In one of the most important antitrust cases in the history of our industry, the Google Android case (one of several pending Google v. European Commission cases), the General Court of the European Union ("EU General Court")--the lower division of the Court of Justice of the European Union--will hand down its judgment on September 14, 2022 at 11 AM local (Luxembourg) time in open court. By then the decision will have taken the court (including its translators) almost a year from the hearing. I just spotted this information and a scan of an official notice by the court on LinkedIn, where Hausfeld partner Professor Thomas Hoeppner, who is representing certain key intervenors (and complainants to DG COMP), shared the information (click on the image to enlarge; this post contineus below the image):
As the list of intervenors shows, it's not a Play Store case per se, but it does concern app developers. The first listed intervenor on Google's behalf, the Application Developers Alliance, is simply a Google front just like ACT | The App(le) Association astroturfs for Apple in the App Store and standard-essential patents contexts.
The Play Store is key to that case because it's one of the essential Android components Google makes available to Android device makers (Original Equipment Manufacturers; OEMs) only if they take a commercial Android license from Google as opposed to using Android on an open-source basis. If Google's OEMs didn't have to fear subtle retribution that would disadvantage them in the marketplace, you'd see a long list of device makers as intervenors--such as Samsung--on the Commission's behalf. But they can't take that risk. They did, however, get questionnaires from DG COMP during the investigation that led to the decision Google is appealing. And it's telling that HMD (a licensee of Nokia's trademark) and Gigaset (a German company) are the only device makers to intervene on Google's behalf: they are not the most successful Android device makers to put it mildly and, therefore, in desperate need to suck up to the search monopolist.
Google allows at least some major Android device makers additionally to run their own app store on their devices, such as the Samsung Galaxy Store. Also, "sideloading" is possible on Android, though you get so many and so frightening warnings that it doesn't really matter much in practice. As Epic Games and 36 state attorneys-general are pursuing their federal lawsuits in the Northern District of California because Google still has a de facto monopoly in Android app distribution as third-party app stores can't compete on a level playing field.
Imagine how much competition there could be if, for example, Microsoft could operate a cross-platform games store (especially after consummation of its acquisition of Activision Blizzard) and offered not only its own titles but also apps from countless other developers--also addressing the problem of switching costs between mobile operating systems. That's not possible at the moment, but such a development could be one of multiple game changers in app distribution further down the road.
What's at stake for the economy and society dwarfs the €4.3 billion ($4.7 billion) fine Google is appealing. Android has 2.5 billion users in 190 countries.
I didn't attend the Google Android court hearing in late September and early October. All the information I have is hearsay, and I understand that wholesale affirmance of the Commission decision (which DG COMP achieved in the Google Shopping case in November (PDF)) is not a given. Observers whom I respect believe Google may be able to get at least a part of the Commission decision overturned. Also, either party can further appeal any unfavorable parts of a decision all the way up to the European Court of Justice, the upper chamber.
From what I heard, Google's lawyers, particularly Garrigues partner Alfonso Lamadrid de Pablo, delivered an incredible performance in September. I disagree with them on a number of questions, but I have the greatest respect for the quality of their work. It goes without saying that this applies to Google's antitrust counsel of choice in Brussels, Cleary Gottlieb's Maurits Dolmans. But companies and industry groups complaining about Google's conduct and supporting the European Commission also have absolutely great lawyers on their side, such as the aforementioned Professor Thomas Hoeppner ("Höppner" in German). One of Google's most forceful adversaries in the EU is Professor Damien Geradin, founding partner of Geradin Partners. His associate Dimitrios Katsifis authored this detailed blog post on the Google Android hearing, toward the end of which he clarifies he has advised clients on Google antitrust issues other than the ones in the Google Android case.
I wish the Commission and its intervenors luck. At a minimum I hope, as an app developer, that the findings relating to the Play Store will be upheld. But as I wrote further above, the upcoming ruling is hardly going to be the end of the process at any rate.
From an app distribution antitrust point of view, another key date is just about a week away: on March 24, Apple will file its answer to Epic's Ninth Circuit appellate opening brief and some powerful amicus briefs supporting Epic Games, such as the one submitted by the DOJ in the name of the United States of America (formally in support of neither party, but practically benefiting Epic and only Epic), one by 35 state attorneys-general (the same states that are suing Google in the aforementioned case, minus California, which is however widely expected to throw its weight behind the cause when it files its amicus brief on March 31 (after the other states because California is naturally very interested in the part of the case involving its state Unfair Competition Law), and a group of law professors led by Mike Carrier and including "the Dean of American Antitrust Law" Herbert Hovenkamp.
Epic's appeal is very much alive, and without that outpouring of governmental support it would be a long shot at best, but make no mistake: regardless of that support from amici, the hurdle is still very high, and just like Epic and its supporters portrayed the district court's factual findings as allowing only one legal conclusion, Apple will be at least equally selective and point to factual findings that it will claim support the lower court's decision. I agree with Epic to a greater extent than I do with Apple, but U.S. antitrust law and some of Judge Yvonne Gonzalez Rogers's factual findings make it anything but unlikely that Apple may defend its first-round victory and even get the California UCL part (Epic's consolation prize) reversed. Just being realistic, like in the Dutch App Store antitrust case.
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