The judgment of the Court of Justice of the European Union (CJEU) in Case C‑233/23 Alphabet and Google v AGCM (Android Auto) (the ‘Judgment’) may seem like the only possible outcome in light of recent case law on Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU), as had already been anticipated by Advocate General Medina in her elegant opinion (the ‘Opinion’—discussed in a previous post). However, the way in which the Italian Council of State referred the questions, which had to be reformulated (Judgment, paras 33-36; Opinion, para 26), and, for instance, the draft guidelines on exclusionary abuses (particularly paras 96 or 163, discussed here and here), and the ensuing discussion at the 13 February workshop for that matter, show that surprising hesitation still remains in embracing the analytical framework developed in case law. This opportunity might have been taken by the Court of Justice to raise the bar for finding a refusal to deal to be prima facie legitimate.
Continue reading “Android Auto (C-233/23): Beyond stating the obvious?”