Compensation Claim Against Google for Android Store Delay

Question

Our EU-based business has experienced an estimated financial loss of €50,000 because of a delayed product launch on the Google Android store. This delay led to a conflict with a prepaid social media campaign aligned with the expected launch date. The delay was a result of Google's failure to approve our app, and no explanation was communicated during the two-week waiting period. Considering this situation, can our business pursue a compensation claim against Google under the provisions of the Digital Markets Act that govern approval processes and communication obligations with business users? Moreover, can we investigate whether Google holds the status of a gatekeeper according to the Digital Markets Act's requirements, which may underlie such a claim?

Answer

Under the Digital Markets Act (DMA), your EU-based business may have grounds to investigate whether your delayed product launch on the Google Android store constitutes non-compliance by Google with its obligations as a potential 'gatekeeper'. A gatekeeper, as per the DMA, is a dominant platform provider like Google that must follow specific rules to ensure fair market conditions. If Google failed to meet its requirements, such as fair and non-discriminatory access, transparent ranking, or provision of necessary data, which in turn caused your financial loss, this might support a claim. However, the DMA's primary focus is market regulation rather than enabling individual compensation claims, so it would be wise to seek a detailed legal assessment to explore possible compensation avenues, potentially extending beyond the DMA's scope.

Legal trace

‘gatekeeper’ means an undertaking providing core platform services, designated pursuant to Article 3; (Article 2(1))

In simple terms, a “gatekeeper” is a company that offers fundamental online services and has a lot of influence over market access. But just offering these services isn’t enough to be labeled a gatekeeper; there’s an official process to decide who gets this label, detailed in Article 3.

‘core platform service’ means any of the following: (a) online intermediation services; (b) online search engines; (c) online social networking services; (d) video-sharing platform services; (e) number-independent interpersonal communications services; (f) operating systems; (g) web browsers; (h) virtual assistants; (i) cloud computing services; (j) online advertising services, including any advertising networks, advertising exchanges and any other advertising intermediation services, provided by an undertaking that provides any of the core platform services listed in points (a) to (i); (Article 2(2))

Here, “core platform service” covers a range of online services from search engines and social networks to operating systems, like Android, and even online advertising services. If Google is providing, for example, the Android operating system or running something like the Google Play Store, then it would be offering “core platform services.”

‘software application stores’ means a type of online intermediation services, which is focused on software applications as the intermediated product or service; (Article 2(14))

This makes it clearer that places like the Google Play Store, where you can get apps, are considered a kind of online service that falls under “core platform services.” So, Google is an enterprise that provides these essential services.

‘business user’ means any natural or legal person acting in a commercial or professional capacity using core platform services for the purpose of or in the course of providing goods or services to end users; (Article 2(21))

A “business user” is basically anyone who uses these important online services to sell or offer things to customers. If you’re selling products or services online and have been affected by Google’s app store, then you’re considered a business user according to this definition.

Assuming on these points, it looks like Google could be defined as a gatekeeper, particularly through the provision of the Android OS and the Google Play store. If Google is officially designated as a gatekeeper under the DMA, it would have to follow certain rules meant to help businesses like yours.


gatekeepers can restrict the ability of business users of their online intermediation services to offer products or services to end users under more favourable conditions, including price, through other online intermediation services or through direct online sales channels. (Recital 39)

Gatekeepers have the power to limit the freedom of businesses to provide better deals, like lower prices, on other platforms or directly to customers. This can stifle competition and limit choices, which isn’t fair to you or your customers.

the business users of those gatekeepers should be free to promote and choose the distribution channel that they consider most appropriate for the purpose of interacting with any end users that those business users have already acquired through core platform services provided by the gatekeeper or through other channels. (Recital 40)

This suggests that your business should have the freedom to sell and market through any channel you choose, regardless of whether you initially connected with your customers through a gatekeeper’s services. Essentially, it’s about preserving your right to choose how and where to reach your customers.

So, if Google, as a possible gatekeeper, made it tough for you to launch your product on their store and this hurt your ability to work across different channels, you might argue that this goes against the fairness that the DMA strives for. Whether or not you can claim compensation for this might depend on detailed terms of service you agreed with Google and whether these terms actually restricted your business operations.


The gatekeeper shall not treat more favourably, in ranking and related indexing and crawling, services and products offered by the gatekeeper itself than similar services or products of a third party. The gatekeeper shall apply transparent, fair and non-discriminatory conditions to such ranking. (Article 6, Paragraph 5)

This part means that Google, as a gatekeeper, must not favor its own apps or services over yours in search results within the store. This is meant to create an even playing field, so if Google was unfair in this way, it could be a reason for you to ask for compensation.

The gatekeeper shall provide business users and third parties authorised by a business user, at their request, free of charge, with effective, high-quality, continuous and real-time access to, and use of, aggregated and non-aggregated data, including personal data, that is provided for or generated in the context of the use of the relevant core platform services or services provided together with, or in support of, the relevant core platform services by those business users and the end users engaging with the products or services provided by those business users. (Article 6, Paragraph 10)

This specifies that you should have access to the data regarding your app’s use and the users’ engagements. If Google didn’t provide this, it would have held up your understanding of the app’s status and could be a valid basis for seeking compensation.

The gatekeeper shall apply fair, reasonable, and non-discriminatory general conditions of access for business users to its software application stores, online search engines and online social networking services listed in the designation decision pursuant to Article 3(9). For that purpose, the gatekeeper shall publish general conditions of access, including an alternative dispute settlement mechanism. (Article 6, Paragraph 12)

Google is expected to be fair and reasonable in the way it lets business users like you access its store and should clearly lay out these terms, including how to resolve disputes. If your app’s review process was unreasonably delayed or if Google didn’t stick to its own rules, you could potentially use this as grounds for compensation.


The Commission shall adopt an implementing act setting out its finding of non-compliance (‘the non-compliance decision’) where it finds that a gatekeeper does not comply with one or more of the following: (a) any of the obligations laid down in Article 5, 6 or 7; (b) measures specified by the Commission in a decision adopted pursuant to Article 8(2); (c) remedies imposed pursuant to Article 18(1); (d) interim measures ordered pursuant to Article 24; or (e) commitments made legally binding pursuant to Article 25. (Article 29)

This is about official recognition of a gatekeeper’s failure to follow the rules. So, if Google didn’t meet its obligations and that led to your app’s delay, the European Commission would need to note this formally, which could support any legal action you might take.

In the non-compliance decision, the Commission may impose on a gatekeeper fines not exceeding 10 % of its total worldwide turnover in the preceding financial year where it finds that the gatekeeper, intentionally or negligently, fails to comply with: (a) any of the obligations laid down in Articles 5, 6 and 7; […] (Article 30)

There are big fines for gatekeepers that don’t play by the rules. If Google’s actions that delayed your app were indeed against the DMA, and they get fined, this could support your claim for compensation. You’d need to show that Google’s actions were wrong according to the DMA and that they caused you financial harm.


In summary, based on the Digital Markets Act (DMA), there may be a path to pursue compensation if Google, qualifying as a gatekeeper, failed to comply with certain obligations that resulted in your app’s delayed launch. However, the DMA mainly aims to regulate market competition broadly rather than providing direct avenues for compensation to individual businesses. Therefore, further legal analysis would be needed to determine the full scope of your rights and any claims against Google, possibly including other legal grounds outside of the DMA.