In its preliminary ruling of 25 February 2025 (C 233/23, EU:C:2025:110), the European Court of Justice (ECJ) interpreted Article 102 TFEU and the so-called Bronner criteria laid down in its earlier judgement of 26 November 1998 (C 7/97, EU:C:1998:569) concerning refusals of access to the infrastructure of an undertaking holding a dominant position. The case concerns a request for preliminary ruling made by the Council of State, Italy, regarding Italy’s Competition and Market Authority’s decision to impose penalties to Google for having infringed Article 102 TFEU by refusing to allow an app developed by a third-party undertaking, Enel X Italia, to be interoperable with Google’s Android Auto digital platform (platform allowing users to access apps on Android OS devices directly on the screen of a motor vehicle).
Enel X Italia’s app, JuicePass, offers a set of features for charging electric motor vehicles. After requesting Google, more than once, to ensure that JuicePass would be interoperable with Android Auto, and Google refusing to do so, Enel X Italia brought the matter before Italy’s Competition and Market Authority. In 2021, the Authority concluded that Google’s obstructing and delaying making JuicePass available on Android Auto constituted an abuse of a dominant position within the meaning of Article 102 TFEU and imposed a fine of EUR 102.1 million on Google.
In its preliminary ruling, the ECJ considered that a refusal by a dominant undertaking developing the digital platform to ensure, at the request of a third-party undertaking, the platform’s interoperability with the third party’s app can constitute an abuse of dominant position. This is the case even if the platform is not indispensable for the commercial operation of the app on a downstream market but is only to make that app more attractive to consumers, in case the platform has not been developed solely for the dominant undertaking’s own needs. Therefore, the Bronner criteria relating to the indispensability to the business of the entity requesting access was not applicable in this case but a refusal is capable of constituting an abuse of a dominant position even though the digital platform is not indispensable for the commercial operation of the app (i.e., even if there are actual or potential substitutes for that platform on which the app could run).
The ECJ also considered that the fact that the third-party app developer, together with its competitors, continued to be active and grew their position on the marker without benefitting from the interoperability of the platform did not in itself indicate that the refusal by the dominant undertaking was incapable of having anticompetitive effects. However, a dominant undertaking could rely on objective justifications for its refusal, such as the requested access compromising the integrity or security of the platform concerned or being otherwise impossible for technical reasons. If no such objective justification exists, the dominant undertaking is required to develop the platform to ensure its interoperability with the app within reasonable and necessary period and in return for appropriate financial consideration.
