The verdicts are damning.
Europe’s top court recently rejected Apple’s challenge to EU rules that designate its app stores and iOS operating system “gatekeepers.” It upheld the European Commission’s record €4.1 billion antitrust fine against Google for abusing its Android market dominance, and backed a €2.4 billion penalty against the search company for unfairly favoring its own comparison shopping services.
The significant losses send an important signal: Silicon Valley should not count on Luxembourg-based judges to dilute European antitrust enforcement. Historically, judges required exhaustive, case-by-case proof that specific behavior directly harmed consumers. They accepted tech companies’ defenses that consumers preferred bundled services or lock-ins, and overturned significant regulatory fines.
But the Android and Apple decisions reject this logic. Competitor access is prioritized over user convenience. Rather than requiring long, detailed investigations into market dominance, the judges are endorsing the Digital Market Act’s preemptive rules. Regulators no longer need to prove a tech giant did something wrong; they are empowered to force “gatekeepers” to give competitors access to their operating systems and app stores in advance.
The judgment could “bolster enforcement of abuse of dominance rules in the digital sector,” argues law firm Skadden Arps in a note on the Android case. It calls into question “common practices in the digital sector, including pre-installation, app bundles, and anti-fragmentation agreements.”
That’s a shift. The Court was long skeptical about at least some of Europe’s tech crackdown. In 2022, it voided a €997 million fine against chipmaker Qualcomm, lambasting regulators for making massive procedural errors. That same year, it annulled a €1.06 billion fine against Intel for predatory pricing.
Two years later, judges annulled a €1.49 billion antitrust fine on Google’s advertising business. The Court ruled that the Commission “erred in law” because it failed to evaluate how long those contract clauses lasted and whether they genuinely locked out competitors.
The “decision underscores the high standard of proof required to establish exclusionary conduct,” commented Sarah Jordan and Anuj Ghai, partners at the Goodwin law firm, after the Google annulment. “While the Commission and other antitrust agencies will continue to scrutinise such practices, the judgment shows that regulatory decisions can be successfully challenged if there are evidentiary shortcomings.”
The judges also initially seemed skeptical about the Brussels crackdown on tech taxation, designed to stop multinational companies from shifting profits from a high tax jurisdiction to a low one. Amazon successfully defended its tax arrangements in Luxembourg in 2021, and Apple won a 2020 case over its Irish taxes.
But the pendulum now seems to be shifting. In 2024, judges reversed the lower court decision and ordered Apple to pay €13 billion in back taxes to Ireland. Those landmark decisions signal a harsh stance on sweetheart tax deals. The court’s decision “marks an important victory for the European Commission and is a significant development in the European Union’s efforts to tackle aggressive tax planning,” argued Oana Popa of the International Bureau of Fiscal Documentation.
The court is also backing new, controversial changes to tech antitrust. Regulators no longer wait to prove monopolistic harm after it has occurred. Instead, judges are validating the DMA that establishes upfront compliance “rules of the game” for designated tech “gatekeepers”.
The DMA represents a fundamental pivot “from market oversight to market ordering,” says Carmelo Cennamo of the University of Copenhagen. It is not about traditional anticompetitive conduct, nor about (digital) markets; it is largely about preserving the “health” of digital ecosystems!”
Court rulings follow this change, shifting focus from protecting individual competitors to aggressively protecting “competition.” The court is upholding European mandates forcing tech giants to open their closed app stores and operating systems to third-party developers.
Another test looms. The Commission has appealed the court’s 2024 annulment of its €1.49 billion Google AdSense fine. It’s the last major tech antitrust case from the last decade to make its way to the top of the European court system.
At the same time, the European Commission is drafting new guidelines on what lawyers term exclusionary abuse: when a dominant company uses its massive market power to unfairly block, hinder, or remove competitors, rather than competing on the merits of its products. If judges overrule the earlier annulment against Google, it will represent yet another sign of the changing winds in the Luxembourg court — and encourage European regulators to expand their tech crackdown.
William Echikson is a Brussels-based Senior Fellow at CEPA and editor of the Bandwidth Blog.
Bandwidth is CEPA’s online journal dedicated to advancing transatlantic cooperation on tech policy. All opinions expressed on Bandwidth are those of the author alone and may not represent those of the institutions they represent or the Center for European Policy Analysis. CEPA maintains a strict intellectual independence policy across all its projects and publications.
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