Antitrust Bites – Newsletter

AG Kokott’s opinion on Google’s abuse of dominant position in the Google Android case

On 19 June 2025, Advocate General Kokott delivered her Opinion in Case C-738/22 P.

The case concerned Google’s appeal against the 2022 judgment of the General Court of the EU, which had largely upheld the European Commission’s decision in the Google Android case.

The Advocate General proposed that the Court of Justice dismiss the appeal in its entirety and uphold the General Court’s ruling, finding that Google had abused its dominant position in the markets for mobile device operating systems and search services, in breach of Article 102 TFEU.

In 2018, following a four-year investigation, the European Commission fined Google EUR4.3 billion for pursuing a single and continuous strategy aimed at consolidating and exploiting its dominant position by imposing anticompetitive restrictions on device manufacturers and mobile network operators within the Android ecosystem.

The Commission specifically challenged practices including:

• granting the Play Store license – Google’s app store – conditional upon the pre-installation of Google Search and the Chrome browser;
• a prohibition on marketing devices running versions of the Android operating system not authorised by Google; and
• financial incentives offered in exchange for the exclusive pre-installation of Google’s search service.

Due to their common objective and interdependence, the Commission qualified these restrictions as single and continuous infringement.

In her opinion, AG Kokott first clarified that, in an appeal, the Court of Justice is competent solely to review matters of law, unless a manifest distortion of the facts by the General Court is demonstrated. Consequently, Google’s arguments – which, in AG Kokott’s view, essentially sought a re-evaluation of the evidence – should be declared inadmissible.

The Advocate General also rejected the appellant’s claim that each conduct should be assessed in isolation to determine its anticompetitive effects. She found the qualification of a practice as an abuse of dominant position under Article 102 TFEU must take into account all relevant factual elements of the specific case. Whether a given element derives from a practice that is itself characterised as abusive is irrelevant; what matters is that the various practices are closely intertwined and that their effects unfold in combination with each other.

Another key point in the opinion concerned the application of the as-efficient competitor test (AEC test). AG Kokott noted that, in the context of a digital ecosystem, it would be both unrealistic and unhelpful to compare Google’s position to that of a hypothetical as-efficient competitor, stressing that Google’s dominance and the resulting network effects gave it advantages – such as access to user data – that no competitor, however efficient, could match.

Finally, AG Kokott rejected Google’s claim that the Commission should have conducted a counterfactual analysis of how competition might have evolved in the absence of the contested conduct. In her view, where anticompetitive effects are clearly demonstrated, and in the context of highly complex and interdependent digital markets, it would be inappropriate to base the assessment on speculative assumptions about alternative scenarios that market participants might have pursued.

 

Anticompetitive agreements in the online food delivery sector: the EC sanctions a “no-poach” agreement for the first time

On 2 June, the European Commission concluded a proceeding initiated in July 2024, imposing a total fine of EUR329 million on two of the main European operators active in the online food delivery sector for having realized a cartel within the European Economic Area between 2018 and 2022. In particular, the two companies would have (i) concluded no-poach agreements; (ii) exchanged commercially sensitive information; and (iii) allocated geographic markets.

This is the first case in which the Commission applies a sanction in relation to no-poach agreements, which are agreements whereby employers commit not to hire employees of others, or not to actively solicit others’ employees by offering them job opportunities (see Antitrust Bites – May 2024).

According to what was reported in the press release related to such news, in July 2018, one of the two operators acquired a minority non-controlling stake in the other company, progressively increasing its stake until obtaining, in July 2022, sole control of the competing company.

In June 2022 and November 2023, the Commission carried out inspections at the premises of the two operators, formally opening the investigation towards them in July 2024.

As regards the so-called "no-poach" agreement, the Commission found that initially, the shareholders’ agreement signed when the first company entered the capital of the second company (through the above-mentioned minority non-controlling stake) included non-hire clauses limited to certain employees. Subsequently, this arrangement was extended until it became a general agreement not to actively solicit each other’s employees.

Regarding the exchange of commercially sensitive information, the companies involved would have shared information related, for example, to business strategies, prices, capacity, costs, and product characteristics, thus enabling the companies to align and influence their conduct in the market. Access to such sensitive information was already made possible from the moment the first operator acquired the afore-mentioned minority non-controlling stake in the capital of the second.

Finally, regarding the allocation of geographic markets, the two companies allegedly agreed to allocate the national online food delivery markets within the EEA, removing existing geographic overlaps, avoiding entry into their respective national markets, and coordinating which of the two should enter markets where the other was not yet present.

 

Draft annual law for competition 2025 was approved

On 4 June 2025, the Council of Ministers approved the draft annual Market and Competition Law for 2025.

Based on the available information, the draft consists of three chapters relating to:

• provisions on local public services;
• provisions on regional public transport and air transport services;
• further provisions on, among other things, consumer and market protection in the healthcare sector.

The provisions in the first chapter aim to strengthen monitoring for managing local public services, establishing a related system of penalties.

There are also provisions on electric charging stations. The provisions aim to ensure the electric mobility market develops efficiently and that there are competitive conditions for users of charging infrastructure services to encourage plurality of operators, incorporating the ICA’s recommendations from its AS2045 report.

With regard to regional public transport, provisions extend to regional public transport regarding both the transparency and recognition requirements for managing contracts for local public services. The draft also includes provisions applicable in the event of inefficient management of such services. It’s also expected that by 31 December 2026, the Transport Authority will adopt specific guidelines in the regional public transport sector aimed at improving the quality of procurement procedures.

Provisions are also envisaged to simplify administrative burdens for airport operators with low traffic thresholds in terms of annual passenger movements.

The draft also includes provisions to protect consumers and the market in the healthcare sector. The draft law introduces new penalties for the professional use of cosmetic products that don’t comply with labelling requirements and pose a risk to health.

Other provisions concern the acceleration of technology transfer. They require the Ministry of Enterprise and Made in Italy and the Ministry of University and Research to outline a strategic policy document on enhancing knowledge and technology transfer.

The draft law also addresses professional partnerships. It introduces provisions allowing partnerships to be dissolved if the professional partners don’t have enough shares to ensure they have a two-thirds majority in resolutions or decisions. But the professional partners’ shareholding can be re-established within a mandatory six-month time-limit. This is subject to the special provisions laid down in the regulations governing individual professions.

 

Online comparison: Council of State overturns ICA’s sanction on “Facile.it”

With judgment no. 4843 of 4 June 2025, the Council of State upheld the appeal lodged by “Facile.it” against the ruling of the Lazio Regional Administrative Court no. 9273/2023 and annulled the decision by which the Italian Competition Authority (ICA) fined Facile.it EUR7 million for two unfair commercial practices relating to comparisons and estimates in the financial and insurance sectors.

With the decision at issue in the administrative dispute in question, the Authority had sanctioned Facile.it – a company active in the comparison of offers in various sectors – on the grounds that, according to the ICA, the company had engaged:

• in misleading commercial practices, in that it had failed to provide clear information regarding (a) the possibility for credit institutions granting loans to modify the relevant economic conditions, with the result that those economic conditions would be different from those presented on Facile.it’s comparison platform; and (b) the nature of Prima Assicurazioni S.p.A. as an insurance intermediary;
• in an aggressive commercial practice, in that it had persistently offered users who had already refused it the option of combining loans with optional insurance cover through pop-ups and had also carried out sales calls through its call centres without consumers expressly requesting them.

The Council of State, upholding the objections raised by Facile.it against the ruling of the Lazio Regional Administrative Court, which had upheld the decision, considered, on the one hand, that the company had correctly provided consumers with all the necessary information regarding the comparison service offered and, on the other hand, that none of the activities carried out were such as to restrict users’ freedom of choice.

With regard to the practice deemed misleading by the ICA, the Council of State – given that Facile.it, through its platform, does not make a final offer but rather provides an indicative simulation of the economic conditions of the loan, subject to feasibility verification by the lender – ruled out that there had been any omission of information on the part of Facile.it, considering that, from the moment they first accessed the comparison platform, consumers were made aware (i) that Facile.it carries out a “quick simulation” of the various offers available on the market and (ii) of the nature of Prima Assicurazioni, i.e. an intermediary company that distributes the products of various companies.

The Council of State also ruled out the aggressiveness of the other practices contested by the ICA, considering that, on the one hand, the use of pop-ups to offer the option of taking out insurance with the loan did not constitute a form of invasive pressure, but rather a tool that allowed consumers to take advantage of a potentially useful service and, on the other hand, that telephone contact with individuals who had not explicitly requested to be contacted could not be considered unlawful in itself. On this last point, the Council of State noted that the customers themselves had entered their telephone numbers when filling in the form to request a quote on the Facile.it platform, so it could reasonably be assumed that they had accepted the possibility of being contacted.

In the analysis referred to in the judgment in question, the Council of State also highlighted the pro-competitive role played by Facile.it, which, by comparing the various offers available on the market to the benefit of consumers, allows them to immediately understand the market situation for the service in question.

 

ICA launches investigation into unfair commercial practices by two companies operating  “DeepSeek” AI model

On 16 June 2025, the ICA published a notice initiating an investigation into the conduct of two Chinese companies that jointly own and operate the AI model known as “DeepSeek”.

According to the notice of initiation, the companies carried out misleading commercial practices, in violation of Articles 20, 21 and 22 of Legislative Decree No. 206/2005 (Codice del Consumo), as they failed to inform consumers in a sufficiently clear, precise and intelligible manner that DeepSeek could create “hallucinations”. That is, the AI model could produce inaccurate, misleading or false information in response to a user’s query.

More specifically, the ICA noted that, in the dialogue boxes that pop up when using DeepSeek, there are no warnings about hallucinations, except for the statement “AI-generated, for reference only.” The Authority deemed this statement to be insufficient to provide users with adequate information, firstly because it is only in English, even though the users’ inputs are in Italian, and secondly because it appears to be too general.

According to the ICA, the lack of adequate information isn’t remedied by the acknowledgement of the risk of hallucinations in DeepSeek’s terms of use.  These terms can only be accessed through a specific search, as they’re available via a hyperlink at the bottom of the DeepSeek homepage. So users can only consult the terms of use if they choose to do so; they’re not made readily available when users are preparing to use the service.

According to the Authority, the failure to disclose sufficient information could influence users’ decision to choose DeepSeek’s services over those of its competitors. Although the service is free, this decision would still be commercial in nature. And the ICA believed that the commercial practices could also influence the decisions that users may take based on the mistaken assumption that the information obtained through the AI system is completely reliable.