An adviser to the European Union's highest court today told judges that the General Court was wrong to annul the European Commission's €1,494,459,000 fine on Google over the contracts it signed with websites that carried its search ads, and proposed that the case be sent back to the lower court for a fresh judgment. Advocate General Juliane Kokott delivered her opinion in Case C-826/24 P, Commission v Google and Alphabet, in Luxembourg. The opinion is not binding on the Court of Justice, whose judges begin their deliberations now, with judgment due at a later date.

In Short

An adviser to the EU's top court says the lower court that cancelled Google's €1.49 billion fine in 2024 used the wrong test when it looked at how long Google's contracts with websites lasted. If the judges agree, the fine case goes back to the lower court, which would decide again on Google's remaining arguments and on how much Google should pay. Even then, the fine would have to come down, because the Commission did not appeal the part of the 2024 ruling covering 2016. The opinion is advice only, the judges can ignore it, and no date has been set for their ruling.

What the case is about

The dispute concerns AdSense for Search, or AFS, one of the services Google built around AdSense, the advertising intermediation platform it has operated since 2003. According to the opinion, AFS let publishers of third-party websites with their own built-in search boxes display Google's search ads when a visitor ran a search on their site. The revenue from those ads was shared between Google and the publisher. Advertisers associated their ads with keywords, Google ranked them according to the price the advertiser was willing to pay in an auction and the probability of a click, and the advertiser generally paid only when a user clicked. For advertisers today, this is the plumbing behind much of the search partner network, where Google search ads run on sites other than Google's own.

Publishers could join AFS in two ways. They could sign a standard, non-negotiable "online contract", which is not part of the case. Or they could negotiate a Google Services Agreement, known as a GSA, which Google signed with what it called "direct partners." Although GSAs were negotiated one by one, Google drafted template GSAs, and the opinion says those templates were "frequently used as a basis by contractual partners."

Three clauses in those templates are at the centre of the case.

The exclusivity clause, in the template until March 2009, barred direct partners from running a service identical or substantially similar to Google's on the websites listed in their order form. It came with what the opinion calls the English clause, under which the partner and Google had to try to agree a new order form before the partner approached another search advertising provider, and Google could match a rival's terms.

From March 2009, the template replaced those two clauses with a pair of new ones. The placement clause required direct partners to show a minimum number of Google ads on sites using AFS and barred them from placing competing ads above Google's ads or directly next to them. According to the opinion, the Commission found that the clause reserved the most prominent space for "a 'block' of three 'wide format' Google ads" on desktop searches and at least one Google ad on mobile. The prior authorisation clause required the partner to obtain Google's approval before any change to the display of search ads on a listed site, including competing ads. Google could refuse only for certain reasons, and "It was assumed that Google had given its approval if it did not respond within 15 business days."

Every GSA containing the prior authorisation clause also contained the placement clause, but not the other way round. The order form attached to the March 2009 template also required screenshots, called mock-ups, showing the number, format and placement of Google ads on the partner's results pages.

Almost 17 years from complaint to opinion

The case has a long administrative history. In January 2010, Germany's Federal Cartel Office passed the Commission a complaint lodged by Ciao GmbH. The Commission opened proceedings on November 30, 2010. Microsoft complained on March 31, 2011, Expedia on March 30, 2012, and the Initiative for a Competitive Online Marketplace on January 30, 2013. The Commission issued a preliminary assessment on March 13, 2013, and Google offered commitments on April 3, 2013, October 21, 2013 and January 31, 2014. Deutsche Telekom complained on May 16, 2014 and July 2, 2015. On April 21, 2016, Microsoft and Ciao withdrew their complaints.

The Commission opened formal proceedings on the three clauses on July 14, 2016 and issued a statement of objections the same day. On September 9, 2016, Google told the Commission it had written to all direct partners removing the exclusivity and prior authorisation clauses entirely, together with parts of the placement clause.

The decision followed on March 20, 2019. According to the opinion, the Commission found that between 2006 and 2016 Google held dominant positions in 30 of 31 national markets for online search advertising, Portugal being the exception, and in a separate EEA-wide market for online search advertising intermediation. It found three abuses: the exclusivity clause from January 1, 2006 to March 31, 2016, and the placement and prior authorisation clauses from March 31, 2009 to September 6, 2016. Together they formed what EU law calls a single and continuous infringement, running from January 1, 2006 to September 6, 2016. The fine was €1,494,459,000, part of it imposed jointly and severally on Alphabet. PPC Land's report on the 2024 judgment put Alphabet's joint share at €130,135,475.

The decision describes a market with little room for rivals. According to the opinion, the Commission found that Google had faced only limited competition from other providers or intermediaries, including Microsoft and Yahoo!, and that entry and expansion were hampered by the investment needed to build such platforms, by network effects, and by the fact that nearly all advertisers were tied to Google's AdWords auction. Google's actual market shares are redacted in the published opinion and appear only as "[confidential]".

What the General Court decided in 2024

Google challenged the decision on five pleas. The General Court rejected the first, on market definition and dominance. On September 18, 2024, it annulled the decision and with it the €1.49 billion fine, upholding the pleas on all three clauses. It never reached the fifth plea, which attacked the fine itself.

Kokott's reading of that judgment is that it was close to a Commission win on most points. The General Court accepted that the exclusivity clause deterred direct partners from sourcing from rival intermediaries and blocked those rivals from a significant part of the market. It confirmed that the placement clause reserved the most prominent spaces on partners' results pages for Google, noting that Google had not proved that competing ads in other positions could achieve comparable click-through rates. It rejected "nearly all" of Google's complaints about the prior authorisation clause.

What sank the decision, in the lower court's view, was duration. According to the opinion, the General Court faulted the Commission for looking at the "total period" or "cumulative duration" of GSAs, including voluntary extensions, without examining the initial duration of each contract, the duration of each extension, or the unilateral termination rights some partners held. It counted at most 15 direct partners whose GSAs the Commission had relied on for the placement clause, at least 10 of which had termination rights, and 11 partners for the prior authorisation clause, at least 5 of which had such rights. In the lower court's words, as summarised in the opinion, the Commission could not exclude that partners "had the option of sourcing from Google's competing intermediaries" before an extension or before a termination right was exercised.

The General Court also found that the Commission had not shown any foreclosure effect from market coverage in 2016: from January 1 to March 31, 2016 for the exclusivity clause, and from January 1 to September 6, 2016 for the other two. The Commission did not appeal those findings, which are now final.

The Commission's appeal

The Commission lodged its appeal on December 4, 2024. It has four grounds: one for each clause, each split into three branches, and a fourth on the single and continuous infringement. It asked the Court of Justice to set aside the judgment and to dismiss Google's action "in so far as the respondents challenge the capability of the clauses at issue to restrict competition between 31 March 2009 and 31 December 2015", or, in the alternative, to send the case back. Google and Alphabet asked the Court to dismiss the appeal, or, in the alternative, also to send the case back. A hearing took place on July 15, 2026.

Two companies, Surfboard Holding BV and Vinden.NL BV, intervened at first instance. On February 27, 2025, Google applied for confidential treatment of certain information with regard to them. The President of the Court granted the request by order of May 22, 2025, corrected on June 30, 2025.

Kokott's central objection: duration judged in isolation

The opinion turns on how the Intel criteria should be applied. In its Intel judgment of September 6, 2017, the Court of Justice set out what the Commission must analyse when a dominant company argues, with supporting evidence, that its conduct could not foreclose competitors: the extent of the dominant position, the share of the market covered by the practice, the conditions, arrangements and duration of the practice, and any strategy to exclude competitors at least as efficient as the dominant firm. Duration is part of the third criterion.

Kokott accepts that the Commission must examine all relevant circumstances. Her complaint is about what the General Court did with that principle. According to the press release, she found that the General Court read it as requiring "a particularly detailed analysis of all the relevant circumstances in respect of each individual criterion, failure to comply with which may, in itself, result in the annulment of the contested decision." In doing so, she concludes, "the General Court thereby imposed excessive requirements as to the scope of the examination of the criterion of duration and did not sufficiently relate its conclusion to the assessment of the other Intel criteria or weigh it in the overall context of those criteria."

She grounds that view in older case law on contracts that tie customers. In the Delimitis judgment of February 28, 1991, the Court looked at networks of similar supply contracts and their cumulative effect on access to a market. Kokott notes that the Court there made clear that even a relatively short contractual tie can make a significant contribution to sealing off a market if the supplier holds a relatively strong market position. She also draws on merger control, where the Court of Justice held in CK Telecoms, on July 13, 2023, that the General Court errs if it fails to carry out an overall assessment of the evidence.

Applied to AdSense, that leads her to a firm conclusion. In the opinion's words, it "seems fundamentally mistaken" to require the Commission "to carry out a detailed examination and assessment of each of the individual underlying contracts and their application in order to establish whether and to what extent they contributed to those exclusionary effects." It is enough, in principle, to look cumulatively at the contracts that matter to competition on the market and their durations, and to show that together they produced, or were capable of producing, such effects.

The contracts the Commission did examine

The opinion sets out what the 2019 decision contained on duration, and the numbers matter to her argument. For the exclusivity clause, the Commission called the duration "long", meaning "between 1 to more than 10 years." Its two most important partners were AOL and IAC. AOL's GSAs covered all its websites from mid-October 2004 to the end of 2015, more than 11 years. IAC's covered all its websites from mid-May 2003 to the end of March 2016, almost 13 years. Both accounted for shares of Google's gross intermediation revenue that are redacted in the published text.

A list running to about two pages followed. Nextag's GSA lasted about six years and ten months. British Telecom and Tripadvisor were tied for about six years. Italiaonline, Kayak, ABC Startsiden and Benchmark were committed for between four and almost five years in total, and CNET for about three years and ten months. Recital 348 of the decision named 34 direct partners whose GSAs with the exclusivity clause typically included all their websites; another 69 could not establish whether they had.

The Commission also relied on a Microsoft study from 2011 and 2013. According to the opinion, it found that intermediation services under GSAs with these all-sites partners concerned 93% to 100% of the most important web domains, measured by traffic, in France, Germany, Italy, Spain and the United Kingdom in 2010 and 2013. For the placement clause, the decision cited the share of search queries generated by Google's 20 most important direct partners: 73% in the United Kingdom, 89% in Germany, 79% in France, 65% in Spain and 70% in Italy.

Extensions were part of the picture. Tesco's GSA with the placement clause ran from November 1, 2011 to March 31, 2017 after two renewals. Trovit's lasted slightly over four years after one renewal. The GSAs with How to Media and PriceMinister ran for almost six years after two renewals each. For the prior authorisation clause, a footnote to the decision listed 11 GSAs lasting from three years to just over four, and another pointed to agreements that had been extended three or four times.

Termination rights and renewals

Google had argued during the administrative procedure that the typical GSA lasted only two years and that some partners, including AOL, Orange and Tesco, had unilateral termination rights. The Commission answered with case law holding that a right to terminate does not prevent a contract from applying until the right is used. Kokott agrees. In her view, the Commission was entitled, and even required, to consider not only the formal duration of the GSAs but also voluntary extensions and the failure of important partners to terminate. According to the opinion, whether exclusionary effects existed "does not depend on whether the underlying contracts had a mandatorily prescribed minimum duration" or were simply extended or left in place.

She ties that point to the Court's own recent rulings on digital markets, which she reads as holding that "regard must be had above all to the economic reality." The supporting footnote cites the Court's treatment of "status quo bias" for pre-installed apps in its judgment of July 2, 2026, in which Google lost its appeal against the 4.125 billion euro Android fine.

The opinion does not give the 2019 decision a clean bill of health on drafting. Kokott writes that the decision satisfies the legal requirements "notwithstanding some infelicitous phrasing", and a footnote states that the Commission's use of "average duration" and "long" in five recitals "is unclear." She also says it was unnecessary to examine more closely each GSA with less important business partners, contracts "which may have little or no significance or representativeness." According to the opinion, it was confirmed at the hearing that neither the General Court nor Google claimed the Commission had overlooked any important GSA.

Google's "contestable demand" argument

Google's main defence, which succeeded at first instance, was that the contracts were short enough for rivals to compete for the business whenever they expired. According to the opinion, Google said at the hearing that because of short contractual commitments, almost 90% of the volume of demand had at times been open to competitors. It also acknowledged, in Kokott's account, that rival intermediaries had remained largely unsuccessful, which Google attributed to their inferior services.

Kokott says Google could not show whether, or how far, the expiry of GSAs coming up for renewal between May 2011 and May 2013 had actually led any partner to switch provider. According to a footnote, Google denied at the hearing having evidence to that effect. It had argued during the administrative procedure that partners ran competitive processes and often negotiated with Google and Microsoft/Yahoo! simultaneously. The same footnote records that Microsoft concluded a long-term contract with AOL in 2015, and that a submission from Surfboard cited by the General Court confirmed that GSAs "were very often renewed."

Then the opinion asks the question the Commission had raised in the proceedings: "why was it actually necessary, from Google's perspective, despite the allegedly superior quality of its offering, to introduce those clauses and to continue to apply them on a graduated basis for years?"

For Kokott, the duration argument cannot undo the rest of the record. The General Court had confirmed Google's rising market shares between 2006 and 2016, the deterrent effect on partners, the market coverage of the GSAs and the resulting obstacle to rivals' access, all of which are final because Google did not cross-appeal. Those findings, she writes, are "strong indications" that the clauses "were not only capable of producing exclusionary effects, but actually did so." She describes the General Court's criticism of the Commission as "contradictory", because it confirmed the effects and then questioned them on the basis of duration alone without explaining how a more detailed duration analysis could have changed the result.

What the opinion says about digital markets and efficient rivals

The opinion goes beyond AdSense in places. Kokott addresses the as-efficient competitor test, which asks whether a rival as efficient as the dominant firm could still compete. She notes that the Court of Justice has called the test inappropriate for some non-price practices and only one method among several, but has, "ambiguously, in my view", not ruled out its use for contractual exclusivity. The General Court had already held that the test was not applicable to the AdSense clauses, citing Google's high market shares, entry barriers and network effects, and the absence of any analysis from Google based on it. That finding is not contested in the appeal. In its Android judgment, the Court of Justice held that proof of an abuse does not, as a rule, require showing that an equally efficient rival would be excluded, a point PPC Land examined in its analysis of Google's lost efficiency-test defence.

She also sets out her reading of recent case law on what makes conduct abusive. In her understanding, the placing of barriers to entry or other blocking measures by a dominant company is "sufficient, in principle," to attribute the resulting exclusionary effects to it, "without it being necessary in each case to establish additionally a deviation from competition on the merits." She adds that this applies "a fortiori to the structure of digital markets, like those at issue here," which she describes as "an ecosystem characterised by significant barriers and network effects, which contribute to making the entry, maintenance or emergence of even a competitor as efficient as the undertaking with a dominant position practically impossible."

The opinion also cites the Commission's own new guidance. On September 3, 2026, the Commission adopted Guidelines on the application of Article 102 to exclusionary conduct by dominant companies. Kokott quotes paragraph 106(d): "In general, the higher the share of total sales in the relevant market affected by the conduct and the longer the duration of the conduct, the greater is the capability of the conduct to produce exclusionary effects". She reads the older 2009 guidance, which the General Court relied on, as not meaning that a short exclusive obligation can foreclose a market only where the dominant firm is an unavoidable trading partner. In any event, she notes, that guidance is not binding on the Court of Justice.

Single and continuous infringement

The fourth ground of appeal concerns whether the three clauses formed one infringement. The General Court rejected that classification because it had found no proven abuse in any of the clauses. Since that premise falls if her analysis is followed, Kokott concludes that this finding was also an error of law.

She goes further on the merits than the case strictly requires. Citing the Android judgment, she says the criteria for a single and continuous infringement apply under Article 102, especially where a dominant firm pursues an overall strategy to foreclose competitors. According to the opinion, the Commission reaffirmed at the hearing that such a strategy was plausible here, and Kokott says the General Court would have to assess it more closely. She then writes that "That is the only explanation for the successive shift, initiated by Google, in the design of the GSAs, from the exclusivity clause to the placement and prior authorisation clauses, in the period from 2006 to 2015." She adds that "the ostensible economic rationale behind, and need for, those clauses are difficult to reconcile with the superior quality of the services which Google claims to have offered and a practice guided solely by competition on the merits."

The fine: back to the General Court, and smaller either way

Kokott proposes that the Court of Justice set aside the 2024 judgment in so far as it annulled the decision for failure to demonstrate exclusionary effects from 2006 to the end of 2015, refer the case back to the General Court, and reserve the costs. That outcome was the alternative request of both the Commission and Google.

She explains why the Court of Justice should not decide the case itself. The General Court never examined Google's fifth plea against the fine, nor the admissibility and merits of Google's challenge to the single and continuous infringement finding, nor several of Google's other complaints. On fines, the General Court has unlimited jurisdiction under Article 261 of the Treaty and Article 31 of Regulation No 1/2003, which allows it to "cancel, reduce or increase the fine imposed, where that has been applied for." The Court of Justice, by contrast, can intervene on appeal only if a penalty is excessive to the point of being disproportionate. Ruling now would mean dealing for the first time with Google's detailed objections to the Commission's calculation method and to proportionality, which Google's first-instance application set out in paragraphs 189 to 210.

A reduction appears unavoidable on her analysis. According to the press release, "In any event, the fine should be reduced, as the General Court's findings regarding the lack of demonstration of exclusionary effects in 2016 have not been challenged." The press release adds that those findings "must be taken into account in the new decision on the fine." Neither document puts a figure on the reduction.

Kokott and Google

Today's opinion is not Kokott's first in a Google competition appeal. Her footnotes cite her own opinions in the Google Shopping appeal, Case C-48/22 P, and the Android appeal, Case C-738/22 P. In Google Shopping, the Court of Justice upheld the €2.42 billion fine on September 10, 2024. In Android, she delivered her opinion on June 19, 2025, and the Court dismissed Google's appeal on July 2, 2026, a gap of just over a year by PPC Land's count. That interval says nothing about when the AdSense judgment will come, since the Court has given no date.

The legal stakes run beyond 2006 to 2016. Google appealed the Commission's €2.95 billion ad tech decision of September 5, 2025 to the General Court on January 12, 2026, as Case T-794/25, PPC Land reported when the Commission published the decision. That decision concerns self-preferencing across Google's ad tech stack rather than exclusive contracts, so the duration question does not transfer directly. What does transfer is the general issue of how closely the General Court may pick apart one element of a Commission analysis without weighing it against the rest. On July 23, 2026, the Commission also fined Google 890 million euros under the Digital Markets Act, which works through fixed obligations rather than the effects analysis at issue here. Kokott cites that law's recitals on scale economies, network effects and lock-in only to describe how digital platforms work.

Why this matters to advertisers and publishers

AdSense for Search is still a live channel. PPC Land's explainer on the search partner network notes that most partner inventory comes from AFS, with Google supplying the ads, the partner supplying the page and the query, and the two sharing the revenue. In 2025, Google began placing search ads in AI chatbot conversations through the same product, with iAsk and Liner among the first partners.

The channel is also shrinking as a share of Google's business. Google Network advertising revenue fell 4% to $6.97 billion in the first quarter of 2026, and in the third quarter impressions on Google Network partner sites fell 14%. The clauses in this case were removed in 2016, so the opinion does not change any contract a publisher signs today.

What it could change is the burden on competition authorities when a dominant platform ties customers through a web of short, renewable contracts. Google's defence rested on the idea that frequent renewal points kept the market open. Kokott's answer is that voluntary renewals and unused termination rights count as part of the tie, and that short contract terms do not outweigh the market power, coverage and network effects found elsewhere in the record. The same pattern appears elsewhere in Google's legal record. In Australia, Google agreed to a A$55 million penalty over deals requiring Telstra and Optus to pre-install Google Search exclusively on Android devices. In the United States, Judge Amit Mehta's August 2024 finding that Google illegally maintained its search monopoly treated browser default agreements as exclusive in practice, and Google has asked the appeals court to throw out that ruling. Kokott's opinion cites the US judgment of August 5, 2024 for its description of the AdWords auction.

Rival intermediaries have tried to compete for the same publisher demand. Microsoft, a complainant in the AdSense case until 2016, launched pubCenter for small publishers in 2023, allowing its ads to run in the same units as AdSense.

There is also a private enforcement angle. In the United Kingdom, the Competition Appeal Tribunal in August 2026 certified a £5 billion opt-out claim on behalf of advertisers that paid Google for search advertising between January 1, 2011 and April 15, 2025. That claim is built largely on the Android decision, not on AdSense. A final Commission decision on AdSense, if restored, would add another adjudicated abuse in search advertising to the public record.

What remains open

Several points are unresolved. The Court of Justice may decline to follow the opinion. If it does follow it, the General Court must still rule on the classification of the three clauses as one infringement, on Google's remaining complaints and on the fine, including its calculation method and proportionality. The size of the reduction for 2016 is not stated. Google's market shares, its revenue from the largest partners and the share of AFS turnover up for renewal between May 2011 and May 2013 all remain redacted. Neither the press release nor the opinion contains a statement from Google or the Commission in reaction to today's opinion. The opinion was written in German, and the quotations above come from the Court's English version.

Timeline

Summary

Who: Advocate General Juliane Kokott of the Court of Justice of the European Union, in an appeal brought by the European Commission against Google LLC and Alphabet Inc. Complainants in the original case included Ciao, Microsoft, Expedia, the Initiative for a Competitive Online Marketplace and Deutsche Telekom. Surfboard Holding and Vinden.NL intervened at first instance.

What: Kokott concluded that the General Court applied the wrong legal standard when it annulled the Commission's €1,494,459,000 AdSense for Search fine in 2024, by demanding a contract-by-contract analysis of the duration of Google's agreements with publishers instead of an overall assessment of all the evidence. She proposed setting aside the judgment for 2006 to the end of 2015 and sending the case back to the General Court, which would have to rule on the fine and Google's other arguments. She said the fine must be reduced in any event, because the 2016 findings in Google's favour are final.

When: The opinion was delivered today, November 12, 2026. The Commission's decision dates from March 20, 2019, the General Court judgment from September 18, 2024, and the appeal from December 4, 2024. No date has been set for the judgment.

Where: Luxembourg, at the Court of Justice. The case covers Google's AdSense for Search contracts across the European Economic Area, 30 national markets for online search advertising and an EEA-wide market for search advertising intermediation.

Why: The opinion addresses how competition authorities must prove that a dominant platform's contracts excluded rivals, particularly when those contracts are short and renewable. If the Court follows it, the AdSense finding against Google would be largely restored, the burden on the Commission in similar cases would be lighter, and the General Court would set a new, reduced fine. The opinion is not binding, and the judges may decide differently.