The Court of Justice of the European Union has dismissed the appeal brought by Google LLC and Alphabet Inc. in Case C-738/22 P, upholding, in substance, the General Court’s judgment of September 14, 2022 (T-604/18) and confirming the €4.125 billion fine. This brings to a close one of the most significant EU antitrust proceedings against large technology platforms and consolidates a highly relevant line of case law for the application of Article 102 TFEU in digital markets.

The CJEU clarifies several substantive issues concerning the analysis of abuse of a dominant position, including the role of the economic context in assessing conduct and the limits of the as-efficient competitor test, or AEC test.

One of the most relevant aspects of the judgment is that it confirms that self-preferencing may constitute a form of abuse of a dominant position contrary to Article 102 TFEU where it produces exclusionary effects. In that sense, self-preferencing should be understood as favoring one’s own products or services over those of third parties by leveraging control over a platform on which the undertaking holds a dominant position.

Background to the dispute: the Commission’s 2018 Decision

The case originates in the European Commission’s Decision of July 18, 2018 in Case AT.40099 — Google Android, in which the Commission found that Google had abused its dominant position in relation to Android. The Commission considered that Google had designed and implemented a contractual strategy that protected and strengthened the position of its general search service, Google Search, and its browser, Chrome, thereby securing advertising revenues linked to internet searches.

The Decision identified four main sets of restrictions on competition in the form of contractual restrictions:

• Two sets of restrictions contained in Mobile Application Distribution Agreements, or MADAs, under which Google required original equipment manufacturers, or OEMs, to pre-install the Google Search app and the Chrome browser app in order to obtain a license to use the Play Store. This tying generated a self-preferencing effect.

Google thereby secured the pre-installed and default position of its services on millions of devices, while manufacturers avoided being excluded from the Google ecosystem and facing the commercial risk of placing on the market a device without the leading app store, which would have made it practically unsellable.

• Anti-Fragmentation Agreements, or AFAs, which prevented mobile device manufacturers from selling devices running versions of Android that had not been approved by Google.
• Revenue Share Agreements, or RSAs, which financially incentivized OEMs and mobile network operators, or MNOs, not to pre-install rival general search services.

According to the Commission, those practices formed part of a common strategy aimed at protecting Google’s position in mobile general search, which it characterized as a single and continuous infringement of Article 102 TFEU.

Proceedings at first instance before the General Court

In 2022, the General Court largely upheld the Commission’s approach, but annulled the Decision in part as regards a specific element of the revenue share agreements on the ground that the evidence was insufficient.

The General Court revised the amount of the fine and set it at €4,125,000,000, instead of the more than €4.343 billion initially imposed by the Commission.

The judgment preserved the central finding that Google had used the Android ecosystem as a vehicle to protect its dominant position in general search, and had done so through a contractual architecture that limited the real opportunities for rival services and devices to expand. The General Court had already emphasized in 2022 that the analysis under Article 102 TFEU cannot be carried out by artificially fragmenting each individual practice. The context in which the abuse takes place also includes complementary or interdependent behavior.

The appeal before the Court of Justice

The Court of Justice’s judgment of July 2, 2026 dismisses the appeal and the six grounds of appeal raised by Google and Alphabet. First, the appellants argued that certain contextual elements should not have been taken into account because they had not been characterized as autonomous abuses or did not form part of the core infringement. The CJEU rejects that approach. What matters is not whether each contextual element constitutes, in itself, an infringement, but whether it helps to understand how the conduct operates, what effects it produces, and how different practices reinforce one another.

As paragraph 191 of the judgment explains:

“…the taking into account of a factual element as a relevant contextual factor for the purpose of assessing the effects of conduct in the light of Article 102 TFEU does not depend on whether that element amounts to a behaviour that in itself is characterised as abusive. It is, in particular, a question of being able to assess in concrete terms whether the effects of the behaviour are amplified or, on the contrary, attenuated by the context in which that behaviour takes place.”

In digital markets, exclusionary strategies rarely rest on a single clause or on one isolated act. They more often involve combinations of technical design, contractual conditions, economic incentives, network effects, and advantages derived from default settings.

The as-efficient competitor test is not a universal requirement

The CJEU’s judgment is particularly important as regards the AEC test.

Google argued that the Commission could not consider exclusionary effects to have been established without proving that its conduct was capable of excluding an as-efficient competitor from the market. The CJEU rejects the proposition that the test is automatically required in every abuse case.

The Court emphasizes that there are contexts in which that analysis is not particularly useful, or may even be inappropriate, as can be the case in digital markets. This may occur where the structure of the market itself makes the entry, maintenance, or even emergence of an as-efficient competitor practically impossible, particularly in ecosystems characterized by significant barriers to entry and network effects.

Paragraph 273 of the judgment recognizes that, in certain digital markets, the authority or the court may assess anticompetitive effects without having to build the entire analysis around that test.

Structural bias and user choice

Another line of defense advanced by Google was that the high use of its services ultimately reflected users’ actual preferences or the superior quality of its products. The CJEU confirms that such an explanation cannot simply be presumed where it has been shown that pre-installation and default settings generated a status quo bias in favor of the dominant undertaking.

If the user chooses in an environment that is predisposed to favor a dominant undertaking, that choice is not the expression of a free and fully informed preference. The competitive advantage does not stem only from the merits of the product, but also from the architecture of the market. The CJEU accepts that quality matters, but that is not enough where user choice is structurally conditioned.

The Court thereby confirms that self-preferencing may harm competition not only where it excludes a rival, but also where it structurally conditions user choice and prevents competitors from accessing the market on equal terms.

Anti-fragmentation agreements are assessed by their foreclosure effects

Those agreements made the licensing of the Play Store and the Google Search app conditional on manufacturers agreeing not to sell any devices running non-approved versions, or “forks,” of the Android operating system.

The issue was not that Google sought to preserve a certain degree of technical compatibility within the Android ecosystem. The Commission had not claimed that any compatibility requirement was necessarily abusive. What was found to be unlawful was the use of those agreements to prevent certain manufacturers from marketing devices running non-approved versions of Android.

Google used that technical-contractual control in a functionally exclusionary way, and, in confirming the unlawfulness of the agreement, the Court of Justice places the emphasis on the specific competitive effects of that practice.

The CJEU also confirms the way in which the General Court exercised its unlimited jurisdiction to reduce and set the fine at €4.125 billion. Google and Alphabet challenged the reasoning underlying the recalculation and alleged procedural infringements. The Court of Justice rejects those arguments and endorses the approach followed in 2022.

Conclusion

The judgment does not significantly change Google’s practical position in the European Union, since the company had already been adapting its conduct for years following the 2018 Decision. However, it consolidates the analysis of abuses of a dominant position in digital markets and reaffirms an approach that combines attention to the economic context, flexibility in evidentiary tools, and consideration of behavioral biases affecting users.

The judgment is also relevant from the perspective of the Digital Markets Act, or DMA, which expressly prohibits gatekeepers, under Article 6(5), from favoring their own services over those of third parties in ranking and related presentation of results. Google was designated as a gatekeeper under the DMA in 2023, with Google Search included among the core platform services covered by that designation. Google Search is currently subject to non-compliance proceedings concerning self-preferencing under Case DMA.100193. These practices are therefore no longer analyzed solely through the lens of competition law but have also been incorporated into the DMA’s catalog of unfair practices. Nevertheless, this judgment may have a significant influence on how such conduct is interpreted and sanctioned under the DMA in the future.

The finality of the Commission’s 2018 Decision, following this judgment, also opens the door to potential follow-on damages actions by competing undertakings or end users who may have suffered harm as a result of Google’s abusive practices. Such claimants would not have to prove the infringement, since the final Decision is binding on national courts. They would only have to establish the harm suffered and the causal link with the abusive conduct.

In addition, pursuant to Article 74(3) of Law 15/2007 on the Defense of Competition, the limitation period was interrupted from the moment the European Commission began investigating Google for this conduct. That interruption will end one year after the Decision becomes final, that is, in July 2027, giving potential future claimants until 2032 to bring an action.

In short, the CJEU’s ruling in Android reinforces the idea that control of abuses of dominant position in digital markets cannot be based on automatic assumptions or overly rigid analytical frameworks. The Court recalls the need to consider the economic reality of the case, the structure of the market, and the specific way in which certain practices alter competition. With this judgment, self-preferencing becomes part of the EU competition law acquis as conduct that may be abusive when carried out by dominant operators in a market.