An adviser to the EU’s top court says Google should not have escaped its €1.49 billion AdSense fine. Advocate General Juliane Kokott told the Court of Justice on 12 November that the 2024 judgment cancelling the penalty should be set aside and the case sent back to the lower court.
Her opinion does not bind the judges, who make the final call. If they follow it, the fine does not simply come back: the General Court would have to look at the case again, and Google’s remaining objections, including those about the size of the penalty, would still be open.
The case goes back to March 2019, when the European Commission found that Google abused a dominant position between 2006 and 2016 through three clauses in contracts with publishers that used its AdSense for Search service. The service put Google’s search ads next to the results of a publisher’s own site search. In September 2024 the General Court wiped out that decision, and the Commission took the matter to the Court of Justice.
The lower court, in her reading, set the bar too high. It wanted the Commission to prove, contract by contract, that publishers could not realistically move to a rival at renewal or walk away early. Kokott says that is the wrong test: a publisher that renews again and again and never uses its exit right is telling the court something, and the Commission may weigh the whole set of agreements together.
She also argued that the lower court never explained how a closer look at contract length could have changed its own findings on Google’s market strength, the reach of the restrictions and their effect on publishers thinking of using a rival. And she put a pointed question to Google: if its ad offer was as good as it says, why did it need to introduce those clauses and keep them, in graduated form, for years?
Google says the General Court was right to annul the decision because the Commission had not shown that the contracts restricted competition. It also argues that the Commission is really asking the Court of Justice to re-weigh facts, which is not the job of an appeal court, and says it is reviewing the opinion. Rivals, in Google’s account, simply lost the contests for publishers’ business because their ad services were worse.
One limit applies whatever the judges decide. The Commission left the General Court’s ruling on 2016 unchallenged, so that part stands. Kokott therefore concludes that any fine brought back would have to be lower than €1.49 billion.
