A €4.3-billion European Union antitrust fine was based on flawed calculations, Google said on Thursday, urging Europe’s second highest court to scrap or reduce what it said was not an appropriate penalty.

Google was fined for using its Android mobile operating system to thwart rivals and cement its dominance in general Internet search from 2011, in the largest penalty meted out to any company found guilty of breaching EU antitrust rules.

“The fine that was imposed, a staggering €4.34-billion, was not appropriate,” Google’s lawyer Genevra Forwood told the five-judge panel of the general court on the fourth day of a week-long hearing, which is taking place three years after the European Commission sanctioned the company.

“The problem is not the headline-grabbing fine per se. The problem is how the commission reached that figure,” she said.

Forwood said there was no anticompetitive intent in Google’s actions nor could it have known that its conduct was an abuse based on EU case law and there was no precedent for it.

“So, it was wrong for the commission to impose any fine at all, let alone turn up the dials to reach its biggest fine ever,” Forwood said.

Gravity factor

She also took issue with the EU competition enforcer adding a 11% gravity factor to Google’s fine compared to 5% for Intel in 2009 in a separate case.

“Even if this court considers that a fine is appropriate, it would only be proper to turn the dials right down,” she said.

However, the European Commission’s lawyer, Anthony Dawes, said Google “simply could not be unaware of the anticompetitive behaviour of its practices”.

Infringements committed negligently are no less serious than those committed intentionally

“Infringements committed negligently are no less serious than those committed intentionally,” Dawes said, adding that the fine was just 4.5% of Google’s revenue in 2017 versus a 10% cap allowed under EU rules.