On 13 May 2021, the Italian Competition Authority (ICA) fined Google for its refusal to publish an app developed by Enel X Italia ("JuicePass") on Android Auto allowing electric vehicle drivers to search and book an electric charging point while driving.
Android Auto is a specific feature developed by Android, which
allows end-users to interact with certain apps on their mobile
devices while their vehicles are in motion, thus ensuring higher
safety standards and reducing driver distractions.
Android Auto operates largely based on Google Maps and on the data
stored therein, allowing users to search for gas stations and
electric charging points, as well as to obtain the relative
directions to reach them. However, contrary to the system developed
via JuicePass, it is not possible to book the electric charging
point directly from the driver's seat in order to ensure its
availability before physically arriving there.
Therefore, Google's refusal to make JuicePass available to
Android Auto users has been regarded by the ICA as an unjustified
abuse of its gatekeeper role in relation to the Android Auto
platform (also in light of the fact that Android is used on one
third of smartphones in Italy), which represents, in the
Authority's view, the indispensable portal for the developers
of those apps that are deemed to be used while driving. Indeed, the
publication of a new app on Android Auto for the ICA only depends
on Google's business policy, while developers are left with no
choice but to adapt to the technologic template developed by
Google.
The refusal to deal linked to the indispensable character of
Android Auto seems to have been interpreted in an extensive way by
the ICA. Indeed, contrary to the criteria established by the EU
Court of Justice in the Bronner case, here an alternative
"infrastructure" to Android Auto does exist, as JuicePass
is available on Google Play. Yet, according to the Authority, the
Android Auto platform still plays an indispensable role, due to the
safety and more accessible standards it provides to drivers. The
borderline between what constitutes the only possible alternative
infrastructure, thus being indispensable under the Bronner criteria
and warranting an obligation to deal, and what is simply more
convenient for competitors (and so not warranting an obligation to
deal) however still appears to be quite blurred.
In particular, for the Authority, the excluding behaviour put in
place by Google has violated Article 102 TFEU for the following
reasons:
- Having ignored the interoperability aspects between Android
Auto and Juice Pass: the effective use of JuicePass indeed depends
on the possibility to use it in an easy and secure way while
driving, being its use when the car is not moving merely residual.
Therefore, the success of the app will rely on its availability on
Android Auto, the access to which can only be granted by Google,
which has violated its special gatekeeper responsibility for app
developers.
- Having favoured Google Maps and similar Google-owned apps over
JuicePass, breaching the level playing field amongst these apps.
Google has indeed created an unfair disparity of treatment between
JuicePass and Google Maps in particular, at the detriment to
consumers, who have been obliged to use the limited search and get
direction services available on Google Maps, compared to the wider
offer specifically developed for electric car drivers only
accessible via JuicePass. In this way, the ICA also confirmed that
generalist apps (like Google Maps) and specialist apps (like
JuicePass) can be regarded as being competitors.
- JuicePass' exclusion from Android Auto for more than two years (as the first refusal from Google to Enel X Italia dates back to 2018) also allowed Google to build up a user-base for electric charging services on Google Maps, while impeding to do the same to Enel X Italia. This exclusion is considered by the ICA to have structural effects in the long term, leading not only to delaying a competitor's entry into the market but potentially to its definitive exclusion from the market of apps related to electric charging services. At the same time, as the users are data sources, such delay has also prevented Enel X Italia from obtaining useful data for the development of the charging points network on Italian territory.
Therefore, in the ICA's assessment, Google's behaviour
has caused several anti-competitive effects, namely: preventing
users from enjoying a wider and more complete service, dispersing
the investments made by Enel X Italia to develop the JuicePass app,
hindering the entry into the market of a new product for which a
potential demand already exists, and blocking the acquisition of
relevant input data that would have enabled Enel X Italia to
develop dedicated commercial offerings and appropriate network
infrastructure. This latter consequence has been judged with
particular severity by the ICA, given that the relevant market of
electric cars is a new growing sector, and the practical
development of the relative charging infrastructure network can
have a direct influence on the spread of electric vehicles and,
ultimately, on the transition towards sustainable
mobility.
Besides applying a fine of EUR 102 million, the ICA also imposed
behavioural commitments on Google. The commitments are aimed at
ensuring that the level playing field among apps offering
recharging services for electric vehicles is reinstated. In
particular, Google will have to release a new template allowing the
publication of these apps on Android Auto without undue delay, and,
in any case, will have to make sure that JuicePass will be made
available on the Android Auto platform.
The nature of the commitments, going beyond the simple access
obligation of making available a template that can be used by all
app developers and being instead tailored to the need to ensure the
specific publication of JuicePass on Android Auto, seems to suggest
that the ICA has opted for a regulatory approach in the case at
hand. By recognising the indispensable character of the Auto
Android platform, it has indeed implicitly affirmed the need to
regulate the nowadays established gatekeepers, thus somehow
admitting that similar systems, developed by competitors, will not
have a chance to develop and compete with them. In addition, by de
facto entrusting all the app developers with the right to present
on Android Auto (and possibly, other so-called GAFA's
platforms), the ICA is eliminating any differentiation between such
platforms as users will possibly find the same set of Apps in front
of them. As an unintended consequence, this could cause a reduction
of dynamic competition between digital platforms in the long-term
as any other obligation to deal which, in fact, should be
cautiously imposed under antitrust law.
The question remains open though on whether such regulation can be
pursued by the ICA itself in its role of antitrust enforcer ex
post. Even more so, when applying ante litteram a legal definition,
such as the gatekeeper's one, which is still under legislative
discussion at EU level in the framework of the Digital Markets Act
("DMA") proposal.
The ICA decision in any case confirms that Green Tech is clearly
emerging as a trend topic in competition law enforcement, as it
covers two crucial sectors for the application of competition law
in the upcoming years: digital apps via which an increasing number
of services are being offered to consumers, and sustainable
development encouraged by the use of digital services.
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