fresh assessment of facts, beyond the appeal court’s role. A commission victory, he stressed, would not automatically restore the original fine.Google maintains that competitors could pitch for business when contracts expired but lost because their services were inferior.Kokott asked, “In that respect, the question also raised by the commission in these proceedings does indeed arise: why was it actually necessary, from Google’s perspective, despite the allegedly superior quality of its offering, to introduce those clauses and to continue to apply them on a graduated basis for years?”Competing advertising services needed access to publishers’ websites to reach users beyond Google’s search engine. Building a rival business required substantial investment, while Google benefited from an established network of advertisers and publishers.Complaints reached European regulators in 2010, followed by others from Microsoft, Expedia and more companies. Google removed or amended the restrictions in September 2016. The commission imposed its fine in March 2019 for conduct dating to 2006; the General Court annulled the decision in September 2024.A Google spokesperson said the company was reviewing Thursday’s opinion. “The General Court rightly annulled the original decision, finding that the EC had not demonstrated that our contracts restricted competition,” the spokesperson said.The European Commission declined to comment.Other European competition cases have challenged how tech companies steer business toward their services. In July, the Court of Justice upheld a 4.125 billion-euro Android fine over restrictions promoting Google Search and Chrome on mobile devices. Meta is challenging a 797.72 million-euro penalty over linking Marketplace to Facebook and imposing unfair conditions on rival classified ad services. Its challenge remains pending before the General Court.Kokott’s opinion is nonbinding. If followed, it would leave the General Court to resolve Google’s remaining challenges, including objections to the penalty. The commission did not appeal the rejection of its findings for 2016, which is now final. Any restored fine must therefore shrink, Kokott concluded, even if Google’s broader victory is overturned.Courthouse News reporter Eunseo Hong is based in the Netherlands.Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads