Tuesday, June 21, 2022

Antitrust investigation of Google Maps licensing terms for connected vehicles, other fields of use by Federal Cartel Office of Germany

There was a time when major Big Tech antitrust investigations were announced once every few years; then maybe a couple of times a year; and now it feels like hardly a week goes by without something popping up somewhere.

Today's news comes from the Bundeskartellamt (BKartA, Federal Cartel Office of Germany), which announced a "proceeding against Google for possible anti-competitive restrictions of map services (Google Maps Platform)."

The FCO will examine various aspects of Google's business practices relating to Google Maps. The preliminary assessment is that "Google may be restricting the combination of its own map services with third-party map services, for example when it comes to embedding Google Maps location data, the search function or Google Street View into maps not provided by Google." Andreas Mundt, the FCO's president, says his agency "will also look into the licencing terms and conditions for the use of Google’s map services in vehicles." I have no knowledge of automotive industry complaints, but would not be surprised in the slightest if German car makers had provided input to the FCO to instigate this investigation. Car makers are sometimes accused of, and even fined for, violations of cartel law, so they prefer to keep a low profile when complaining about others.

The FCO's press release says "Google makes the use of its services in vehicle infotainment systems subject to very strict terms of use applicable to its "Google Automotive Services" and suggests that this could raise particular concerns over restraints on competition. I have no doubt that the automotive aspect of the FCO's Google Maps investigation will be particularly key. There can be no connected vehicles without maps, and there can be no competitive market for location-based and other map-related services related to connected vehicles if the dominant map services provider abuses its power.

Just like the investigation of Apple's app tracking rules ("ATT") that the FCO announced last week, the Google Maps investigation is based on Section 19a GWB. The German legislature amended the country's competition law (GWB, Act Against Restraints of Competition) with special rules addressing gatekeepers (Section 19a) entering into force at the beginning of last year.

Arguably, Section 19a is a bit of a precursor to the rules that gatekeepers will have to respect under the European Union's Digital Markets Act (DMA) in the future. EU Council diplomats held an informal vote on the DMA last month. The bill will be adopted by the European Parliament before the summer (the plenary debate will take place on July 4--Independence Day), and then (formally) by the EU Council, where the outcome is clear given last month's legally non-binding, but politically decisive vote.

Once the DMA enters into force and effect, the FCO will no longer have a unique statutory lever to tackle abuse of gatekeeper powers. We may see gatekeeper cases spring up like mushrooms all across Europe, though the FCO has clearly waited and done its homework before bringing cases under Section 19a GWB against Google, Apple, Amazon, and Meta/Facebook. The FCO appears to strike a good balance between regulatory humility and forcefulness in the interest of competition.

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