62023CJ0233_RES
Case C‑233/23
Alphabet Inc. and Others
v
Autorità Garante della Concorrenza e del Mercato
(Request for a preliminary ruling from the Consiglio di Stato)
Judgment of the Court (Grand Chamber) of 25 February 2025
(Reference for a preliminary ruling – Competition – Dominant position – Article 102 TFEU – Digital markets – Digital platform – Refusal of an undertaking in a dominant position which has developed a digital platform to allow access to that platform by a third-party undertaking which has developed an app, by ensuring that platform is interoperable with that app – Assessment of whether access to a digital platform is indispensable – Effects of the conduct at issue – Objective justification – Need for the undertaking in a dominant position to develop a template for a category of apps in order to allow access – Definition of the relevant downstream market)
Dominant position – Abuse – Refusal of an undertaking in a dominant position to allow another undertaking access to a product or service necessary for its business – Infrastructure developed by the undertaking in a dominant position to enable its use by third party undertakings and not solely for the needs of its own business – Assessment of whether abusive – Application of the condition regarding whether access to that infrastructure by the undertaking requesting access is indispensable – None
(Art. 102 TFEU)
(see paragraphs 37-52)
Dominant position – Abuse – Concept – Objective concept relating to conduct which is such as to influence the structure of a market and having the effect of hindering the maintenance or growth of competition – Obligations on the dominant undertaking – Competition on the basis of merit – Criteria for assessment – Evidence of practices capable of having anticompetitive effects on the market – Circumstances which may be taken into consideration
(Art. 102 TFEU)
(see paragraphs 54-61)
Dominant position – Abuse – Refusal by an undertaking in a dominant position which owns a digital platform to ensure that an app developed by a third-party undertaking is interoperable with that platform – Objective justification – Conditions – Burden of proof – Obligations of the undertaking in a dominant position in the event of an unjustified refusal
(Art. 102 TFEU)
(see paragraphs 70-81)
Dominant position – Relevant market – Definition – Distinct markets – Identification of the downstream market – Criteria for assessment – Identification of a potential market – No obligation to define precisely the product market and geographic market in question
(Art. 102 TFEU)
(see paragraphs 83-86)
Résumé
Ruling on a request for a preliminary ruling, the Court of Justice, sitting as the Grand Chamber, clarifies the conditions under which the refusal by an undertaking in a dominant position to ensure its digital platform is interoperable with a third-party application may be abusive and have anticompetitive effects. It also clarifies the circumstances which may be relied on as an objective justification for such a refusal and the obligations on the dominant undertaking where such a refusal is not justified.
Google LLC is a subsidiary of Alphabet Inc., which controls Google Italy Srl, established in Italy. In 2015, Google launched Android Auto, which allows users of mobile devices running the Android OS operating system to access apps on those devices directly on the screen of the infotainment system of a motor vehicle.
In 2018, Enel X Italia Srl, a company in the Enel group, which manages more than 60 % of the charging stations available for electric motor vehicles in Italy, requested Google to take the actions necessary to ensure that JuicePass, its electric car charging application, would be interoperable with Android Auto.
Faced with Google’s refusal, Enel X Italia brought the matter before the Italian competition authority. In a 2021 decision, the Italian competition authority found that Google’s conduct consisting of obstructing and delaying making the JuicePass app available on Android Auto constituted an abuse of a dominant position within the meaning of Article 102 TFEU and imposed a fine of more than EUR 100 million on Alphabet, Google and Google Italy.
Those companies brought an action against that decision before the Italian administrative court. That action having been dismissed, they brought an appeal before the Consiglio di Stato (Council of State, Italy), which decided to put questions to the Court regarding the interpretation of the concept of ‘abuse of a dominant position’, within the meaning of Article 102 TFEU, where there was a refusal of access such as that at issue in the present case.
Findings of the Court
After declaring the request for a preliminary ruling to be admissible, the Court examines, in the first place, whether the refusal by a dominant undertaking which has developed a digital platform to ensure interoperability with an app developed by a third-party undertaking, at the latter’s request, is capable of constituting an abuse of a dominant position even though that platform is not indispensable for the commercial operation of that application on a downstream market within the meaning of the case-law stemming from the judgment in Bronner. (
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)
The Court first recalls that Article 102 TFEU punishes conduct on the part of undertakings in a dominant position such as practices having the effect of hindering, through means other than competition on the merits, the maintenance or growth of competition in a market in which the degree of competition is already weakened, precisely because of the presence of one or more undertakings in a dominant position.
In that context, the Court of Justice held, in the judgment in Bronner, that a refusal to grant access to infrastructure developed and owned by a dominant undertaking for the purposes of its own business may constitute an abuse of a dominant position provided not only that that refusal is likely to eliminate all competition in the market in question on the part of the entity requesting access and that such a refusal is incapable of being objectively justified, but also that the infrastructure, in itself, is indispensable to carrying on that undertaking’s business, inasmuch as there is no actual or potential substitute in existence for that infrastructure.
In that regard, the Court of Justice points out that the imposition of those conditions was justified by the specific circumstances of the Bronner case, which consisted in a refusal by a dominant undertaking to give a competitor access to infrastructure which it had developed for the needs of its own business, to the exclusion of any other conduct.
To require an undertaking in a dominant position, on account of its refusal being abusive, to contract with a competitor in order to allow it access to that infrastructure is especially detrimental to its freedom of contract and its right to property. In addition, if such access were granted too easily, a dominant undertaking would be less inclined to invest in efficient facilities and the development of high-quality products and services, in the interest of consumers, and other undertakings would have no incentive to develop competing facilities.
By contrast, where an undertaking in a dominant position has developed infrastructure with a view to enabling third-party undertakings to use that infrastructure, the condition laid down by the Court of Justice in the judgment in Bronner, relating to whether that infrastructure is indispensable for carrying on the business of the entity applying for access, does not apply, since it is not justified by the preservation of the freedom of contract and the right to property of the undertaking in a dominant position, or by the need to provide that undertaking with an incentive to invest. The fact of requiring an undertaking in a dominant position to provide access to infrastructure developed with a view to it being used by third-party undertakings does not fundamentally alter the economic model which applied to the development of that infrastructure.
In the present case, subject to verification by the referring court, it appears that the digital platform was not developed by the undertaking owning that platform solely for the needs of its own business, since access to that digital platform was open to third-party undertakings. Therefore, the refusal to allow access to that digital platform is capable of constituting an abuse of a dominant position, even though that platform is not indispensable for the commercial operation of the app concerned on the downstream market, but is such as to make it more attractive to consumers.
In the second place, the Court holds that, even if both the undertaking which requested a dominant undertaking to ensure interoperability with its digital platform and competitors of the first undertaking continued to be active on the market concerned and grew their position on that market, even though they did not benefit from such interoperability, that fact is not in itself such as to indicate that the refusal by the dominant undertaking to act on that request was incapable of having anticompetitive effects.
The Court recalls that the conduct of an undertaking in a dominant position may be characterised as abuse provided that it is demonstrated that, by methods other than competition on the merits, that conduct has the actual or potential effect of restricting competition by excluding equally efficient competitors from the market or markets concerned, or by hindering their growth on those markets.
However, that characterisation does not require it to be proved that the desired result of such conduct intended to drive the undertaking’s competitors from the market concerned has been achieved. Therefore, a competition authority may find an infringement of Article 102 TFEU by demonstrating, on the basis of tangible evidence, that the conduct at issue was actually capable of having anticompetitive effects.
The maintaining of the same degree of competition on the market concerned, or even the growth of competition on that market, does not necessarily mean that the conduct at issue is incapable of having anticompetitive effects. In particular, the Court notes the question of whether such conduct is abusive does not depend on the ability of competitors to mitigate such effects.
The Court examines, in the third place, the objective justifications which may be relied on as a basis for a refusal of access such as that at issue and any obligations on the dominant undertaking where such a refusal is not justified. It observes in that regard that a refusal to ensure a third-party application is interoperable with the digital platform of an undertaking in a dominant position may be objectively justified where to grant such interoperability would compromise the integrity or security of the platform concerned, or where other technical reasons would make interoperability impossible.
If that is not the case, the undertaking in a dominant position is required to ensure interoperability within a reasonable period, taking into account both the difficulties encountered by that undertaking in that development and the needs of the third-party undertaking, and in return for, depending on the circumstances, appropriate financial consideration, which must be fair and proportionate, having regard to the actual cost of development and the right of the undertaking in a dominant position to derive an appropriate benefit from it.
In the fourth and final place, the Court finds that, in order to assess whether there is an abuse consisting of a refusal, by an undertaking in a dominant position, to ensure that a third-party app is interoperable with its digital platform, a competition authority may confine itself to identifying the market on which that refusal is capable of having anticompetitive effects, namely the downstream market, even if that market is merely a potential market. Such identification does not necessarily require a precise definition of the product and geographic market in question, in particular where the downstream market is developing or is evolving rapidly, so that its scope is not fully defined at the time when the allegedly abusive conduct is implemented.
(
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)	Judgment of 26 November 1998, Bronner (C‑7/97, EU:C:1998:569).