Google fined EUR 102 million for abusing its dominant position in the Android Auto platform

Android Auto is a specific feature developed by Android, which allows end-users to interact with certain apps on their mobile devices while their vehicles are in motion, thus ensuring higher safety standards and reducing driver distractions. 

Android Auto operates largely based on Google Maps and on the data stored therein, allowing users to search for gas stations and electric charging points, as well as to obtain the relative directions to reach them. However, contrary to the system developed via JuicePass, it is not possible to book the electric charging point directly from the driver’s seat in order to ensure its availability before physically arriving there. 

Therefore, Google’s refusal to make JuicePass available to Android Auto users has been regarded by the ICA as an unjustified abuse of its gatekeeper role in relation to the Android Auto platform (also in light of the fact that Android is used on one third of smartphones in Italy), which represents, in the Authority’s view, the indispensable portal for the developers of those apps that are deemed to be used while driving. Indeed, the publication of a new app on Android Auto for the ICA only depends on Google’s business policy, while developers are left with no choice but to adapt to the technologic template developed by Google. 

The refusal to deal linked to the indispensable character of Android Auto seems to have been interpreted in an extensive way by the ICA. Indeed, contrary to the criteria established by the EU Court of Justice in the Bronner case, here an alternative “infrastructure” to Android Auto does exist, as JuicePass is available on Google Play. Yet, according to the Authority, the Android Auto platform still plays an indispensable role, due to the safety and more accessible standards it provides to drivers. The borderline between what constitutes the only possible alternative infrastructure, thus being indispensable under the Bronner criteria and warranting an obligation to deal, and what is simply more convenient for competitors (and so not warranting an obligation to deal) however still appears to be quite blurred. 

In particular, for the Authority, the excluding behaviour put in place by Google has violated Article 102 TFEU for the following reasons: 

• Having ignored the interoperability aspects between Android Auto and Juice Pass: the effective use of JuicePass indeed depends on the possibility to use it in an easy and secure way while driving, being its use when the car is not moving merely residual. Therefore, the success of the app will rely on its availability on Android Auto, the access to which can only be granted by Google, which has violated its special gatekeeper responsibility for app developers.
  
  
• Having favoured Google Maps and similar Google-owned apps over JuicePass, breaching the level playing field amongst these apps. Google has indeed created an unfair disparity of treatment between JuicePass and Google Maps in particular, at the detriment to consumers, who have been obliged to use the limited search and get direction services available on Google Maps, compared to the wider offer specifically developed for electric car drivers only accessible via JuicePass. In this way, the ICA also confirmed that generalist apps (like Google Maps) and specialist apps (like JuicePass) can be regarded as being competitors. 
  
  
• JuicePass’ exclusion from Android Auto for more than two years (as the first refusal from Google to Enel X Italia dates back to 2018) also allowed Google to build up a user-base for electric charging services on Google Maps, while impeding to do the same to Enel X Italia. This exclusion is considered by the ICA to have structural effects in the long term, leading not only to delaying a competitor’s entry into the market but potentially to its definitive exclusion from the market of apps related to electric charging services. At the same time, as the users are data sources, such delay has also prevented Enel X Italia from obtaining useful data for the development of the charging points network on Italian territory. 

Therefore, in the ICA’s assessment, Google’s behaviour has caused several anti-competitive effects, namely: preventing users from enjoying a wider and more complete service, dispersing the investments made by Enel X Italia to develop the JuicePass app, hindering the entry into the market of a new product for which a potential demand already exists, and blocking the acquisition of relevant input data that would have enabled Enel X Italia to develop dedicated commercial offerings and appropriate network infrastructure. This latter consequence has been judged with particular severity by the ICA, given that the relevant market of electric cars is a new growing sector, and the practical development of the relative charging infrastructure network can have a direct influence on the spread of electric vehicles and, ultimately, on the transition towards sustainable mobility. 

Besides applying a fine of EUR 102 million, the ICA also imposed behavioural commitments on Google. The commitments are aimed at ensuring that the level playing field among apps offering recharging services for electric vehicles is reinstated. In particular, Google will have to release a new template allowing the publication of these apps on Android Auto without undue delay, and, in any case, will have to make sure that JuicePass will be made available on the Android Auto platform. 

The nature of the commitments, going beyond the simple access obligation of making available a template that can be used by all app developers and being instead tailored to the need to ensure the specific publication of JuicePass on Android Auto, seems to suggest that the ICA has opted for a regulatory approach in the case at hand. By recognising the indispensable character of the Auto Android platform, it has indeed implicitly affirmed the need to regulate the nowadays established gatekeepers, thus somehow admitting that similar systems, developed by competitors, will not have a chance to develop and compete with them. In addition, by de facto entrusting all the app developers with the right to present on Android Auto (and possibly, other so-called GAFA’s platforms), the ICA is eliminating any differentiation between such platforms as users will possibly find the same set of Apps in front of them. As an unintended consequence, this could cause a reduction of dynamic competition between digital platforms in the long-term as any other obligation to deal which, in fact, should be cautiously imposed under antitrust law.

The question remains open though on whether such regulation can be pursued by the ICA itself in its role of antitrust enforcer ex post. Even more so, when applying ante litteram a legal definition, such as the gatekeeper’s one, which is still under legislative discussion at EU level in the framework of the Digital Markets Act (“DMA”) proposal. 

The ICA decision in any case confirms that Green Tech is clearly emerging as a trend topic in competition law enforcement, as it covers two crucial sectors for the application of competition law in the upcoming years: digital apps via which an increasing number of services are being offered to consumers, and sustainable development encouraged by the use of digital services.