62024CJ0245_RES
Case C‑245/24
‘Lukoil Bulgaria’ EOODand‘Lukoil Neftohim Burgas’ AD
v
Komisia za zashtita na konkurentsiata
(Request for a preliminary ruling from the Administrativen sad Sofia-oblast)
Judgment of the Court (Third Chamber) of 18 December 2025
(Reference for a preliminary ruling – Competition – Article 102 TFEU – Abuse of a dominant position – Market for the storage of automotive fuels – Abuse – Refusal of access to essential infrastructure for third-party undertakings – Infrastructure financed by public funds – Privatisation of that infrastructure)
Questions referred for a preliminary ruling – Admissibility – Need for a preliminary ruling and relevance of the questions referred – Assessment by the national court – Presumption of relevance of the questions referred
(Art. 267 TFEU)
(see paragraphs 21-25)
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 – Refusal of access to infrastructure for the transport and storage of petroleum products – Refusal vis-à-vis third-party undertakings by two companies forming part of the same dominant undertaking – Refusal encompassing several infringements under national law – Abuse of a dominant position – Assessment of the overall conduct for which the dominant undertaking is criticised – Obligation on the part of the national competition authority to examine the abuse of a dominant position with regard to each infringement under national law – None
(Art. 102 TFEU)
(see paragraphs 30-42, operative part 1)
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 – Refusal of access to infrastructure for the transport and storage of petroleum products – Infrastructure developed by the public authorities before being acquired by the dominant undertaking or before the grant of exclusive rights to the latter – Assessment of the abusive nature of the refusal of access to that infrastructure – Assessment on the basis of criteria developed for refusal of access to infrastructure developed by a dominant undertaking for the needs of its own business – Conditions – Full decision-making autonomy of the dominant undertaking concerning access to the infrastructure in question – Dominant undertaking having acquired the infrastructure or the exclusive rights to that infrastructure at a price and under conditions resulting from a competitive procedure
(Art. 102 TFEU)
(see paragraphs 44-57, operative part 2)
Résumé
Hearing a reference for a preliminary ruling, the Court rules on the conditions for applying Article 102 TFEU to a refusal by a dominant undertaking to provide access to essential infrastructure that it owns following the privatisation of a former State monopoly.
On the basis of a privatisation contract concluded in 1999, the Lukoil economic group, to which the undertakings ‘Lukoil Bulgaria’ EOOD (‘Lukoil Bulgaria’) and ‘Lukoil Neftohim Burgas’ AD (‘Lukoil Burgas’) belong, became the owner of transport and storage infrastructure for petroleum products previously operated by a Bulgarian State-owned undertaking. That infrastructure consists in three pipelines and seven oil depots and terminals.
Since that privatisation, Lukoil Burgas, the main producer of petroleum products in Bulgaria, has operated the refinery of Burgas and has had a concession for operating the Rosenets port terminal. Lukoil Bulgaria, which is active in the distribution of petroleum products, has depots spread out across Bulgaria, tax warehouses and a national network of petrol stations.
After finding that, in March 2020, the retail price of fuels had decreased in Bulgaria to a lesser extent than the crude oil price on the global markets, the Komisia za zashtita na konkurentsiata (Commission on Protection of Competition, Bulgaria) (‘the Bulgarian competition authority’) was entrusted with investigating whether any infringements of competition law relating to the setting of retail fuel prices existed.
As a result of the investigation, that authority found that, in the period between 2016 and 2021, Lukoil Bulgaria and Lukoil Burgas had engaged in several types of abuse of a dominant position with a common anticompetitive aim, by refusing other producers or importers of fuels access to the transport and storage infrastructure that they operated. Lukoil Bulgaria and Lukoil Burgas refused those producers and importers, in particular, access to the tax warehouses, the sea depots and the pipelines that they own (‘the actions at issue’).
The Bulgarian competition authority found that some of those actions had to be categorised as ‘refusing, without any justification, to provide goods or services’, within the meaning of the Bulgarian Law on the Protection of Competition, whereas other actions had to be categorised as ‘limiting production, trade and technical development to the prejudice of consumers’, within the meaning of that law. Nevertheless, the fact that those actions were part of a common strategy of the Lukoil Group led that authority to regard them as a single infringement, both of Article 102 TFEU and of provisions of the Law on the Protection of Competition. By way of a penalty, that authority imposed fines on Lukoil Bulgaria and Lukoil Burgas.
After Lukoil Bulgaria and Lukoil Burgas contested that decision before the Administrativen sad Sofia-oblast (Administrative Court, Sofia Province, Bulgaria), that court decided to refer several questions for a preliminary ruling concerning the assessment of the actions at issue in the light of Article 102 TFEU.
Findings of the Court
Pointing out that, according to the Bulgarian competition authority, some of the actions at issue can be regarded as a refusal of access to facilities forming part of one and the same essential infrastructure, while other actions constitute restrictions of trade, the referring court asks, in the first place, whether the categorisation of the actions at issue as abuse of a dominant position within the meaning of Article 102 TFEU requires that the Bulgarian competition authority demonstrate that the conditions laid down in that provision are satisfied with regard both to the conduct categorised as restrictions of trade and to the conduct categorised as refusals of access to the facilities at issue.
In that regard, the Court finds that the dispute in the main proceedings concerns the unilateral conduct of two companies belonging to the same undertaking, which were each subject to a penalty due to, essentially, their refusal to grant access to several facilities under their respective control; those facilities, together, are alleged to be, on the relevant market, essential infrastructure. Therefore, Lukoil Bulgaria and Lukoil Burgas are criticised, on the basis of Article 102 TFEU, for having engaged in one type of abusive conduct, rather than different types of conduct.
The Court recalls that it is settled case-law that EU competition law, inasmuch as it targets the activities of undertakings, enshrines as the decisive criterion the existence of unity of conduct on the market, without allowing the formal separation between various companies that results from their separate legal personalities to preclude such unity for the purposes of the application of the competition rules.
In the light of those considerations, the Court answers the referring court that, for a competition authority to be able to find that the conduct of two companies belonging to the same dominant undertaking, consisting, according to that authority, in refusing to grant access to facilities that are under their respective control and that form part of the same essential infrastructure controlled by that undertaking, and in restricting trade in that regard, constitutes an abuse of a dominant position prohibited by Article 102 TFEU, that authority is not required to establish that the conditions of that provision are satisfied with regard both to the types of conduct regarded as unjustified refusals of access to those facilities and to the types of conduct regarded as restrictions of trade, provided that the authority is able to establish that those conditions are satisfied with regard to the overall abusive conduct for which that undertaking is criticised.
In the second place, the referring court asks, in essence, whether Article 102 TFEU must be interpreted as meaning that the conditions laid down in paragraph 41 of the judgment in Bronner, (
1
) under which a refusal to grant access to infrastructure may be regarded as an abuse of a dominant position, are not applicable where that infrastructure was developed not by the dominant undertaking for the needs of its own business, but by the public authorities, and was either subject to a service concession granted by the State in favour of that undertaking or was acquired by that undertaking in the context of a privatisation.
In paragraph 41 of the judgment in Bronner, the Court, in essence, held that a refusal to grant access to infrastructure developed by a dominant undertaking for the purposes of its own business and owned by that undertaking 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 applying for 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 entity’s business, inasmuch as there is no actual or potential substitute for that infrastructure.
In that regard, the Court emphasises that it is, in particular, the need for undertakings in a dominant position to continue to have an incentive to invest in developing high-quality products or services, in the interest of consumers, which justifies applying the conditions laid down in paragraph 41 of the judgment in Bronner where an undertaking in a dominant position has developed infrastructure for the needs of its own business and, moreover, owns that infrastructure. Since the latter two criteria are cumulative, it is sufficient for one of them not to be fulfilled in order for the conditions laid down in the judgment in Bronner to be inapplicable.
As regards the criterion according to which the dominant undertaking must own the infrastructure in question, the Court specifies that the circumstance that a dominant undertaking does not have full decision-making autonomy with regard to the access to the infrastructure that it operates is sufficient to preclude it from being considered to be the owner thereof and, consequently, to preclude the application of the conditions laid down in paragraph 41 of the judgment in Bronner. In such a situation, the cumulative nature of the two criteria for applying those conditions renders the question of whether or not the infrastructure at issue was developed for the needs of the dominant undertaking’s own business irrelevant.
Contrary to what is argued by Lukoil Bulgaria and Lukoil Burgas, the same conclusion applies where infrastructure, over which the dominant undertaking does not have full decision-making autonomy, was established and developed by public authorities with public funds and then acquired by that undertaking at a competitively set price, and in which that undertaking subsequently invested, irrespective of the amount of the price paid or of the investments made.
Conversely, where the dominant undertaking enjoys such full decision-making autonomy, it cannot be deemed that the fact that the infrastructure was established or developed by the public authorities or with public funds is sufficient to preclude, in each instance, the application of the conditions laid down in paragraph 41 of the judgment in Bronner. Provided that a dominant undertaking has acquired, at a price and under conditions resulting from a competitive procedure, such infrastructure or exclusive rights which confer on that undertaking a decision-making autonomy allowing it fully to control access to that infrastructure, that infrastructure is akin to infrastructure established or developed by that undertaking. By contrast, if it is determined that the privatisation process was not suitable for guaranteeing the competitive nature of the price and conditions for acquisition, such analogous treatment should then be ruled out.
In the light of the foregoing, the Court answers the referring court that Article 102 TFEU must be interpreted as meaning that the conditions laid down in paragraph 41 of the judgment in Bronner, under which a refusal to grant access to infrastructure may be regarded as an abuse of a dominant position, are applicable to infrastructure which was developed by the public authorities before being acquired by a dominant undertaking, following privatisation, or before being used by that undertaking pursuant to exclusive rights transferred to it by those public authorities, provided that that privatisation or transfer of exclusive rights took place under conditions suitable for guaranteeing the competitive nature of the price and the other conditions for that privatisation and provided, moreover, that that undertaking enjoys full decision-making autonomy with regard to access to that infrastructure.
(
1
)	Judgment of 26 November 1998, Bronner (C‑7/97, EU:C:1998:569).