The court had scrapped the fine, but Google’s apparent victory may prove short-lived. An Advocate General now argues that the judges got the case wrong.
Google could once again face a fine of almost €1.5 billion for restricting competition in online advertising. Juliane Kokott, an Advocate General at the EU Court of Justice, has challenged a 2024 ruling that overturned the penalty. She recommends setting aside the judgment and sending the case back for a fresh examination.
In an opinion published on Thursday, Ms Kokott said the General Court had misjudged the evidence presented by the European Commission. She believes the Commission had sufficiently demonstrated that Google’s contractual terms could restrict competition in online advertising. The court therefore had no grounds to overturn its decision on that basis.
A seven-year-old case over online ads
The case concerns a fine imposed on Google by the Commission in March 2019. It found that the company had abused its dominant position in the online advertising intermediation market between 2006 and 2016. The Commission imposed a fine of almost €1.5 billion, with Google’s parent company Alphabet held jointly and severally liable for part of the amount.
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Google operates AdSense, an advertising platform that allows website owners to display adverts and earn a share of the revenue. Its AdSense for Search service places Google search adverts on third-party websites.
The Commission took issue with contractual terms Google imposed on website operators from 2009. Some restricted or banned adverts from competing services. Others dictated where adverts could appear or required Google’s prior approval.
The Commission concluded that these restrictions, taken together, amounted to an abuse of Google’s dominant position. Google challenged the decision before the EU General Court, which sided with the company in September 2024 and annulled the fine.
A question of evidence
The General Court faulted the Commission for failing to examine individual contracts in sufficient detail, particularly their duration and whether website operators could terminate them unilaterally.
Ms Kokott disagrees. She argues that the court focused too narrowly on individual agreements and overlooked their combined impact on the market. „It is sufficient, in principle, to take into consideration cumulatively all the contracts which are significant to the functioning of competition on the relevant market,“ Ms Kokott said in her opinion.
In her view, the Commission did not need to prove that each contract restricted competition on its own. It was enough to show that their combined effect could distort the market.
The dispute is far from over
An Advocate General’s opinion is not binding on the EU Court of Justice, although judges take such recommendations into account in most cases. The court is expected to rule on Google’s appeal next year.
Ms Kokott recommends setting aside the General Court’s ruling and sending the case back for a fresh decision. However, she does not believe the original €1.5 billion fine should be reinstated in full. She argues that it should be reduced because the Commission did not challenge the findings concerning the insufficiently established effects of Google’s contractual terms in 2016.
The AdSense penalty was one of six competition fines the EU has imposed on Google over nearly two decades. Together, they amount to €10.38 billion.
