On April 27, 2021, the Italian Competition Authority (the “ICA”) imposed a fine of €102 million on Alphabet Inc., Google LLC and Google Italy S.r.l. (together, “Google”) for an alleged refusal to allow an electric vehicle (“EV”) charging app developed by Enel X (named “JuicePass”) to be published on Google’s Android Auto platform.[1]

The complaint

In May 2019, following a complaint submitted by Enel Italia S.r.l. (together with the other companies belonging to the Enel group, “Enel”), the ICA opened an investigation into Google’s conduct.

In its complaint, Enel argued that Google was violating Article 102 TFEU by refusing with no objective justification to render Enel’s JuicePass app interoperable with the Android Auto platform. JuicePass is an app that provides services related to EV charging, such as: searching for charging stations; navigating to the charging station of choice; and booking, managing, and paying for charging sessions. The Android Auto platform is Google’s application that allows drivers to display some apps on their Android-based smartphone on their vehicle’s embedded screen, in order to safely use those apps while driving.

After an investigation lasting almost two years, on April 27, 2021, the ICA found that Google had abused its dominant position on the markets for the licensing of smart mobile operating systems (“OS’s”) and for Android app stores, in violation of Article 102 TFEU (the “Decision”).

The Decision

(i) The upstream relevant markets

In the Decision, the ICA identified two upstream relevant markets, in line with the position adopted by the European Commission (the “Commission”) in Case AT.40099 – Google Android:[2] (1) the worldwide market (excluding China) for the licensing of smart mobile OSs, where Google is active through Android; and (2) the worldwide market (excluding China) for Android app stores, where Google is active through Google Play. In the ICA’s view, Android and Google Play constitute the necessary prerequisites for the operation and development of Android Auto (as well as for the distribution of the apps available on Android Auto). According to the ICA, Android Auto is Android’s extension for the car environment, intended to allow apps (developed according to templates defined by Google) to be used through a car’s infotainment system with a simplified and limited user experience, with a view to reducing driver distraction and ensuring the safe use of supported apps while driving.

In addition, the ICA emphasized that, in light of the importance of Google’s products for app distribution, Google allegedly holds a “gatekeeper” position, as it is a “gateway” for app developers to reach end users. The ICA based its allegation on the fact that, in order to be published on Android Auto, an app must be developed on the basis of specific programming tools exclusively defined and made available by Google (i.e., templates).

(ii) The downstream competitive space and the alleged competitive relationship between EV charging apps and navigation apps

The ICA also referred – at the downstream level – to a “competitive space” including both EV charging apps (such as JuicePass) and navigation apps (such as Google’s proprietary navigation app, Google Maps, which – unlike JuicePass – is available on Android Auto). In the ICA’s view, both types of apps offer services used for EV charging (although EV charging apps are specialized, while navigation apps have a generalist approach), thereby competing with each other. In particular, the ICA held that there is a competitive relationship between the above-mentioned apps in light of the following findings:

  • actual competition, because both types of apps have search and navigation functions related to EV charging stations;
  • potential competition, because navigation apps could potentially expand their functions related to EV charging, with the possibility to completely replace EV charging apps. In this regard, the ICA held that it was reasonable to assume that Google would in the near future integrate booking and payment functions into the Android Auto-compatible version of Google Maps, based on evidence of Google’s increased interest in the EV services sector; and
  • competition for the relationship with users of EV charging services and, ultimately, for the data generated by such In the ICA’s view, in the case of both intermediation and complete substitution of EV charging apps by navigation apps, mobility service providers and charging point operators (such as Enel, which is active in both capacities) would depend on navigation apps to access fundamental data for the purposes of their business activities.

(iii) The refusal to deal

The ICA found that Google had abused its dominant position by failing to implement appropriate technical solutions to allow interoperability of JuicePass with Android Auto, despite Enel’s repeated requests and Android Auto’s indispensability to conveniently reach end users.

In this regard, the ICA held that Google should have alternatively:

developed a template to accommodate Enel’s request (while, at the time of such request, the only templates for Android Auto-compatible apps were for media and messaging apps);

developed a custom app especially for Enel; or

allowed Enel to publish a version of JuicePass based on voice commands (and, accordingly, safe to use while driving).

In light of the competitive relationship between JuicePass and Google Maps, the ICA held that Google’s refusal had an exclusionary intent, as it was allegedly aimed at hindering and delaying JuicePass’s availability on Android Auto to favor Google’s own proprietary navigation app.

In addition, the ICA maintained that there was no objective justification for Google’s refusal to publish JuicePass on Android Auto, as the contested conduct was based on Google’s discretionary business choices regarding its publishing policy for Android Auto.

Finally, according to the ICA, the fact that, during the proceedings, Google had developed templates for Android Auto-compatible navigation and EV charging apps, which allowed developers to publish beta versions of their apps on Android Auto, was irrelevant for the purposes of its assessment, as beta versions are intended for a limited group of users (willing to participate in this form of testing). Accordingly, the ICA held that Google’s abusive conduct started from its first rejection of Enel X’s request (in September 2018) and was still ongoing.

(iv) The exclusionary effects

Taking into account the presence of network effects and the risk of winner-takes-all phenomena, the ICA held that Google’s refusal to allow JuicePass to be published on Android Auto could lead to the definitive exclusion of Enel X from the EV charging sector. This was particularly the case, in the ICA’s view, due to the fact that the EV market in Italy is on the verge of significant growth, which is a crucial period for JuicePass to build its user base.

(v) Fine and obligations imposed on Google

With regard to the calculation of the fine, the ICA held that the turnover figures provided by Google (according to which its open source OS Android did not generate any revenue) did not adequately reflect Android’s contribution to Google’s overall turnover. As a consequence, the ICA decided to set the amount of the fine on the basis of an estimate of the relevant turnover, pursuant to paragraph 9 of the ICA’s guidelines on the method for setting antitrust fines.

In addition, the ICA imposed on Google behavioral obligations aimed at restoring a level playing field in Android Auto with regard to EV charging apps. To this end, the ICA ordered Google to release without delay the final version of the template for EV charging apps, after having possibly completed it to include all the features considered essential by Enel X (namely, booking and starting charging sessions). The ICA also requested to appoint a monitoring trustee to supervise Google’s activities and report to the ICA.

[1]      ICA Decision of April 27, 2021, No. 29645, Case A529, Google/compatibilità app Enel X Italia con sistema Android Auto.

[2]      Commission Decision of July 18, 2018, No. 4761, Case AT.40099, Google Android.