INDISPENSABILITY OF ANDROID AUTO
Android Auto is an extension of the Android mobile operating system—owned by Google—that allows drivers to use certain apps safely while driving (i.e., hands-free and without stopping the car) via the display, wheel, and voice controls embedded in most cars. However, for an app to be compatible with Android Auto and published on the related specialized app store, it must be developed following specific “templates” (that only Google can provide) and inclusion is subject to Google’s approval since the app must pass tests to ensure compatibility with the cars’ systems and dispel driving safety concerns. Android Auto is therefore a sub-platform of Android that connects app developers with car manufacturers (OEMs) and drivers. The AGCM relied on this information and previous decisions rendered by the European Commission against Google to determine that Google, through Android, is dominant in the market for licensable smartphone operating systems (as opposed to non-licensable operating systems, such as Apple iOS), and that the Android Auto is indispensable to car manufacturers and app developers attempting to reach drivers using Android smartphones. Notably, to support the indispensability of access to Android Auto, the ICA relied not only on information gathered from stakeholders and experts, but also on the recently developed notion of a “gatekeeper,” as defined in the draft proposal for the Digital Markets Act (currently subject to discussion before the European Parliament), and the alleged “impossibility” of effectively competing against such gatekeepers, namely Android.
JUICEPASS AND ITS (ALLEGED) COMPETING RELATIONSHIP WITH GOOGLE MAPS
The JuicePass app, formerly named Enel X Recharge, was developed by the ENEL group, the former legal monopoly and incumbent of the electricity market(s) in Italy. JuicePass allows drivers to view and search for charging stations on a digital map (including information like type of outlet, outlet status, maximum deliverable power, availability, and so on), book a charging station, navigate routes to the selected charging station, and pay for the charging session. According to the ICA, JuicePass is in a (partial) competing relationship with Google Maps, though the latter provides general navigation functions and other ancillary services that do not focus specifically on charging electric vehicles. Furthermore, the ICA holds that the two applications compete on three levels: first, they can be deemed “actual” competitors with respect to functions that both Google Maps and JuicePass provide to users, i.e., searches for available charging stations on a map and navigation to the selected charging station; second, they are potential competitors, since Google Maps could also compete (in the near future) with JuicePass in providing other functions actually offered by JuicePass, such as booking and paying for charging directly through the app; third, the ICA points out that the two apps also compete, in more general terms and irrespective of the specific services offered, in attracting and building user loyalty to enhance the volume and value of the collected data, which in turn can be used to sell other services.
However, while there is an Android Auto–compatible version of Google Maps, there is no Android Auto version of JuicePass. Indeed, templates specifically designed to develop navigation and electric vehicle (“EV”) charging apps compatible with Android Auto are not currently available (a beta version only was offered to Enel after it initiated the proceedings with the AGCM). The only way for an EV charging app developer to be eligible for Android Auto is to establish a partnership with Google (as Kakao of South Korea did) and develop a “custom app” that requires specific investments and budget allocation from Google to find workable solutions. Right now, in addition to Kakao, Waze and Google Maps (both owned by Google) are the only navigation applications available for Android Auto.
GOOGLE’S ALLEGED REFUSAL TO INTEROPERATE
The entire case at hand revolves around Google’s alleged refusal to allow ENEL to develop a compatible version of the JuicePass app for Android Auto. However, Google argues that, first, it cannot be deemed a competitor of JuicePass since Google Maps offers general search and navigation services and not the full range of specialized services offered by JuicePass for EV charging. Hence, its logic goes, abuse pursuant to Article 102 TFEU cannot exist since Google is not active in the market where JuicePass operates. Secondly, Google argued that it has never refused to deal with ENEL, as it has always explained that it is simply impracticable in the short term to publish JuicePass on Android Auto due to the absence of a “template” that fits the type of services offered by JuicePass and has even proposed alternative solutions, which ENEL rejected. Creating a new template specifically for JuicePass or other similar apps would require the allocation of significant resources to a new program and Google has not budgeted for that. Google did propose alternative solutions to ENEL, including integrating JuicePass into Google Maps, but that did not include the core and distinguishing features of JuicePass services (like booking and paying for charging station spots). In any case, Google objected that it could not be obligated by third parties or competition authorities to make specific investments to develop partnerships or services that it does not already offer.
Nevertheless, the ICA believes that Google’s conduct toward ENEL is part of a broader commercial strategy aimed at preventing or excluding competition for users of its generalized search and mapping services (like Google Maps) from specialized search and navigation apps (like JuicePass). The ICA suggests that Google is also interested in accessing Enel’s vast data on charging infrastructure and on EV users’ behaviors and preferences in Italy to gain a preemptive competitive edge over ENEL X.
THE THEORY OF HARM DEVELOPED BY THE ICA AND THE REMEDIES IMPOSED UPON GOOGLE
The ICA thus held that Google’s refusal amounts to exclusionary conduct in violation of section 102 TFEU because it prevented the development of a product currently or potentially competing with Google Maps specialized in EV charging services, echoing the same rationale used in Microsoft[2]. At the same time, the ICA concluded that Google’s conduct is discriminatory because it unduly favors its own Google Maps services over those of competitors, and it invoked the need to preserve a level playing field between gatekeepers and competing app developers.
In the case at stake, according to the ICA’s findings, the exclusion of JuicePass from Android Auto could permanently jeopardize its chances of building a solid user base at a crucial time of significant growth in sales of EV, thereby impeding Google’s key current and potential competitor from developing specialized EV charging services. This is particularly true in a market where strong indirect network effects have been found to exist and a competing player could be permanently excluded from the market if it does not amass a large pool of users in a timely fashion. In addition, the exclusion of JuicePass from Android diminishes consumer choice and could influence the development of electric mobility during the crucial launch phase.. According to the ICA, Google granting more favorable treatment to its own app constitutes an abusive discriminatory practice in line with the one analyzed in the Google Shopping case,[3] where Google unduly favored its shopping comparison service on the general search page over alternative “vertical” providers of similar services.
THE PECULIARITY OF THE DECISION
That said, what is new and notable about this decison is that the ICA not only levied a monetary fine but imposed upon Google a set of remedies in the form of a burdensome “to-do list” involving obligations to allocate resources and investments to design and develop new service features. In other words, it did not limit itself simply to ordering Google to cease certain conduct (as one would expect based on precedents). Indeed, the ICA ordered Google to make available immediately to ENEL and other app developers a definitive (as opposed to beta) version of a template for programming EV charging apps that includes the whole set of search, navigation, and essential accessory services of JuicePass and that can interoperate with Android Auto. Further, Google will have to designate an independent “monitoring trustee” – subject to the ICA preventive approval – to monitor the effective and correct implementation of the remedies and report with the ICA. The monitoring trustee would also have the task to evaluate the adequacy of the technical solutions identified by Google.
[1] The Italian version of the decision can be found at this link.
[2] CJEU, September 17, 2007, Case T-201/04, Microsoft Corp. v Commission of the European Communities, ECLI:EU:T:2007:289.
[3] European Commission, June 27, 2017, Case – AT.39740, Google Search (Shopping).
