Tilburg University Android and competition law Geradin, Damien; Edelman, Benjamin Published in: European Competition Journal DOI: 10.1080/17441056.2016.1254483 Publication date: 2016 Document Version Publisher's PDF, also known as Version of record Link to publication in Tilburg University Research Portal Citation for published version (APA): Geradin, D., & Edelman, B. (2016). Android and competition law: Exploring and assessing Google’s practices in mobile. 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Download date: 25. sep. 2021 European Competition Journal ISSN: 1744-1056 (Print) 1757-8396 (Online) Journal homepage: http://www.tandfonline.com/loi/recj20 Android and competition law: exploring and assessing Google’s practices in mobile Benjamin Edelman & Damien Geradin To cite this article: Benjamin Edelman & Damien Geradin (2016) Android and competition law: exploring and assessing Google’s practices in mobile, European Competition Journal, 12:2-3, 159-194, DOI: 10.1080/17441056.2016.1254483 To link to this article: http://dx.doi.org/10.1080/17441056.2016.1254483 © 2016 The Author(s). Published by Informa UK Limited, trading as Taylor & Francis Group Published online: 24 Nov 2016. Submit your article to this journal Article views: 624 View related articles View Crossmark data Full Terms & Conditions of access and use can be found at http://www.tandfonline.com/action/journalInformation?journalCode=recj20 Download by: [Tilburg University] Date: 02 August 2017, At: 04:28 European Competition Journal, 2016 Vol. 12, Nos. 2–3, 159–194, http://dx.doi.org/10.1080/17441056.2016.1254483 Android and competition law: exploring and assessing Google’s practices in mobile Benjamin Edelman a† and Damien Geradin b,c,d*† aAssociate Professor, Harvard Business School, Boston, MA, USA; bFounding Partner, EDGE Legal, Brussels, Belgium; cProfessor of Competition Law & Economics, Tilburg Law & Economics Center (TILEC), Tilburg University, Tilburg, The Netherlands; dVisiting Professor, University College London, London, UK (Received 2 October 2016; accepted 26 October 2016) Since its launch in 2007, Android has become the dominant mobile device operating system worldwide. In light of this commercial success and certain disputed business practices, Android has come under substantial attention from competition authorities. We present key aspects of Google’s strategy in mobile, focusing on Android-related practices that may have exclusionary effects. We then assess Google’s practices under competition law and, where appropriate, suggest remedies to right the violations we uncover. Keywords: Android; antitrust; competition policy; exclusion; mobile communication devices; remedies; tying JEL Classification: K21; L42; L41; L40; L99 Since its launch in 2007, Android has become the dominant mobile device oper- ating system (“OS”) worldwide. In 2015, there were more than 4.4 billion mobile phone users and 1 billion tablet users in the world,1 over 80% of which run Google Android.2 In light of this commercial success and certain disputed business prac- tices, Android has come under substantial attention from competition authorities. Downloaded by [Tilburg University] at 04:28 02 August 2017 For instance, in September 2015, Russia’s Federal Antimonopoly Service com- pleted an investigation finding that Google broke Russia’s competition rules by *Corresponding author. Email: [email protected] †The authors have no current clients adverse to Google with respect to the practices dis- cussed herein. No client of either author requested or suggested this article or had a right to review it prior to publication. 1‘Number of mobile phone users worldwide from 2013 to 2019,’ Statista, 2016; “Number of tablet users worldwide from 2013 to 2019,” Statista, 2016. 2‘Global mobile OS market share in sales to end users from 1st quarter 2009 to 1st quarter 2016,’ Statista, 2016. © 2016 The Author(s). Published by Informa UK Limited, trading as Taylor & Francis Group This is an Open Access article distributed under the terms of the Creative Commons Attribution-NonCommercial- NoDerivatives License (http://creativecommons.org/licenses/by-nc-nd/4.0/), which permits non-commercial re-use, distribution, and reproduction in any medium, provided the original work is properly cited, and is not altered, trans- formed, or built upon in any way. 160 B. Edelman and D. Geradin unfairly bundling its own services and preventing rival products from being installed on Android software.3 Then, in April 2016, the European Commission sent a statement of objections to Google indicating its preliminary view that Google had committed an abuse of a dominant position by imposing certain restrictions on Android device manufacturers and mobile network operators.4 The Korean Fair Trade Commission announced a similar investigation in August 2016,5 and the US Federal Trade Commission was reported in September 2015 to have begun investigating Google’s tactics in mobile6 despite the Commis- sion’s prior decision not to pursue Google’s disputed tactics in search and search preferencing.7 A recurring theme in these investigations is the concern that Google’s Android-related practices protect or enhance its position of strength in some key applications or services, Google Search among others, to the detriment of compet- ing app makers and service providers. We share this concern. As we show in this paper, Google’s practices can produce exclusionary effects on competing app makers and service providers. Of course, Google’s practices are unlikely to harm the thousands of firms or individuals developing apps that do not compete with Google’s. But these practices harm makers of apps that directly compete with Google’s key apps, including in the sectors most important to advertisers and most frequented by users. In particular, we show that Google’s restrictions imposed on manufacturers of commercially viable Android users would increase the difficulty of a new, innovative mobile search engine challenging Google Search and competing on the merits. Antitrust investigations are complex and fact-intensive, and thus the goal of this paper is not to offer a full antitrust analysis of Google’s Android-related prac- tices. Even if this were our aim, it would not be possible because most of the licences and other documents implementing the restrictions at issue are not 3Federal Antimonopoly Service of the Russian Federation, ‘FAS Russia Decision and Determination of 18 September 2015’, No 1-14-21/00-11-15. The Russian authorities also fined Google for its practices in mobile. See ‘Russian Antimonopoly Service Fines ’ Downloaded by [Tilburg University] at 04:28 02 August 2017 Google $6.7 Mln Russian Legal Information Agency (11 August 2016) <http://www. rapsinews.com/news/20160811/276651091.html>. 4European Commission, ‘Antitrust: Commission Sends Statement of Objections to Google on Android Operating System and Applications’ (20 April 2016, IP/16/1492) <http://www. ipeuropa.eu/rapid/press-release_IP-16-1492_en.htm>. 5Song Jung-a, ‘South Korea Confirms Google Antitrust Probe’ The Financial Times (12 August 2016) <http://www.ft.com/cms/s/0/59bd6b78-6044-11e6-b38c-7b39cbb1138a. html#axzz4Hn7Tu74P>. 6Brent Kendall and Alistair Barr, ‘FTC Looking at Complaints over Google’s Android Control’ The Wall Street Journal (25 September 2015) <http://www.wsj.com/articles/ftc- looking-at-complaints-over-googles-android-control-1443201867>. 7‘Statement of the Federal Trade Commission Regarding Google’s Search Practices’ The Federal Trade Commission (3 January 2013) <https://www.ftc.gov/system/files/ documents/public_statements/295971/130103googlesearchstmtofcomm.pdf>. European Competition Journal 161 public (although there are some notable exceptions which we examine in sub- sequent sections). This difficulty is compounded by the fact that there is to date only a single antitrust authority decision or court judgment assessing Google’s restrictions under antitrust rules. (Indeed, even that decision, by Russia’s Federal Antimonopoly Service, was until recently available only in Russian. Only in the course of this article did we obtain, and post to the web, an English translation.8) In light of these limitations, we use the available information to provide a critical analysis of some of the restrictions that apply to device manufac- turers that wish to develop commercially viable Android devices, and to assess the arguments offered by Google (including some of the papers Google has commis- sioned) to justify these restrictions.9 Undistorted competition in mobile environments carries special importance given the growing reliance of individuals on mobile communications devices, such as smartphones or tablets, as their primary