Easier access to (non-)essential digital plat­forms and other facilities under EU antitrust rules?

The European Court of Justice (“ECJ”) established in its 1998 landmark decision Bronner that a refusal of access to an essential facility or infrastructure may constitute an abuse of a dominant position under Article 102 TFEU. In its February 2025 Android Auto decision (case C-233/13, 25.02.2025, EU:C:2025:110 – Android Auto) it has now refined the application of this so-called essential facility doctrine for refusal to access to digital platform cases.

I. Facts and proceedings

A company of the Enel Group which manages charging stations for electric vehicles in Italy launched the JuicePass app, enabling drivers to find and reserve charging stations. Enel sought to make its app compatible with Google’s Android Auto, a digital platform that allows apps to be accessed directly via the vehicle’s infotainment system. Users should be able to transmit the charging station search to the Google Maps app, and thereby navigate to the chosen charging station.

Google provides templates for developers aimed at ensuring interoperability between their apps and Android Auto. At that time, however, Android Auto lacked a suitable template for the JuicePass app. Enel therefore requested that Google take the action necessary to ensure interoperability with Android Auto. Google refused based on the grounds that (i) multimedia and messaging apps were the only third-party apps interoperable with Android Auto, (ii) security concerns, and (iii) the costs of creating the JuicePass template.

In 2021, the Italian Competition and Markets Authority deemed Google’s refusal an abuse of a dominant position and fined Google EUR 102 million. While the Regional Administrative Court dismissed Google’s appeal, the appellate court referred certain questions to the ECJ for a preliminary ruling.

II. Long-established: the essential facilities doctrine as applied in Bronner

Based on the ECJ’s established case law, a refusal to grant access to an infrastructure infringes Article 102 TFEU only if (i) the refusing company has a dominant position on the upstream market (i.e. the infrastructure), (ii) access to the infrastructure is essential for running the requesting company’s business, inasmuch as there is no actual or potential substitute for that infrastructure, (iii) refusal is likely to eliminate all competition in the downstream market by the company requesting access, and (iv) refusal is not objectively justified (see case C‑7/97, 26.11.1998, EU:C:1998:569 para 41 – Bronner).

III. Modified: the (non-)essential facilities doctrine as applied in Android Auto

In this case, the ECJ emphasised that it is essential to distinguish between two scenarios when assessing whether a refusal is abusive:

• The criteria established in Bonner apply if the infrastructure was developed by the dominant company solely for the needs of its own business.
• The refined criteria of Android Auto apply if a digital platform was developed by a dominant company with a view to enable third parties to use it. This would be apparent in cases where third parties have already been granted access.

Indispensability is not necessarily required

In Android Auto, the ECJ clarifies that the refusal to grant access to a digital platform that has also been developed for third parties’ use may be abusive even where the access is not indispensable for commercially operating in a downstream market (in this case the market the Juice Pass app is used in). It is sufficient for the platform to make the business of the requesting company more attractive to consumers.

Elimination of all competition on the downstream market is not necessarily required

To be categorised as ‘abuse of a dominant position’, it is necessary to demonstrate that the conduct has the actual or potential effect of restricting competition. The ECJ clarifies that anticompetitive effects of access refusal may exist even if competitors remain active and successful on the downstream market without access to the platform. In such cases, a competition authority’s focus must therefore be on assessing whether the refusal hindered competitors’ growth in that market.

Absence of technical requirements does not generally justify a refusal to enable interoperability

Google provided templates for certain categories of apps. Nevertheless, the ECJ did not accept the argument that a refusal is acceptable for other categories of apps where a specific template does not (yet) exist. The ECJ found that, in general, the dominant company is obliged to develop and provide such a template within a reasonable and necessary period. However, it can require an appropriate financial contribution from the company requesting interoperability. This requires a balancing of the needs of the company requesting access and the difficulties encountered by the dominant company in putting in place the technical requirements to enable interoperability. Balancing factors include (i) the degree of technical difficulty, (ii) the availability of necessary human resources, and (iii) external constraints such as applicable regulatory frameworks.

The ECJ acknowledged that there may be situations when a full refusal can be objectively justified. This could be the case where interoperability would compromise the integrity or security of the platform concerned, or where it would be impossible to develop interoperability for other technical reasons.

IV. Looking ahead

This landmark case provides a recalibration of the essential facility doctrine regarding access to, and interoperability with, digital platforms of dominant companies that are open to third parties. While interoperability is also a core objective of the Digital Markets Act, the Act only applies to a limited number of core platform services provided by designated gatekeepers. In contrast, the Auto Android case is relevant to any dominant provider of a digital platform. Such companies must ensure that they handle access requests in compliance with the new ECJ decision.

Broader implications: Are the Auto Android criteria established in the context of digital platforms also applicable in other settings? The ECJ recalled that the imposition of the strict Bronner conditions was justified by the specific circumstances of that case. Similarly, the modification in the Android Auto case were justified by the particularities of the digital platform setting. It therefore remains to be seen if refusal of access is necessarily abusive in settings where a dominant company has developed infrastructure that is open to third parties. On the one hand, access obligations on dominant undertakings are far-reaching and detrimental to the freedom of contract and the right to property. On the other hand, if infrastructure is already open to third parties, the exclusion of some parties seems more difficult to justify – at least in cases where there the dominant company receives appropriate compensation.