Google adtech trial: "The court plans to implement monitoring of compliance with remedies"

Lawyer Fayrouze Masmi-Dazi says a technical monitoring committee and possible extension of remedies could ensure Google complies with corrective measures set by the US court in its September 16 memorandum.

JDN. The full opinion of Judge Leonie Brinkema on the corrective measures to be applied by Google following its conviction for anti-competitive practices in adtech was made public on Wednesday, 16 September. Which measures do you consider the most significant?

Fayrouze Masmi-Dazi. The court ruled out structural remedies, such as the sale of AdX, open-sourcing the DFP code, or even the sale of the rest of the DFP perimeter, anti-circumvention clauses, or the broad ethics programme as partly requested by the coalition of US states. What the published document allows us to analyse are the motivations underlying this choice. The court was not convinced of the opportunity, relevance, or above all the short-term effectiveness of these structural commitments.

Why?

Firstly, because it considered that the potential declared buyers of AdX did not guarantee that such a sale outside Google's ecosystem would be relevant. It judged that the time required to implement such a sale would be long and therefore less effective in the short term to remedy the practices deemed unlawful. The court also took into account, on numerous occasions, the judgment delivered in parallel by Judge Mehta in the Google Search case and notably examined the possible short-term impact of generative AI on the adtech stack. This suggests that such an impact will occur in the medium or long term.

Which measures did the court favour?

It ordered a combination of behavioural corrective measures: ending the forced contractual link between DFP and AdX, banning first look and last look, and abandoning the "Unified Pricing Rules". This should allow publishers to set different floor prices depending on the platform, without penalty or discounts conditional on uniform prices. It also ordered interoperability between AdX and other ad servers, between AdX and Prebid, and between DFP and Prebid. It also requires data portability and transparency, so that publishers can obtain their detailed DFP/AdX auction data and access technical documentation explaining DFP's selection logic. Furthermore, AdX must transmit its purchase offers to competing servers and to Prebid without degrading revenue sharing, response frequency, information transmitted, or latency. DFP must therefore select and serve ads in accordance with the publisher's preferences, without favouring a Google product.

One interesting point in the court's reasoning should be noted. The court prohibits direct bid integration between AdWords and DFP but allows direct integration with a third-party intermediary such as Prebid, while prohibiting Google from making changes to the bidding decision, amount, data, or routing. Finally, the court excludes the application of remedies to DV360 due to a lack of evidence provided by the coalition of states that Google's practices impacted DV360, unlike the European Commission, which explicitly targeted DV360 in its decision and therefore gathered supporting evidence in this regard.

These are highly technical measures, and it will be difficult to ensure Google complies with them...

Precisely, and this is probably the biggest difference compared to what the Autorité française de la concurrence (French Competition Authority) decided in 2021. The court provides for the implementation of monitoring of compliance with the remedies under the supervision of a technical committee composed of one member appointed by Google, one member appointed by the coalition of states, and one member chosen by the previous two. The remedies are set for a duration of 6 years, with the possibility of extension if the measures have not been fully implemented.

Important clarification: this memorandum sets out the substantive choices, but the exact text of the "final judgment" has not yet been finalised. The parties have 30 days to submit a joint proposal specifying, in particular, technical deadlines and certain formulations.

Do you think this maximum interoperability required of Google on the sell side will be enough to change the current imbalances that disadvantage publishers?

Interoperability is a requirement, a prerequisite, a condition for competition to take place, including for the benefit of publishers, or at least not to their detriment. But it must be effective, in real time, and according to technical arrangements that genuinely allow competition to take place. It is logical that such an obligation has been ordered; this echoes the measure made binding by the Autorité française de la concurrence (French Competition Authority) in 2021.

The issue here is not so much that it is an obligation, but that interoperability is actually achieved and implemented. In September 2025, when the European Commission delivered its decision, this interoperability still did not appear to be effective despite commitments made by Google in this direction as early as 2021 before the Autorité française de la concurrence (French Competition Authority). The establishment of a technical committee in the United States, the American court's confidence in its ability to obtain compliant behaviour from Google after three convictions (France, EU, and US), and the possibility of extending the remedies could make a difference. Nevertheless, it is difficult to assess compliance with behavioural commitments that depend greatly on the willingness of the party being compelled.

In your view, was a break-up necessary?

What the US judgment, the European decision, and the French decision all highlight is that within the very intertwining of the technological conglomerate that Google has become, there are numerous frictions and conflicts of interest. The logic of a break-up is to remedy this definitively, once and for all. But the beauty and the curse of a conglomerate is that the intrinsic value of each service is not necessarily equal to the aggregate value within the whole. AdX, DFP, AdWords, and even DV360 are services that feed off their integration within Google's technological ecosystem. A sale can always be relevant, but the question of the value and the autonomous nature of each service independently of the others naturally arises for both a judge and a potential buyer. Where the court's analysis is interesting is that it expresses doubt as to whether a serious buyer exists (capable of being competitive with the divested asset), which led to the sale being ruled out. Yet, the judgment notes that several established candidates came forward during the proceedings.

These corrective measures will have to be applied worldwide. Is this unprecedented for a decision taken in the context of a US judgment?

This is not so unprecedented in competition law, and US law more generally has many texts with extraterritorial application. In global markets such as adtech, the court indicates that it is because differentiated mechanisms may exist outside the United States and impact the US market that it has given the remedies a global dimension. From this point of view, there appears to be a form of continuity with US law and its extraterritorial application whenever this is likely to impact the US market.

What should we now expect from the EC, which should also rule on the corrective measures to be applied by Google following its conviction for abuse of dominant position in adtech on this side of the Atlantic?

Independently of the US judgment, the Commission has convicted Google and indicated its intention to implement corrective measures. One year after this decision, the Commission has still not revealed the measures it considers appropriate.

However, the scope of the US judgment and that of the Commission's decision do not completely overlap. The Commission notably found practices affecting the buy side and explicitly included DV360. On the areas not covered by the US judgment, the Commission could perfectly well adopt remedies without this conflicting with the US judgment, and even impose the same remedies on DV360 (notably interoperability, direct with third-party intermediaries for example, data sharing, transparency, etc).

Is there a risk of conflict for the other decisions?

For the measures where the judgment and the decision overlap, the Commission faces a choice, as did the US judge, between a total or partial divestiture, with or without behavioural remedies, or a combination of behavioural remedies. The choice of divestiture would inevitably come up against the US judgment. As for the remedies, there is convergence between those adopted by the US judge and those made mandatory without market testing by the Autorité française de la concurrence (French Competition Authority) in 2021.

Two differentiating elements should nevertheless be noted: on the one hand, both the US trial and the European investigation have specifically highlighted the needs for interoperability, data sharing, transparency, and the contractual and technological mechanisms and technological barriers. On the other hand, the need for a technical committee of experts to assess and above all monitor effective implementation. However detailed the behavioural obligations may be, they require monitoring and intervention in the actual implementation by real experts in the adtech stack, otherwise they risk being ineffective.

This article was automatically translated from French. Read the original version: https://www.journaldunet.com/adtech/1555147-proces-google-adtech-le-tribunal-prevoit-la-mise-en-place-d-un-monitoring-du-respect-des-remedes/