The Notion Of Abuse After The Android Judgment (Case T‑604/18): What Is Clearer And What Remains To Be Clarified (I)
By: Pablo Ibañez Colomo (Chillin’ Competition)
The Android judgment was widely awaited, not only because of its implications for the Commission’s policy, but because the underlying legal issues were intriguing and, in many respects, completely new. It was anything but a run-of-the-mill tying case.
In its decision, the Commission ventured where it does so only rarely: the core of a company’s business model. It did not question a peripheral aspect of the company’s strategy, but the central mechanism through which it appropriated the value generated by its activity.
In addition, there were some practices (such as the so-called AFA) for which there were no obvious precedents (at least not in the context of Article 102 TFEU enforcement).
The General Court’s ruling had thus the potential to clarify (and address for the first time) a number of issues. The impression one gets is that only some of them have definitely become clearer, and confirm the trend of the past few years. Others (perhaps the most novel and exciting ones) might require additional fine-tuning…