The ECJ’s Android Auto ruling redefines the case-law on abuse of dominance in cases of refusal to conclude contracts
On 25 February 2025, the Grand Chamber of the Court of Justice of the European Union (the “ECJ” or the “Court”) issued a preliminary ruling in Case C-233/23, Android Auto, concerning the application of Article 102 TFEU to Google’s refusal to ensure interoperability between its Android Auto platform and a third-party app.
Background
The preliminary ruling request originates from a dispute between Google and the Italian energy company ENEL. The latter had developed an app called JuicePass enabling Italian electric car drivers to find, book and navigate to charging stations using their smartphones. In 2018, ENEL requested Google to make JuicePass available on the Android Auto platform which enables car drivers to communicate with their smartphone apps (such as Google Maps) via the vehicle’s dashboard while driving.
Google refused to make JuicePass available on Android Auto arguing that interoperability could not be ensured without Google having to develop new technical templates. At the moment of ENEL’s request, Google only had templates for media and messaging apps but not for EV charging apps like JuicePass. Following Google’s refusal to develop a new template to ensure interoperability, ENEL complained to the Italian Competition Authority (the “ICA”) which opened an antitrust investigation.
Finding that Google’s conduct constituted an abuse of dominance, the ICA imposed a EUR 102 million fine on Google and ordered it to take the steps necessary to make JuicePass available on Android Auto. The ICA applied the so-called essential facilities doctrine to establish an abuse. The doctrine entails that a dominant company, having control over an infrastructure, under exceptional circumstances may be obliged to supply third parties. This only applies if access to the infrastructure is indispensable to compete on a downstream market and third parties thus lack alternatives to operate on that market. According to established case-law, a dominant company’s refusal to conclude a contract can only be abusive if the strict so-called Bronner criteria (deriving from the ECJ’s judgment in the Bronner case) are fulfilled, notably the indispensability criteria.
The ICA considered that access to the Android Auto platform was indispensable despite the fact that JuiceApp could be downloaded by users directly on their smartphones and that the app had experienced growth on the market. Following Google’s appeal against the ICA’s decision, the case found its way to the ECJ through the Italian Council of State which requested a preliminary ruling on the interpretation of the essential facilities doctrine vis à vis digital platforms.
The ECJ judgment
The ECJ ruled that a refusal by a dominant company to ensure that its platform is interoperable with a third-party app can be contrary to Article 102 TFEU even where access to the platform is not indispensable to the commercial operation of the third-party app.
The Court recognised that the refusal to conclude a contract with a competitor is detrimental to the freedom of contract and the right to property, and that an undertaking, even if dominant, should in principle remain free to refuse access to the infrastructure it has developed for its own needs. By contrast, it found that the Bronner-criteria do not apply in cases where a platform has not been developed solely for the dominant company’s own needs. The Court thus distinguishes between platforms that are developed solely for the needs of the dominant company and platforms that are developed with a view to enable third-party use. By distinguishing these types of platforms, the Court appears to facilitate antitrust interventions against open-ended digital platforms that allow certain third parties to use the platform but not others.
The Court also found that a refusal to ensure interoperability may have anticompetitive effects even if the third-party app and its competitors remain active on the market and are able to grow. Thus, the fact that competitors are not foreclosed from the market cannot by itself mean that the conduct is incapable of producing anticompetitive effects.
The Court further acknowledged that a dominant company may refuse to ensure the interoperability of a third-party app if there are objective justifications, such as the need to protect the platform’s integrity or security or if technical limitations make interoperability impossible. In the absence of objective justifications, the dominant company must take necessary action to ensure interoperability within a reasonable time, such as to develop a new template. In such case, the Court clarifies that the dominant company may charge an appropriate financial compensation (fair, proportionate and cost-oriented) from the third-party app developer requesting interoperability.
Implications
Although it is for the Italian court to rule on the facts of the case based on the ECJ’s guidance, it is clear that the ECJ has revised the case-law on refusal to conclude contracts. The indispensability criteria established by the Bronner-case no longer apply to digital platforms which are designed to be open for third-party use. This may lower the threshold for competition authorities to intervene and impose access obligations on dominant digital platforms in the future. Access and interoperability restrictions by dominant digital platforms may be objectively justified if for example the security/integrity of the platform is compromised or if interoperability is technically impossible.
The judgment is significant because the Bronner-criteria previously limited the essential facilities doctrine to exceptional circumstances, as it restricts the dominant company’s freedom to conduct business and freedom of contract. The Android Auto judgment may strengthen the already tough antitrust enforcement against dominant digital platforms, in particular if third parties increasingly complain to competition authorities about refusals to access platforms. Another subject which likely will give rise to interpretation is how to determine an appropriate financial compensation.