The latest episode of “Fierce Competition” takes listeners inside a decade-long EU dispute over mobile operating systems, app pre-installation and anti-fragmentation agreements. Antitrust/competition attorneys Bill Batchelor, Antoni Terra and Jacqueline Arena discuss how the European Court of Justice’s judgment in Google Android deals with tying and what the court’s approach to counterfactual analysis and the as-efficient competitor test may mean for exclusionary conduct standards in digital markets and beyond going forward.
After a decade of litigation, the Court of Justice had every opportunity to say plainly whether pre-installation, by itself, is tying in an age of app stores. It declined. Bill Batchelor and fellow Skadden antitrust/competition partner Antoni Terra join host Jacqueline Arena to unpack the Google Android judgment: why the commission need not run a counterfactual analysis, how revenue sharing agreements can still form part of the factual context even when they are not themselves found abusive and the contentious paragraph suggesting tying can be an abuse without any as-efficient-competitor test. Jacqui also tracks related Google proceedings and regulatory developments in Australia, the U.S. and across APAC. Tune in for what a Commission-friendly ruling means for compliance and defense strategy in digital markets.
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