Judgment;Abstract — ECLI:EU:C:2025:987
Date: 2025-12-18
Language of the case: Bulgarian
Court formation: Third Chamber
Procedure: Reference for a preliminary ruling
Origin: Bulgaria

Summary C-245/24 – 1 
Case C-245/24 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice  
Date lodged:  
5 April 2024 
Referring court:  
Administrativen sad Sofia-oblast (Bulgaria) 
Date of the decision to refer:  
5 April 2024 
Applicants: 
‘LUKOIL Bulgaria’ EOOD 
‘LUKOIL Neftohim Burgas’ AD 
Defendant:  
Komisia za zashtita na konkurentsiata 
  
Subject matter of the main proceedings 
Action brought by ‘LUKOIL Bulgaria’ EOOD and ‘LUKOIL Neftohim Burgas’ 
AD against Decision No 332/04.04.2023 of the Komisia za zashtita na 
konkurentsiata (Commission on Protection of Competition; ‘the KZK’) 
establishing an infringement of Article 21(2) and (5) of the Zakon za zashtita na 
konkurentsiata (Law on the Protection of Competition) and of point (b) of the 
second paragraph of Article 102 TFEU and imposing a financial penalty. 
Subject matter and legal basis of the request 
Interpretation of EU law pursuant to Article 267 TFEU 
EN 
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Questions referred for a preliminary ruling 
1. Where the national competition authority has identified different types of 
behaviours, some of which have been classified as a refusal to grant access to an 
essential facility and others as a restriction of trade, but which have been 
combined into an overall strategy of the undertaking, is it permissible to find there 
to have been a single infringement under Article 102 TFEU or must separate 
infringements, classified respectively as a refusal to grant access to an essential 
facility and a restriction of trade, be found to have been committed? 
2. Must the competition authority exclude the application of the Bronner test to 
the alleged infringement under Article 102 TFEU in the form of a refusal to 
supply in all cases where the undertaking in a dominant position in relation to the 
essential facility has received public funding (on the basis of a privatisation 
contract/a concession), or is it necessary to assess the amount of the investment, 
the performance of the privatisation contract/concession (on the basis of which the 
essential facility was acquired) and whether the investment was made in 
connection with the performance of the investment contract/concession or on that 
undertaking’s own initiative? 
2.1 If the foregoing question is answered in the affirmative, is observance of the 
principle of proportionality set out in [paragraph 75 of the] Guidance on the 
enforcement of Article 102 … TFEU (Section [‘IV.][D. Refusal to supply and 
margin squeeze’]) ensured, where the dominant undertaking has invested in the 
essential facility, by applying restrictive criteria determined on the basis of the 
principle of ‘that which is most necessary’ for preserving competition, with 
proportionate account being taken of the interests of the dominant undertaking? 
Provisions of European Union law and case-law relied on  
Treaty on the Functioning of the European Union, in particular point (b) of the 
second paragraph of Article 102 and Article 267 
Charter of Fundamental Rights of the European Union (‘the Charter’), in 
particular Articles 41 and 47 
Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation 
of the rules laid down in Articles [101] and [102] of the Treaty, in particular 
Article 3 and Article 27 
Communication from the Commission – Guidance on the Commission’s 
enforcement priorities in applying Article [102 TFEU] to abusive exclusionary 
conduct by dominant undertakings, in particular paragraphs 13 to 15, 75, 82 
Commission Notice on the definition of relevant market for the purposes of 
Community competition law (97/C 372/03) 
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Commission Decision of 15 October 2014, АТ.39523 Slovak Telekom 
Judgment of 26 November 1998, Bronner, C-7/97, EU:C:1998:569 
Judgment of the General Court of 18 November 2020, Lietuvos geležinkeliai v 
Commission, T-814/17, EU:T:2020:545 
Opinion of Advocate General Rantos of 7 July 2022 in Lietuvos geležinkeliai v 
Commission, C-42/21 P, EU:C:2022:537 
Judgment of 12 January 2023, Lietuvos geležinkeliai v Commission, C-42/21 P, 
EU:C:2023:12 
Judgment of 18 December 2008, Sopropé, C-349/07, EU:C:2008:746 
Judgment of 1 October 2009, Foshan Shunde Yongjian Housewares & Hardware 
v Council, C-141/08 P, EU:C:2009:598 
Provisions of national law relied on 
Konstitutsia na Republika Bulgaria (Constitution of the Republic of Bulgaria), in 
particular Articles 17 and 18 
Administrativnoprotsesualen kodeks (Code of Administrative Procedure; ‘the 
APK’), in particular Articles 6 and 168 
Zakon za zashtita na konkurentsiata (Law on the Protection of Competition; ‘the 
ZZK’), in particular Articles 8 and 20 and Article 21(2) and (5) 
Zakon za danak varhu dobavenata stoynost (Law on Value Added Tax; ‘the 
ZDDS’), in particular Articles 13 and 16 
Zakon za aktsizite i danachnite skladove (Law on excise duties and tax 
warehouses; ‘the ZADS’) 
Pravilnik za prilagane na Zakona za aktsizite i danachnite skladove (Rules on the 
implementation of the Law on excise duties and tax warehouses; ‘the PPZADS’) 
Zakon za zapasite ot neft i neftoprodukti (Law on petroleum and petroleum 
products stocks; ‘the ZZNN’) 
Metodika za izvarshvane na prouchvane i opredelyane na pazarnoto polozhenie na 
predpriatiata na saotvetnia pazar (Methodology for conducting a market 
investigation and determining the market position of undertakings on the relevant 
market), adopted by KZK Decision No 393/21.04.2009. 
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Succinct presentation of the facts and procedure in the main proceedings 
1 Acting in accordance with its Decision No 268/16.04.2020, the KZK initiated a 
procedure, under reference number KZK-255/2020, to determine whether there 
were any infringements of Article 15 and Article 21 of the ZZK and/or of 
Article 101 and Article 102 TFEU in the setting of the prices of common 
automotive fuels along the production/import-storage-wholesale-retail chain, both 
at the individual horizontal levels and vertically, by 11 undertakings (including 
‘Lukoil Neftohim Burgas’ and ‘Lukoil Bulgaria’), following a complaint from the 
Varhovna administrativna prokuratura (Supreme Administrative Public 
Prosecutor’s Office; ‘the VAP’) concerning the incongruity between the 
significant fall in the global price of crude oil (by 47.4%) in March 2020 and the 
fall in retail automotive fuel prices in Bulgaria (by some 11%) in the same period. 
The VAP also submitted data on the average prices of fuels placed on the market 
from tax warehouses, including excise duty and VAT, and a complaint from a 
member of the public claiming that there was speculation with the retail price of 
fuel in Bulgaria, in the light of the fall in crude oil prices on the world market. 
2 According to a market analysis by the Agentsia ‘Mitnitsi’ (Customs Agency), the 
average daily prices of petrol and diesel fell by an average of BGN 0.07 or 4.5% 
in the period from 30 March to 5 April 2020. Fuel prices at distribution points for 
end consumers (petrol stations) reacted to the change in the price of crude oil on 
the stock market a week later (around 12 March 2020). That analysis also shows 
that, in the last two weeks of March and the first week of April 2020, during 
which there was a gradual fall in the prices of energy products in Bulgaria, all of 
the leading fuel retail chains reacted. 
3 The subject matter of the review conducted in the procedure before the KZK was 
the conduct of ‘Lukoil Neftohim Burgas’ and ‘Lukoil Bulgaria’ in restricting 
access to tax warehouses and transport infrastructure, liable to restrict the import 
of fuels into Bulgaria. 
4 Since 10 December 2018, the capital of the company ‘Lukoil Neftohim Burgas’ 
has been divided into 99 397 192 shares, of which ‘Lukoil Europe Holdings’ B.V. 
holds 89.97% and PAO ‘Lukoil’ 9.88%. The ultimate controlling entity is PAO 
‘Neftianaia kompania LUKOIL’ [in the] Russian Federation. The shares are 
subdivided into two classes: class A – a share which is held by the Republic of 
Bulgaria and gives it special rights, and class B – the remaining shares. The 
general meeting of the company may not, without the prior written consent of the 
State as holder of the class A share, take any decision to cease or substantially 
restrict the processing of petroleum or the production of fuels, or refuse access to 
port facilities and product pipelines in return for appropriate consideration, in 
relation to: (a) State authorities in connection with the performance of the tasks 
imposed on them by law in respect of quantities notified by them in accordance 
with a pre-agreed schedule; (b) undertakings or entities determined by decision of 
the Government of Bulgaria or an authority expressly designated by it, where: • 
that lies within the spare capacity of the product pipeline; • the technical 
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possibilities of the product pipeline permit that; and • the undertaking’s normal 
production capacity is not impeded. 
5 The company ‘Lukoil Neftohim Burgas’ acquired almost all of its oil depots and 
associated pipeline infrastructure in the course of the privatisation of the State 
undertaking ‘Neftohim’ EAD in the late 20th and early 21st centuries. The 
group’s transport and logistics infrastructure was built by the State using public 
funds in the 1970s and is unique in the country and the region. It enables 
automotive fuels from the Black Sea coast to be transported to the capital and 
fuels from oil depots to be stored and transported to Bulgaria’s largest cities 
(Burgas, Stara Zagora, Plovdiv, Sofia). Following the privatisation of the State-
owned undertaking ‘Neftohim’, the infrastructure became the property of the 
Lukoil Group. 
6 With its own refinery for primary petroleum processing, the company ‘Lukoil 
Neftohim Burgas’ is the most significant producer of petroleum products in 
Bulgaria. The undertaking imports petroleum and fuel oil, processes and produces 
petroleum products, sells them on the domestic market and exports petroleum 
products (wholesale, including as intra-Community supplies). That undertaking 
has sea, rail and road transport terminals. Petroleum unloaded from tankers and 
petroleum products are loaded onto the undertaking’s own tanks and transported 
to their destinations. The undertaking operates from two sites connected by 
pipelines: the ‘Lukoil Neftohim Burgas’ production site, which is owned by the 
undertaking itself, and the ‘Rosenets’ port terminal, a State-owned facility 
awarded by a decision of the Government of the Republic of Bulgaria in 2011 
under a service concession contract. In the period from 1 January 2016 to 30 June 
2020, ‘Lukoil Neftohim Burgas’ AD supplied petrol A-95H, diesel automotive 
fuel and the corresponding biofuels for export via various contractual partners. 
7 In the period from 1 January 2016 to 15 December 2020, ‘Lukoil Europe 
Holdings’ B. V., based in the Netherlands, was the sole proprietor of the capital of 
the company ‘Lukoil Bulgaria’, sole proprietorship having passed thereafter to 
another company within the Lukoil economic group, namely ‘LITASCO’ SA, 
based in Switzerland. 
8 The main business of ‘Lukoil Bulgaria’ includes the wholesale and retail trade in 
fuels and petroleum products, the blending of mineral fuel with bio-additives at 
petroleum supply depots, and transport and forwarding activities. In the period 
from 1 January 2016 to 30 November 2020, ‘Lukoil Bulgaria’ owned three excise 
warehouses in Bulgaria. The Burgas-Sofia pipeline and associated petrol depots 
are authorised as one tax warehouse. 
9 On the basis of the economic and legal analysis carried out, the KZK found in its 
decision No 332/04.04.2023 that the Lukoil Group had infringed Article 21(2) and 
(5) of the ZZK and point (b) of the second paragraph of Article 102 TFEU, 
consisting in the abuse of a dominant position on the market for the storage of 
automotive fuels, by [not] granting importers and producers of fuels access to its 
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own tax warehouses, restricting imports by sea by blocking the tax warehouses 
linked to the ‘Rosenets’ and ‘Petrol Varna’ terminals, and refusing to grant access 
to the group’s petroleum product pipelines for the transport of other producers’ 
and importers’ fuels, which is capable of preventing, restricting or distorting 
competition and adversely affecting the interests of consumers, inasmuch as it 
restricts the import of automotive fuels into Bulgaria. 
The essential arguments of the parties in the main proceedings in connection 
with the first question referred for a preliminary ruling 
10 For the purposes of its investigation, the KZK defined one product market, namely 
the internal market in fuel storage. Thereafter, the regulatory authority subdivided 
that market into two submarkets: fuel storage under the ZADS and fuel storage 
under the ZZNN. These are in turn subdivided into two further submarkets: diesel 
storage and petrol storage. The KZK found that the Lukoil Group had devised an 
overall strategy for abusing its dominant position on the market in fuel storage 
which was liable to restrict fuel imports and thereby to reduce competitive 
pressure on the wholesale market, and designed to maintain the group’s leading 
position at the vertically connected market levels. 
11 When examining the Lukoil Group’s conduct, the KZK drew a distinction 
between two periods. In the first period, there was no legal obligation for 
authorised warehouse keepers to make part of their capacity available for use by 
independent third parties. That period extended from the beginning of the 
investigation period (1 January 2016) to 22 December 2020, the date of expiry of 
the three-month time limit for adapting the activities of warehouse keepers to the 
new requirements introduced under amendments made to the ZADS and the 
PPZADS in July and September 2020 and designed to strengthen control over tax 
warehouses. [Under those amendments,] authorised warehouse keepers are 
obliged to make at least 15% of their total maximum capacity for the storage of 
energy products available for use by independent third parties. The second period 
began on 23 December 2020, the point from which warehouse keepers were 
obliged to make that spare capacity available for use by third parties. 
12 The KZK argues that an infringement has been committed in the form of several 
types of abuse of a dominant position that serve a common anti-competitive 
objective. On account of the different nature of the infrastructure in question and 
the different ownership relationships present, which together lead to differences in 
the ways in which the undertakings [forming the subject of the KZK’s decision 
(‘the addressee undertakings’)] restrict competition, the KZK classified some of 
those behaviours as a refusal to grant access to an essential facility and others as a 
restriction of trade. The bundling of those behaviours into an overall strategy 
justifies their classification as a single infringement both of Article 21(2) and of 
Article 21(5) of the ZZK. The KZK found that Article 21(5) of the ZZK is a sub-
category of Article 21(2) and is therefore, by extension, not a separate constituent 
element [for abuse] in Article 102 TFEU. In European practice, refusals to grant 
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access and other behaviours which hinder competitors, whether through a 
‘constructive’ refusal (Commission Decision AT.39523, Slovak Telekom) or 
through the dilapidation of essential infrastructure (judgment of the General Court 
of 18 November 2020, T-814/17, Lietuvos geležinkeliai v Commission), are 
classified as a restriction of trade for the purposes of point (b) of Article 102 
TFEU. 
13 The undertakings submit that a claim of refusal to grant access such as that 
pursued here would in practice have the consequence of compelling the owner to 
allow a third party to use the owner’s property against its will (installations, 
technical infrastructure networks, patents, intellectual property rights). This is one 
of the most serious infringements of the right to property and the freedom to 
conduct a business. The standards of proof are therefore extremely strict and the 
assessment of such proof must be carried out with greater caution than in the case 
of any other type of infringement of Article 102 TFEU. In the present case, import 
volumes on the markets concerned, for the production and import of automotive 
fuels (according to the KZK, of petrol and diesel), are well above the European 
average, with petrol imports being among the highest. In the presence of such data 
for the market concerned, any interference with the rights of the accused persons 
is of exceptional [and] unprecedented seriousness. 
14 The right to property and the freedom to conduct a business are expressly 
guaranteed by the Constitution of the Republic of Bulgaria. The right to property 
is also protected by the Charter of Fundamental Rights of the European Union. It 
is stated that the conditions laid down in Article 52(1) of the Charter are not 
theoretical provisions having no practical application but must be put into practice 
in the examination of the present case. 
The essential arguments of the parties in the main proceedings in connection 
with the second and third questions referred for a preliminary ruling 
15 According to the KZK, the fact that the Lukoil Group acquired almost all depots 
and pipelines in the course of the privatisation of the State-owned undertaking 
‘Neftohim’ means that protecting the public interest in the development of 
competition on the automotive fuel markets takes precedence over protecting the 
interests of the infrastructure owner, since the latter did not invest in the 
construction of that infrastructure. 
16 The applicants contend that the infrastructure was in very poor condition when 
acquired from the State and did not meet the state-of-the-art requirements as 
regards safety and maintaining the quality of the transported product. Both 
undertakings have made enormous investments in the infrastructure. Moreover, 
part of the infrastructure was not acquired in the course of privatisation, but was 
purchased. 
17 According to the KZK, most of the infrastructure was acquired in the course of 
privatisation and was not built by the addressee undertakings. The infrastructure 
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itself, a collection of warehouses and pipelines, is unique in Bulgaria and is 
impossible to duplicate now that State ownership has been abolished. Ongoing 
repairs and maintenance of the group’s existing assets are not uncommon features 
of the business of any undertaking managing an asset, be it a building or any other 
type of facility. It is clear that those costs are inherent in maintaining logistical 
infrastructures and installations and have to do primarily not only with the 
investment obligations entered into under the privatisation contracts but also with 
the management and maintenance obligations connected with the ‘Rosenets’ port 
terminal area awarded under the concession. The KZK concludes that the two 
circumstances that rule out the application of the Bronner test are not to be applied 
cumulatively. Rather, each individual circumstance is a sufficient ground for 
ruling out that test. The KZK claims that the application of the Bronner test in the 
present case is ruled out for the following reasons: 
– acquisition of infrastructure built using public funds – for the entire period from 
1 January 2016 to 31 March 2021 as regards certain storage depots, technical 
pumping stations and as regards all of the group’s pipelines and product pipelines; 
– existence of a legal obligation to grant access – for the period from 
23 December 2020 to 31 January 2021 as regards the abovementioned 
infrastructure, with the exception of the Burgas – Sofia product pipeline. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
18 According to the market analysis in the KZK’s decision, the Lukoil Group is the 
largest authorised warehouse keeper for automotive fuels in Bulgaria and has 
unique transport and storage infrastructure that enables it to act as a market leader 
in the wholesale and retail trade in automotive fuels. It is assumed that, from the 
beginning of the investigation period (1 January 2016) until at least 31 March 
2021, that group did not allow any fuels from importers into the tax warehouses 
which it operates. This means that the group did not accept from importers 
imported/intra-Community acquired fuels for the purposes of the ZADS, and, in 
cases where emergency stockpiling services were provided, the fuel quantities 
were purchased by ‘Lukoil Bulgaria’. What is more, during the period in question, 
no goods with a consignee not belonging to the Lukoil Group were unloaded 
(delivered) at the ‘Rosenets’ port terminal either. It was found that the existence of 
sufficient spare capacity in the tax warehouse was established, this being a 
condition for the import/intra-Community acquisition of fuels. 
19 In its decision, the KZK considered the two infringements together, without 
identifying the relevant and affected market in relation to each individual 
infringement. 
20 In accordance with Article 41 of the Charter, the right to good administration is a 
fundamental right of natural and legal persons. The provision of a grant 
constitutes direct application of EU law and means that the authorities responsible 
for applying the law are under an obligation to comply with Article 41. That 
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article is an expression of a general principle of EU law the observance of which 
the Court of Justice has consistently required in its case-law because it is an 
element of the rights of the defence (judgments of 18 December 2008, Sopropé, 
C-349/07, EU:C:2008:746, paragraph 37, and of 1 October 2009, Foshan Shunde 
Yongjian Housewares & Hardware v Council, C-141/08R, EU:C:2009:598, 
paragraph 83). The Court of Justice has recognised the right of legal persons to be 
heard before a legal act adversely affecting them is adopted as a general rule of 
EU law, irrespective of whether that right is expressly provided for in the relevant 
EU act relating to the legal relationship in question. The Court of Justice has held 
that ‘the authorities of the Member States are subject to that obligation when they 
take decisions which come within the scope of Community law, even though the 
Community legislation applicable does not expressly provide for such a 
procedural requirement’ (judgments of 18 December 2008, Sopropé, C-349/07, 
EU:C:2008:746, paragraph 38, and of 1 October 2009, Foshan Shunde Yongjian 
Housewares & Hardware v Council, C-141/08R, EU:C:2009:598, paragraph 83). 
21 In accordance with the first paragraph of Article 47 of the Charter, everyone 
whose rights and freedoms guaranteed by the law of the Union are violated has the 
right to an effective remedy before a tribunal in compliance with the conditions 
laid down in that article. This raises the question as to whether the guaranteed 
right of defence of the persons involved as persons who have infringed the law are 
violated by the fact that two infringements of Article 21(2) and (5) of the ZZK are 
alleged, but in the absence of any examination of the relevant markets in relation 
to each of the individual infringements claimed or of all of the circumstances 
relevant to each infringement. That question is also important in view of the fact 
that, if found to exist, an infringement in the form of a refusal to supply 
constitutes a sufficient interference with the right to property and the freedom to 
conduct a business of the person concerned, as guaranteed by the Constitution of 
the Republic of Bulgaria and the Charter. 
22 The chamber seised must examine of its own motion whether the administrative 
authority complied with all of the procedural rules of administrative law when 
adopting the contested administrative act imposing a financial correction. In order 
to decide the present case correctly, it is necessary to examine whether the 
competition authority should have expressly, clearly and unambiguously defined 
for each individual infringement the relevant market, the market concerned, the 
specific unlawful acts adversely affecting competition, the anti-competitive effects 
and all other circumstances relevant to the factual constituent elements for each 
infringement of Article 21(2) and (5) of the ZZK and Article 102 TFEU – namely: 
(a) refusal to supply; and (b) restriction of production, sales and technical 
development to the detriment of the consumer. It is for these reasons that the 
Chamber refers the first question for a preliminary ruling. 
23 By way of grounds for referring the second question, the referring court notes that 
a key factor in concluding that the factual constituent elements of an infringement 
of Article 21(5) of the ZZK are present is the fact that the two undertakings 
refused access to their essential infrastructure. It is common ground that, during 
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the first period of the alleged infringements, from 1 January 2016 to 22 December 
2020, the owners of authorised excise warehouses were under no obligation to 
make some of their capacity available to their competitors. It was for this reason 
that the KZK found that there had been a ‘constructive refusal’ on the part of the 
addressee undertakings to grant access to third parties. 
24 In its decision, the KZK states that the Bronner criteria are not applicable where 
the infrastructure concerned is financed not through the dominant undertaking’s 
own investments but (as is the case here) from public funds and where the 
undertaking concerned is not the owner of that infrastructure but uses it under a 
concession or lease contract. Those criteria are intended to apply to the refusal of 
access to an infrastructure which is owned by the dominant undertaking and which 
that undertaking has developed for its own activities through its own investments. 
25 In their practice, the European Commission and the courts rely on the Bronner test 
when assessing whether there is an infringement of competition rules in the event 
of a refusal to supply by the dominant undertaking. That test covers the following 
cumulative elements: the refusal is liable to lead to the elimination of all 
competition on the market concerned on the part of the person requesting the 
supply; the refusal cannot be objectively justified; the services/goods to which 
access is refused are indispensable to the carrying on of the business of the person 
requesting the supply as there is no actual or potential substitute in existence. 
Accordingly, the first and most important condition is that the essential facility 
must exist and be controlled by the monopoly holder, and that access to that 
facility must be indispensable to the ability of competitors to compete with the 
monopoly holder. 
26 In the present case, given the exceptional circumstances (privatisation and 
concession) linked to the process by which the entire infrastructure at issue was 
acquired and is used by the Lukoil Group, account is also taken of the specific 
features of the privatisation contract concluded, with due regard for the public 
interest, under a particular administrative procedure. It is for this this reason that 
privatisation contracts often contain obligations that differ from those typical of a 
purchase agreement concluded under civil and commercial law. These include the 
purchaser’s binding obligations additional to the obligation to pay the purchase 
price, such as to make investments, to maintain existing jobs and create new ones, 
to implement environmental protection measures, to maintain the object of the 
activity for a period of time laid down in the contract, a time limited ban on 
selling the undertaking or parts thereof, and so on. If a privatisation contract lays 
down an obligation to invest, such investments are precisely defined as to type, 
amount and duration and are not the result of an incentive to the undertaking 
acquiring the State-owned property. Since, in the present case, the undertaking’s 
infrastructure was acquired as part of the privatisation of the State-owned 
undertaking, it is important to bear in mind that the group’s transport and logistics 
infrastructure was built by the State using public funds. After the State-owned 
undertaking ‘Neftohim’ had been privatised, its infrastructure became the property 
of the Lukoil Group. According to the KZK, however, that fact does not make it 
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necessary to apply the Bronner test, since, in the present case, there are no 
economic investment incentives the protection of which outweighs the public 
interest in undistorted competition. 
27 The KZK found that two reasons preclude the application of the Bronner test: (a) 
failure on the part of the dominant undertaking to meet a legal obligation to grant 
access to its infrastructure/service (typical of a statutory monopoly or stemming 
from a previous State monopoly); and/or (b) failure on the part of the dominant 
undertaking to invest in the construction of the infrastructure because that 
infrastructure was built and developed using public funds. The first reason is not 
the subject of the request for a preliminary ruling because, as explained above, the 
dominant undertaking was not under any legal obligation in the period from 
1 January 2016 to 22 December 2020. 
28 The KZK assumes that the Bronner test is not applicable where the dominant 
undertaking has received an essential facility from the State and the investments 
made do not outweigh the public interest. 
29 The companies accused of the infringements in question have countered this by 
arguing that they have made substantial investments in the undertakings since the 
privatisation contracts were concluded, and evidence of investments made in the 
applicants’ essential facility has been gathered. 
30 The question that must be answered in order to be able to conclude whether the 
Bronner test is not applicable where the dominant undertaking has acquired an 
essential facility from the State (privatisation and concession) is whether other 
circumstances – such as fulfilment of the obligations under the privatisation 
contract, the amount of the investment and whether the investment was made on 
that undertaking’s own initiative or in connection with the performance of the 
investment contract – should be taken into account, too. 
31 The Opinion of Advocate General Rantos of 7 July 2022 in Lietuvos geležinkeliai 
v Commission, C-42/21 P, EU:C:2022:537, does not answer these questions. In 
that Opinion, Advocate General Rantos provides an overview of the case-law on 
refusals to grant access and on the application of the Bronner test. In point 64, the 
Advocate General discusses the purposes of the Bronner test, which is regarded as 
the fundamental criterion for assessing whether an undertaking has an obligation 
to grant access to an ‘infrastructure it has developed for its own needs’, for the 
protection of the undertaking’s ‘initial incentive to construct such infrastructure’. 
Analysing the purposes of the Bronner test, Advocate General Rantos states that 
‘the criteria set out [in the judgment in Bronner] apply to infrastructure of which 
the dominant undertaking is the owner and which, in principle, result from its own 
investment’. In the present case, the KZK found that, by converse inference, it 
follows from the view of Advocate General Rantos that the Bronner criteria are 
not applicable, since the investments by the dominant undertaking were not made 
out of its own funds. At the same time, the decision of the KZK was signed with 
dissenting opinions from two of its members, who, in their statement of reasons, 
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refer also to the judgment of 12 January 2023, Lietuvos geležinkeliai v 
Commission, C-42/21 P, EU:C:2023:12, in which it was held that the infringement 
in question did not constitute a refusal to supply but another infringement 
altogether. 
32 On the same grounds, the KZK found that the Bronner test was not applicable to 
the essential infrastructure acquired by concession during the period at issue. 
33 In accordance with Article 6 of the APK, the principle of proportionality is to be 
applied where the public and private interests are commensurate. 
34 In their practice and case-law respectively, the European Commission and the 
Court of Justice have established that a refusal to supply is an exceptional measure 
which worst affects the rights of the persons affected by it. The most important 
factor in the assessment is the interests of consumers. On the other hand, the 
interests of the owners of essential infrastructure must also be evaluated, in the 
light of respect for the right to property and promotion of the freedom to conduct a 
business, and with due regard for the principle of proportionality. Bronner is a 
milestone in the development of the European understanding of refusal to supply. 
That judgment sets out the conditions under which a dominant undertaking may 
be compelled to contract against its will. Ultimately, however, the Court of Justice 
held that a refusal to supply had not taken place. 
35 Since the KZK did not apply the Bronner test to the alleged infringement of 
Article 102 TFEU in the form of a refusal to supply, on the ground that its 
application was precluded by the fact that the dominant undertaking’s essential 
facility had been acquired using public funds/on the basis of a concession, it must 
be examined in the present case whether the application of the Bronner test is 
ruled out in all cases where the dominant undertaking has received public funding 
in connection with the essential facility or has acquired that facility on the basis of 
a concession, or whether it is necessary to assess the amount of the investment, 
performance under the privatisation contract or the concession (on the basis of 
which the essential facility was acquired) and whether the investments were made 
in connection with the performance of the investment contract/the concession or 
on that undertaking’s own initiative. 
36 The third question is raised against the background of the wording of 
paragraph 75 of the Guidance on the Commission’s enforcement priorities in 
applying [Article 102 TFEU] to abusive exclusionary conduct by dominant 
undertakings (Section [‘IV.] D. Refusal to supply and margin squeeze’): ‘ …. The 
knowledge that they may have a duty to supply against their will may lead 
dominant undertakings – or undertakings who anticipate that they may become 
dominant – not to invest, or to invest less, in the activity in question. Also, 
competitors may be tempted to free ride on investments made by the dominant 
undertaking instead of investing themselves. Neither of these consequences 
would, in the long run, be in the interest of consumers’.