On 2 July 2026, the European Court of Justice (ECJ) delivered its judgment in Google Android, upholding the General Court ruling which largely confirmed the European Commission’s landmark 2018 abuse of dominance decision.
In 2018 the Commission found that Google had imposed unlawful preinstallation and licensing restrictions on Android OEMs and MNOs, reinforcing its dominance in general search. The Commission found abusive restrictions across three types of agreements between Google and OEMs/MNOs which, together, constituted a single and continuous infringement:
- Mobile Application Distribution Agreements (MADAs): access to the Play Store was tied to the preinstallation of Google Search and Chrome, giving rise to two distinct tying infringements.
- Anti-Fragmentation Agreements (AFAs): preinstallation of the Play Store and Google Search was conditional on OEMs agreeing not to sell devices running incompatible Android forks, ie versions of Android that did not comply with Android baseline compatibility standards.
- Revenue Share Agreements (RSAs): portfolio-based revenue share payments to OEMs and MNOs were conditional on no preinstallation of competing general search services, treated as exclusivity payments.
On appeal, the General Court largely upheld the Commission’s decision, annulling only the RSAs abuse—finding the Commission had failed adequately to assess market coverage and had erred in its as-efficient competitor (AEC) analysis—while upholding the single and continuous infringement finding. Google appealed to the ECJ. In June 2025, Advocate General Kokott recommended dismissal in its entirety.
In dismissing Google’s appeal, the ECJ adopted much of the reasoning of Advocate General Kokott. The judgment clarifies several fundamental points of law which are central to the assessment of exclusionary abuses.
Key findings of the ECJ
Causality and the counterfactual
Google argued that the Commission was required to undertake a counterfactual analysis, ie examine what competition would have looked like absent the contested conduct. It said that the MADA preinstallation conditions were the non-monetary consideration it received for providing Android OS and Google apps for free to OEMs and that the Commission should therefore have examined whether its Android open licensing model would have been viable absent the preinstallation conditions.
The ECJ rejected this argument. While the Commission was required to establish a causal link between the contested conduct and the anticompetitive effects, a counterfactual analysis was not mandatory under Article 102 TFEU. Endorsing Advocate General Kokott’s opinion, the court held that a counterfactual analysis is one tool among many that can be used to establish whether conduct is capable of restricting competition, and it is not required in all cases.
Exclusionary effects and the ‘as-efficient competitor’
Google argued that the Commission was required to establish that the MADA preinstallation conditions were capable of foreclosing as-efficient competitors, as it had done (albeit imperfectly) with the RSAs.
The court rejected this argument. In doing so, it recalled the legal framework for assessing alleged abusive exclusionary practices. To prove an abusive exclusionary practice, a competition authority must show both (a) that the conduct falls outside competition on the merits and (b) that it is capable of producing exclusionary effects. The court then confirmed that condition (a) is in principle satisfied for tying and that no assessment of effects on an AEC is required. The Commission must, however, still establish that the conduct is capable of producing exclusionary effects.
The court went on to confirm that while admittedly the objective of Article 102 TFEU is not to protect less efficient competitors, it does not follow that an assessment of the conduct’s capability to exclude an AEC is required in all cases. There will be situations where it is not possible to base the analysis of exclusionary effects on whether an AEC could replicate the conduct, in particular where the allegedly abusive conduct has the effect of impeding potentially competing undertakings from even entering the relevant market and in so doing, prevents the growth of competition to the detriment of consumers.
The annulled RSA abuse and the single and continuous infringement finding
The court rejected Google’s argument that the General Court erred in upholding the single and continuous infringement finding while annulling one of its constituent elements, the RSA abuse.
The court confirmed that the RSA abuse was severable from the Commission decision and therefore the single and continuous infringement finding stood. Each abuse was separate and autonomous, so annulment of one did not call into question the abusive nature of the rest. Further, annulment of the RSA did not undermine the finding of an overall strategy covering the remaining abuses, and the General Court was entitled to still take account of the RSAs as relevant contextual elements.
What now?
There is a huge amount to digest in this judgment. Authorities, practitioners and academics alike will be grappling with its implications in the coming weeks and months. Some key questions to resolve will include:
- How do you reconcile the court’s express recognition that the analysis of exclusionary effects must always be made in light of all the relevant factual circumstances with its conclusion that the Commission was not required to consider the Android free licensing model as a whole (since a counterfactual analysis was not mandatory)? This can be contrasted with Qualcomm, where the Commission decision was annulled for failing to take account of all the relevant circumstances, including that the relevant customer had no viable alternative to Qualcomm’s chipsets and would not have dual sourced in a counterfactual.
- Many in the competition community would have considered that whether exclusionary conduct is abusive depends on its capability to exclude an AEC. The court is also clear in its case law that not every exclusionary effect is necessarily detrimental to competition (Intel). This judgment calls that into question. How then should you delineate between foreclosure and anticompetitive foreclosure, if not by reference to capability to exclude an AEC?
- Does the ECJ conflate an AEC analysis with replicability? An AEC analysis asks whether an AEC can profitably compete despite the conduct while replicability asks whether an AEC could replicate the conduct. Replicability is one means of assessing whether conduct is capable of excluding an AEC, but it does not necessarily follow that, where a replicability assessment is not appropriate, an AEC analysis can be dispensed with altogether.
What is clear is that the judgment brings to a close more than a decade of EU scrutiny of Google’s contractual restrictions on Android MNOs and OEMs. It also clears the way for the Commission’s revised exclusionary guidelines expected in Q3, and may be viewed as a tentative endorsement of the Commission’s attempt to row back on its ‘more economic approach’. That said, there are signs that the Commission has taken on board some of the criticisms of its earlier draft guidelines. It has indicated it will revisit its proposed removal of the 40% market share ‘soft safe harbour’ for dominance, and recent comments from Anthony Whelan, Director-General for Competition suggest that concerns about excessive reliance on presumptions will also be addressed.
Gerwin Van Gerven is a Partner at Linklaters LLP.
William Leslie is a Partner at Linklaters LLP.
Rachel Malloch is a Managing Associate at Linklaters LLP.
Thomas Reyntjens is a Managing Associate at Linklaters LLP.
Anna Kennedy is a Trainee Solicitor at Linklaters LLP.
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