In 'Meine Akten' einfügen
Dr. Inge Graef is Assistant Professor at the Tilburg Institute for Law, Technology and Society (TILT) and the Tilburg Law & Economics Center (TILEC).
Dr. Inge Graef
Days before Google got slammed with a record fine for restrictions imposed within its Android mobile operating system, it was announced that rival app store Aptoide had filed a complaint to the European Commission for yet another alleged anticompetitive practice. According to Aptoide, the antivirus and security system Google Play Protect nudged users to abandon the Aptoide app store on Android devices by sending out a warning that the program could download harmful apps. Even on devices of users that ignored the notification, the Aptoide app store reportedly no longer worked and could not install apps anymore. Aptoide disputes that its app store is unsafe and argues Google’s ‘really aggressive’ behaviour violates competition rules.
The complaint can be put in the broader context of the ongoing strive of small developers who are dependent on Google for reaching consumers to increase their chances to compete. Aptoide had already filed another complaint against Google in 2014 for allegedly hindering users to install third-party app stores in Android. Similarly, Disconnect complained to the Commission in 2015 about Google removing its app that protects users against invisible tracking and malware distributed through advertisements from the Google Play Store. Google motivated the removal by stating that its terms and conditions have always prohibited developers from using Play Store to distribute apps that interfere with other apps. Such complaints by which developers aim to expand possibilities to operate their activities in the Google environment raise questions about the boundaries of competition law and the objectives of the regime.
While dominant undertakings are under a special responsibility to ensure that their conduct does not restrict competition (Michelin, par. 57), the obligations to which such undertakings can be put under competition law are not unlimited. In particular, dominant firms are not subject to a general duty to keep their competitors on the market. As noted by Advocate General Jacobs in Bronner (par. 56-57), the interference of competition law with the generally recognized principles to choose one’s trading partners and to freely dispose of one’s property requires careful balancing. The notion of ‘competition on the merits’ is often used in this context to distinguish ‘normal’ competitive behaviour from conduct that restricts competition. As clarified by the Court of Justice, ‘not every exclusionary effect is necessarily detrimental to competition’ and ‘competition on the merits may, by definition, lead to the departure from the market or the marginalisation of competitors that are less efficient and so less attractive to consumers’ (Post Danmark I, par. 22).
As such, a dominant undertaking cannot be forced to undercut its own business in order to help specific competitors to remain on the market. There is wide consensus that the objective of competition law is to protect competition, and not to protect the interests of individual competitors.
As Google’s business model relies on monetizing user attention through advertising offered within its ecosystem, its interests certainly contradict with that of developers offering alternative app stores, like Aptoide, that steer users away from the Google environment. However, it is another question whether the competition rules can and should be construed in such a way as to give rise to a duty to assist competitors to succeed on the market, especially when this may result into the dominant firm foregoing part of its profits. It is clear that Google’s behaviour harms the market position of Aptoide, but this does not necessarily result into abuse of dominance unless its conduct harms competition as such through, for instance, tying or refusing to deal.
It is true that the Google Shopping decision establishes a more general duty of non-discrimination for dominant undertakings to give equal treatment to rivals (at least if upheld by the EU Courts), but the Aptoide case is more complicated as Google’s concern about the security of third-party app stores seems legitimate and may thereby constitute an objective justification for Aptoide’s removal from the Play Store. A dominant undertaking is entitled to protect its commercial interests and the protection of users against malware would seem to fall within that ambit. In particular, a dominant firm has ‘the right to take such reasonable steps as it deems appropriate to protect its said interests’ (United Brands, par. 189), so that there is limited room for competition authorities to second-guess the appropriateness of the course of action chosen by the undertaking.
The Commission has recently adopted a proposal for a Regulation on fairness and transparency in the online platform economy that targets potentially harmful trading practices beyond competition law. The proposal mainly seeks to address the dependence of businesses on online platforms through imposing obligations of transparency but does not establish what constitutes ‘unfair’ behaviour. The new rules have an objective different from that of competition enforcement and will offer additional protection to businesses, including developers. However, platforms will remain able to protect their own commercial interests by engaging in legitimate business behaviour so that disputes like the one of Aptoide continue to require a careful balancing of interests.