Dominant tech platforms have a duty to ensure interoperability and access, under certain conditions
Judgment of the Court in Case C-233/23 | Alphabet and Others
Authors: Anca Nicoleta Călugăru (Junior Associate), Carina Vermeșan (Partner, Dispute Resolution & Regulatory) Andronic and Partners
On February 25, 2025, the European Court of Justice delivered its judgment(1) in Case C-233/23 on several preliminary questions referred by the Italian Council of State regarding the interpretation of Article 102 of the Treaty on the Functioning of the European Union (“TFUE”).
In this case, the Court examined whether Google’s refusal to allow a digital platform developed by Enel access to its Android App platform could constitute an abuse of dominance even if the platform is not indispensable to the commercial operation of Enel’s app.
The case is highly significant for digital platforms, as it distances from the Bronner case(2) criteria for determining when a dominant company’s refusal to grant access constitutes an abuse of a dominant position within the meaning of Article 102 TFEU. Under the Bronner doctrine, the following conditions must be met: (i) the refusal is likely to eliminate all competition in the market on the part of the person requesting the service; (ii) the refusal is incapable of being objectively justified; and (iii) the service in itself is indispensable to carrying out that person's business.
In Case C-233/23, The Court clarified that the Bronner conditions are applicable only if the infrastructure is (i) developed by the undertaking in a dominant position solely for the needs of its own business and (ii) owned by that undertaking.
In essence, the Court found that the refusal by a dominant undertaking to ensure interoperability with a downstream competitor’s app may constitute an abuse, regardless of the fact that that platform is not indispensable for the app’s commercial operation on a downstream market, but is “such as to make that app more attractive to consumers, where that platform has not been developed by the undertaking in a dominant position solely for the needs of its own business”(3).
Background
In 2018, Enel X Italia, part of the Enel group, which manages over 60% of Italy's electric vehicle charging stations, launched the JuicePass app. The app allows electric-vehicle users, inter alia, to reserve charging points and otherwise manage and pay for charging services. To improve user experience, Enel requested Google to make the app compatible with Android Auto, Google’s system that enables apps to be accessed directly via a vehicle's onboard screen. Following such request, Google informed Enel that it could not grant it access due to, inter alia, security reasons and the fact that solely multimedia and messaging apps were compatible with Android Auto. Following this refusal, Enel filed a complaint to the Italian Competition Authority, claiming that such actions constituted an abuse of dominance.
As a result, the Italian Competition Authority confirmed the position of Enel and imposed a fine exceeding €102 million on Google, deeming this refusal an abuse of dominant position.
Google brought the matter before the Italian Council of State, arguing that access to Android Auto platform was not indispensable for JuicePass app to compete and that its conduct was objectively justified. Faced with the issue, the Italian Council of State decided to refer several questions to the European Court of Justice concerning the interpretation of Article 102 of the Treaty on the Functioning of the European Union.
Key Takeaways
• The European Court of Justice concluded that a refusal to grant access to a platform by a third-party undertaking which has developed an app is “capable of constituting an abuse of a dominant position even though that digital platform is not indispensable for the commercial operation of the app concerned on a downstream market, but is such as to make that app more attractive to consumers, where that platform has not been developed by the undertaking in a dominant position solely for the needs of its own business.”(4) In other words, it suffices to determine that the refusal has the “actual or potential effect of excluding, obstructing or delaying the development on the market of a product or service which is at least potentially in competition with a product or service supplied or capable of being supplied by the undertaking in a dominant position.”(5)
• With regard to the analysis of anticompetitive effects, the Court reaffirmed its previous decisions(6) noting that a refusal of access can still have anticompetitive effects, even if the third-party undertaking that developed the app, along with its competitors, remains active in the relevant market and expands its market position without benefiting from interoperability with the platform. The Court states that “it is necessary to assess whether that conduct on the part of the undertaking in a dominant position was such as to hinder competition on the market concerned being maintained or to hinder its growth, taking into account all the relevant factual circumstances.”(7)
• The refusal by an undertaking in a dominant position to ensure that an app is interoperable with a digital platform may be justified if there is no existing template for that app category and if developing one would compromise the platform’s integrity or security, or if it would be impossible for other technical reasons to ensure interoperability by developing such a template. With respect to this assessment, the following criteria are relevant: (i) the degree of the technical difficulty; (ii) internal and external limitations of the undertaking, such as human resources or the regulatory framework(8). If none of these criteria are met, the undertaking in a dominant position is required to develop such a template, within a period which is reasonable and necessary for that purpose. In return, it may request, depending on the circumstances, appropriate financial consideration, taking into account the needs of the third-party undertaking which requested that development, the actual cost of the development and the right of the undertaking in a dominant position to derive an appropriate benefit from it.
• In the context of Article 102 TFEU, a competition authority may determine whether a dominant undertaking’s refusal to ensure interoperability of a third-party app with its digital platform is abusive by identifying the downstream market where such conduct could restrict competition, even if that market is merely potential(9), without the need for a precise definition of the product and geographic market.
1. Judgment of the Court of Justice of February 25, 2025, Case C-233/23, Alphabet and Others v AGCM, available here.
2. Judgment of the Court of Justice of November 26, 1998, Case C-7/97 Bronner, EU:C:1998:569, available here.
3. Judgment of the Court of Justice of February 25, 2025, Case C-233/23, Alphabet and Others v AGCM, paragraph 52, available here.
4. Judgment of the Court of Justice of February 25, 2025, Case C-233/23, Alphabet and Others v AGCM, paragraph 52, available here.
5. Judgment of the Court of Justice of February 25, 2025, Case C-233/23, Alphabet and Others v AGCM, paragraph 54, available here.
6. Judgment of the Court of Justice of 19 January 2023, Unilever Italia Mkt. Operations Srl v Autorità Garante della Concorrenza e del Mercato, Case C-680/20, EU:C:2023:33, available here and Judgment of the Court of Justice 12 May 2022, Servizio Elettrico Nazionale and Others, C-377/20, EU:C:2022:379, available here;
7. Judgment of the Court of Justice of February 25, 2025, Case C-233/23, Alphabet and Others v AGCM, paragraph 61, available here.
8. Judgment of the Court of Justice of February 25, 2025, Case C-233/23, Alphabet and Others v AGCM, paragraph 81, available here.
9. Judgment of the Court of Justice of 29 April 2004, IMS Healtg, C-418/01, EU:C:2004:257, paragraph 44, available here.