Help Without Borders: How the Google Android Case Threatens to Derail the Limited Scope of the Obligation to Assist Competitors

Abstract

The Google Android case concerns the conditions under which Google makes some of its applications (“Google Apps,” e.g. Play, Maps etc.) and the Android operating system available to manufacturers of mobile devices and mobile operating systems (OEMs). The European Commission alleges tying/bundling arrangements among Google Apps, and between Google Apps and Android, and also an exclusivity requirement that OEMs that want to adopt Google Apps do not develop forked versions of Android.

Normally, such practices likely result in an anticompetitive finding, because they disadvantage competitors and ultimately limit consumer choice. But unlike previous case law, the Google Android situation involves a novel coöpetitive relationship between Google and other app providers, which affects the legitimacy of the tying and exclusivity restrictions. In a coöpetitive, rather than purely competitive relationship, the firm is already assisting competitors succeed in the market, and therefore a certain measure of restrictions is more justified to allow the firm to compete on the merits. Imposing the same standards of competitive relationships to coöpetitive relationships would force the challenged firm to assist competitors more than competition law traditionally requires.

Keywords: Google, Android, tying, bunding, refusal to deal, refusal to supply, coopetition, coopetitive, obligation to help, obligation to assist