62023CC0233
OPINION OF ADVOCATE GENERAL
MEDINA
delivered on 5 September 2024 (
1
)
Case C‑233/23
Alphabet Inc.,
Google LLC,
Google Italy Srl
v
Autorità Garante della Concorrenza e del Mercato,
joined parties:
Enel X Italia Srl,
Enel X Way Srl
(Request for a preliminary ruling from the Consiglio di Stato (Council of State, Italy))
(Reference for a preliminary ruling – Competition – Article 102 TFEU – Abuse of a dominant position – Digital markets – Refusal of a dominant undertaking to grant another undertaking access to a platform or digital infrastructure – Bronner conditions – Applicability – Objective justification – Need for the dominant undertaking to develop a software template – Time and resources constraints – Conditions – Definition of the downstream or neighbouring market)
I. Introduction
1.
This request for a preliminary ruling concerns the interpretation of Article 102 TFEU.
2.
The request has been made by the Consiglio di Stato (Council of State, Italy) in proceedings between Alphabet Inc., Google LLC and Google Italy Srl, on the one hand, (
2
) and the Autorità Garante della Concorrenza e del Mercato, on the other hand. (
3
) Those proceedings have as their object the validity of the order by which the AGCM found that Google had committed an abuse of its dominant position in the market, in particular for not having made its Android Auto app compatible with another app developed by Enel X Italia Srl (
4
) for services related to the charging of electric cars.
3.
As with the majority of cases concerning Article 102 TFEU, the present case will require the Court of Justice, sitting as the Grand Chamber, to trace the fine – and frequently controversial – line between legitimate and illegitimate means of competition by dominant undertakings. For that purpose, and since this case arises in the context of the current development of digital markets, the Court will have to provide careful consideration to the need to keep those markets open while, at the same time, safeguarding the appropriate incentives to promote innovation.
4.
That is especially delicate if account is taken of the fact that, in the present case, the access request relates to a platform conceived and designed to be nourished by apps developed by third parties which are intended to provide in-car services for safe and comfortable driving. The first issue to be addressed by the Court is, therefore, whether this case falls under the traditional case-law applicable to refusals by a dominant undertaking to grant access – namely the judgment in Bronner – (
5
) which aims, according to the Court itself, to strike a fair balance between considerations relating to competition and incentives.
5.
Moreover, in this case, in order to ensure the interoperability of third parties’ apps with Android Auto, a software model known as a template needs to be developed first by Google, which, in turn, requires that its own financial and human resources be allocated to that end. The Court will thus have to adopt a view on whether access obligations, in terms of interoperability, require dominant undertakings to engage in active behaviour such as the development of necessary software. If it concludes in the affirmative, it will also have to define the limits to those obligations and the conditions applicable in a situation of that kind.
6.
Lastly, it is important to bear in mind that this case will be decided in the aftermath of the entry into force of the Digital Markets Act (DMA), (
6
) which inevitably raises the question, quite common in this legal domain, of whether interoperability would be more legitimately addressed by legislative means instead of by way of sanctions grounded on the competition law provisions of the Treaty, as Google reiteratively submits.
II. Facts and procedure
7.
Google is the author and developer of Android OS, an open-source operating system for Android mobile devices. That system can be obtained free of charge and modified by anybody, without the need for authorisation.
8.
In 2015, Google launched Android Auto, an app for mobile devices with an Android operating system. It enables users to access certain apps on their smartphone through a car’s integrated display. In order to ensure the interoperability of each app with Android Auto, avoiding for that purpose lengthy and costly individual tests, Google offers solutions for entire categories of apps in the form of templates. Those templates permit third-party developers to create versions of their own apps that are compatible with Android Auto. In late 2018, templates were available only for media and messaging apps. Google has also developed compatible versions of its own map and navigation apps – namely, Google Maps and Waze – and has allowed, in certain cases, personalised apps to be developed without there being a predefined template.
9.
Enel X provides electric car charging services. It also forms part of the Enel group, which manages more than 60% of the charging stations available in Italy. In May 2018, it launched JuicePass, an app which offers a set of features for charging electric vehicles. In particular, that app enables users to: (i) search for charging stations on a map, and book them; (ii) transfer the search to Google Maps in order to navigate to the selected charging station; and (iii) start, stop and monitor the charging session and the payment relating thereto. JuicePass is available to users with an Android smartphone and can be downloaded from Google Play.
10.
In September 2018, Enel X asked Google to make JuicePass compatible with Android Auto. However, Google refused to do so, stating that, in the absence of a specific template, media and messaging apps were the only third-party apps compatible with Android Auto. Following a second request by Enel X in December 2018, Google justified its refusal on the basis of security concerns and the need to allocate, in a rational manner, the resources necessary for the creation of a new template.
11.
On 12 February 2019, Enel X submitted a report to the AGCM, claiming that Google’s conduct constituted an infringement of Article 102 TFEU. In the meanwhile, after the AGCM initiated proceedings, Google released a template for designing beta (experimental) charging apps compatible with Android Auto. The AGCM took the view, however, that it was uncertain whether that version would be sufficient to allow the integration of all the essential functionalities of JuicePass into Android Auto.
12.
By decision of 27 April 2021, the AGCM concluded that Google’s conduct, consisting, according to that authority, in obstructing and delaying the publication of JuicePass on Android Auto, constituted an abuse of a dominant position within the meaning of Article 102 TFEU.
13.
More specifically, the AGCM considered that Android Auto is an indispensable product for developers of apps which are aimed at drivers. It allows a user experience, in terms of ease of use and road safety, that has no equivalent as a technological solution for the interoperability of mobile apps with cars’ infotainment systems. Moreover, the AGCM held that, by its conduct, Google had intended to favour its proprietary Google Maps app to the detriment of other apps that could compete with it, for instance in relation to electric charging services, as was the case with JuicePass. Lastly, the AGCM considered that Google’s conduct had produced, for more than two years, harmful effects on the market, consisting in limiting consumers’ choices, which, in the view of that authority, was not supported by any objective justification.
14.
In the light of those findings, the AGCM ordered Google to release a definitive version of the template for developing electric charging apps and to incorporate any essential functionalities identified by Enel X for rendering JuicePass fully compatible with Android Auto. It also imposed on Google a penalty of EUR 102 084 433.91.
15.
Google challenged the AGCM’s order, first, before the Tribunale amministrativo regionale del Lazio (Regional Administrative Court, Lazio, Italy), which dismissed the action in its entirety. It then appealed to the Consiglio di Stato (Council of State), which is the referring court in the present case.
16.
Before the Consiglio di Stato (Council of State), Google argues that the AGCM did not carry out a proper examination of the conditions for assessing whether a refusal to grant access is abusive, as they result from the EU Court’s case-law. It refers, in particular, to the judgment inMicrosoft, (
7
) rendered by the General Court. Google also criticises the AGCM for not having identified, in the contested decision, the relevant downstream market and its dominant position in it. For their part, the AGCM and Enel X refute those arguments and rely fundamentally on the reasoning of the decision at issue in the main proceedings.
17.
In order to give a ruling in the main proceedings, the Consiglio di Stato (Council of State) considers it necessary to receive guidance on the interpretation of Article 102 TFEU, and mainly on the Bronner conditions, which are applicable to refusals to grant access to a dominant undertaking’s infrastructure. According to those conditions, a refusal of that kind will be considered abusive behaviour if: (i) the access request concerns a product or service indispensable to the exercise of an economic activity on a neighbouring market; (ii) the refusal is likely to eliminate all competition in that market; and (iii) the refusal is not capable of being objectively justified. In essence, the Consiglio di Stato (Council of State) is uncertain whether the specific features of the functioning of digital markets justify departing from those conditions in a case such as that in the main proceedings or, at least, interpreting them in a flexible manner. It also harbour doubts as to the manner in which competition authorities should define the relevant markets in such a case.
18.
In those circumstances, the Consiglio di Stato (Council of State) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1)
Must the requirement that the product that is the subject of a refusal to supply be indispensable be interpreted, for the purposes of Article 102 TFEU, as meaning that access must be indispensable to the exercise of a particular activity in a neighbouring market, or is it sufficient that access be indispensable for a more convenient use of the product or service offered by the undertaking requesting access, especially where the essential function of the product that is the subject of the refusal to supply is to make it easier and more convenient to use existing products or services?
(2)
Is it possible, in the context of conduct constituting a refusal to supply, to consider behaviour to be abusive, within the meaning of Article 102 TFEU, in a situation where, notwithstanding the lack of access to the requested product, (i) the undertaking requesting access was already active in the market and had continued to grow within that market throughout the period of the alleged abuse and (ii) other operators competing with the undertaking requesting access to the product had continued to operate in the market?
(3)
Must Article 102 TFEU, in the context of abuse consisting in a refusal to grant access to an allegedly indispensable product or service, be interpreted as meaning that the fact that the product or service did not exist at the time of the request to supply must be taken into consideration as an objective justification for that refusal, or, at least, is a competition authority required to conduct an analysis, based on objective elements, of the time needed for a dominant undertaking to develop the product or service in respect of which access has been requested, or must the dominant undertaking, given the responsibility it has within the market, be required to inform the undertaking requesting access of the time required to develop the product?
(4)
Must Article 102 TFEU be interpreted as meaning that a dominant undertaking that has control over a digital platform may be required to modify its own products, or to develop new ones, so that those who so request may access such products? In that case, is a dominant undertaking required to consider the general requirements of the market or the requirements of a single undertaking requesting access to the allegedly indispensable input, or, at least, given the special responsibility it has within the market, to lay down in advance objective criteria for reviewing the requests that it receives and for ranking them in order of priority?
(5)
Must Article 102 TFEU, in the context of abuse consisting in a refusal to grant access to an allegedly indispensable product or service, be interpreted as meaning that a competition authority is required to define and identify in advance the relevant downstream market to which the abuse applies, and can this market also be only potential?’
19.
The request for a preliminary ruling was lodged at the Registry of the Court of Justice on 13 April 2023. The Italian Government, the Greek Government, the European Commission and the parties to the main proceedings submitted written observations. A hearing was held on 23 April 2024, in which the EFTA (European Free Trade Association) Surveillance Authority also participated.
III. Assessment
20.
By its questions, the Consiglio di Stato (Council of State) seeks clarification on the interpretation of Article 102 TFEU, and in particular on the case-law of the Court of Justice applicable to cases where a dominant undertaking refuses to grant access to an infrastructure of its own in favour of another undertaking that operates in a neighbouring market. The Consiglio di Stato (Council of State) poses those questions as regards the specific features that, according to that court, characterise the functioning of digital markets.
21.
More specifically, the Consiglio di Stato (Council of State) asks, first, whether, in view of the function of Android Auto, as well as the current evolution of the digital markets, the condition regarding the indispensability of the infrastructure to which access is requested should be deemed to be satisfied when that access is not strictly essential for the neighbouring market, but still renders the use of products or services in that market more convenient in terms of road safety and comfortable use.
22.
Secondly, the Consiglio di Stato (Council of State) asks whether a refusal by a dominant undertaking to grant access can be deemed abusive under the Bronner conditions where the requesting undertaking, as well as other operators, continue to be active and grow in the neighbouring market despite the lack of access.
23.
Thirdly, the Consiglio di Stato (Council of State) poses the question, in essence, of whether the absence of a necessary element for allowing the requested access – for instance, the non-existence of a software template – constitutes an objective justification for a refusal on the part of the dominant undertaking. Alternatively, that court asks whether a competition authority is required to analyse, on the basis of objective criteria, the time needed to develop that element or whether it is for the dominant undertaking, considering its special responsibility on the market, to inform the requesting entity of that time.
24.
Fourthly, the Consiglio di Stato (Council of State) queries whether Article 102 TFEU mandates a dominant undertaking with control over a digital platform to adjust its own product when it receives access requests in order to grant that access. In that regard, that court questions whether the dominant undertaking, considering its market position, should prioritise general market demands or those of a requesting entity and whether that undertaking should establish predefined objective criteria for evaluating and prioritising access requests.
25.
Fifthly, the Consiglio di Stato (Council of State) seeks to ascertain whether, in the context of abusive behaviour consisting in refusing access to an allegedly indispensable product, Article 102 TFEU must be interpreted as meaning that a competition authority is required to concretely define in advance the relevant downstream market to which the abusive behaviour applies.
26.
In the following points of the present Opinion, I will examine, first and foremost, whether the conditions laid down by the Court in the judgment in Bronner should be deemed to be applicable to a case such as that concerned in the main proceedings. Even if that issue does not fall under the specific object of any of the questions referred, it is the main doubt expressed by the referring court in the order for reference. It is also the fundamental premiss on which the first two questions referred rely, which is the reason why the parties have held a profound debate in that regard before the Court. In the light of that examination, I will then address the questions posed by the referring court, analysing the first and second questions together, on the one hand, and the third and fourth questions together, on the other hand. The fifth question will be assessed on its own.
A.
Applicability of the Bronner conditions. The first and second questions
27.
Article 102 TFEU prohibits any abuse by one or more undertakings of a dominant position within the internal market or in a substantial part of it, and declares such abuse to be incompatible with the internal market in so far as trade between Member States may be affected. (
8
) That may encompass, under certain circumstances, cases where a dominant undertaking refuses to deal with another firm or, more specifically, where the dominant undertaking refuses to grant access to a product, service or infrastructure of its own in favour of another undertaking that operates in a neighbouring market. (
9
)
28.
As has already been stated, cases concerning the refusal by a dominant undertaking to deal with another firm or grant access are traditionally examined in the light of the judicial doctrine laid down by the Court in the judgment in Bronner. (
10
) According to that judgment, three conditions must be fulfilled in order to establish abusive behaviour under Article 102 TFEU. Those conditions require, first, that the requested access concern a product or service which is indispensable to the exercise of an economic activity on a neighbouring market; secondly, the refusal by the dominant undertaking must be likely to eliminate all competition in that market; and, thirdly, the refusal must not be capable of being objectively justified. (
11
)
29.
The rationale behind the characterisation of a refusal to grant access as abusive behaviour was first addressed by Advocate General Jacobs, precisely in his Opinion in Bronner. (
12
) After more than two decades following its publication, his legal analysis is still cited by the authoritative legal writing on the matter, in particular to illustrate that the imposition under Article 102 TFEU of access obligations on dominant undertakings should remain strictly limited. (
13
)
30.
In that Opinion, Advocate General Jacobs declared that the right to choose one’s trading partners and freely to dispose of one’s property are generally recognised principles in the laws of the Member States, in some cases with constitutional status. Therefore, incursions on those rights require careful justification. (
14
) Moreover, in his view, it is generally pro-competitive and in the interest of consumers in the long term to allow a dominant undertaking to retain for its own the fruits of its substantial investments. Otherwise, that undertaking would lack enough incentives to continue to develop efficient products or services. (
15
) By contrast, Advocate General Jacobs also pointed out that refusal of access may, in some cases, entail elimination or substantial reduction of competition to the detriment of consumers in both the short and the long term. (
16
)
31.
I observe that the Court’s case-law has expressly embraced the reasoning set out by Advocate General Jacobs, lastly in the judgment rendered in the Slovak Telecom case, where it has declared that forcing a dominant undertaking to grant access is particularly detrimental to the freedom of contract and the right to property of that undertaking. For that reason, dominant undertakings must remain in principle free to refuse to grant access to a product, service or infrastructure that they have developed for their own needs. (
17
) After all, those dominant undertakings would be less inclined to invest in efficient products or facilities if they could be bound, merely at the request of their competitors, to share with them the benefits deriving from their own investments. (
18
)
32.
It results from the above that the assessment, under Article 102 TFEU, of a case concerning the refusal by a dominant undertaking to grant access ultimately relies on a delicate balance between, on the one hand, the interest of competitors and consumers in the proper development of the neighbouring market and fertile competition therein and, on the other hand, the respect of the freedom of contract and the right to property of the dominant undertaking as a way of promoting sufficient incentives for carrying out its activities in an efficient manner. (
19
) According to the Court, the judgment in Bronner intends to strike that delicate balance by imposing the three conditions already referred to above. (
20
)
33.
However, an examination of the Court’s recent case-law, in cases where it has been called upon to interpret the conditions established in the judgment in Bronner, demonstrates that the scope of application of those conditions is rather limited. As Advocate General Kokott explained in her recent Opinion in Google Shopping, (
21
) those conditions are exceptional in nature and are generally not suitable for establishing the presence of abuse in every case concerning issues of access. (
22
)
34.
Indeed, it is important to note that the Court has made clear that the imposition of the conditions in the judgment in Bronner was justified by the specific circumstances of that case, which consisted in a refusal by a dominant undertaking to grant a competitor access to the infrastructure that it had developed for the needs of its own business. That has been particularly emphasised by the Court not only in the Slovak Telekom case, (
23
) cited above, but also in the fairly recent judgment rendered in Baltic Rail. (
24
) It stems from the latter, without ambiguity, that the Bronner conditions apply only to cases where the infrastructure at issue has been developed for the needs of the dominant undertaking’s own business and where that infrastructure is dedicated for its own use, to the exclusion of any other competitor. (
25
)
35.
It follows that, according to the Court’s case-law, in order to determine whether the Bronner conditions apply to a case concerning a refusal to grant access, it is necessary to discern whether the infrastructure to which access is requested is to be consecrated to the dominant undertaking’s own business and use and to be enjoyed exclusively by it, as a way of preserving the benefits of the investments made for the development of that infrastructure. By contrast, those conditions are not intended to apply where the infrastructure concerned is opened to other operators on the market, which, according to the Court, can result from the application of regulatory obligations, as was the case in the judgment in Slovak Telekom. (
26
) Arguably, that must a fortiori be the case in respect of an infrastructure which is deliberately developed to be used by third-party operators.
36.
In that regard, it is apparent from the description given by the referring court in the order for reference that the present case concerns a request addressed to Google by a third party which wanted an app it developed to be compatible with Android Auto. In addition, according to that description, Android Auto is a ‘smartphone projection’ tool which enables users of mobile devices with an Android operating system to access certain apps on their smartphone through a car’s integrated display. From that perspective, it fulfils the function of a platform, a characterisation that, it is true, must be assessed by the referring court when deciding the merits of the main proceedings, but that, judging from the wording of the questions referred, appears to be the case in the eyes of that court. (
27
)
37.
Moreover, it is important to note that Android Auto, like many other platforms or digital infrastructures, creates value by ensuring that its users have access to a wide variety of interoperable and complementary products and services. (
28
) It is actually conceived not only to allow but to encourage third-party developers to create versions of their own apps that are compatible with it. (
29
) In that regard, the referring court explains, evoking the decision of the AGCM, that Android Auto is intended to be at the heart of an ‘ecosystem’, (
30
) which, in computing, alludes to an operating model in which data and services are shared by a digital platform’s owner with external developers in service to a community of users. (
31
)
38.
It follows that, as the Italian Government and the Commission observe, the platform to which access is requested in the present case, as described by the referring court, cannot be considered to have been developed for the needs of a dominant undertaking’s own business, within the meaning of the case-law cited in point 34 above, nor to have been reserved for its exclusive use. On the contrary, Android Auto is deliberately open and has been conceived to be shared freely and to remain at the disposal of third parties, in line with Google’s purpose to attract as many ‘in-car apps’ as possible so that car drivers benefit from as much assistance as possible while focusing on their driving. (
32
)
39.
That means, as a primary consequence, that the balance of interests and incentives which applies to a factual scenario such as that in the judgment in Bronner does not correlate with the main features of the present case. In other words, it is not by forcing the granting of access to an app developed by a third party that the developer and owner of the platform might be discouraged from carrying out its activities or making further investments. As I will explain below, that risk of discouragement can only arise as a consequence of an improper balancing of the objective justification put forward by that undertaking to explain the refusal to grant that access, which I think becomes the actual focus of the analysis to be conducted in a case such as that concerned in the main proceedings.
40.
To my mind, therefore, the test applied in the judgment in Bronner, articulated through the conditions laid down therein, does not deserve to be applied in the present case, which is the view which appears to be shared by the referring court and which is also put forward by the Italian and Greek Governments and the Commission.
41.
Contrary to that approach, Google invokes the judgment rendered by the General Court in Microsoft. As is widely known, that case concerned the application of what was formerly Article 82 EC (now Article 102 TFEU) to refusals to disclose technological standards covered by intellectual property rights. (
33
) In its judgment, the General Court essentially upheld the analysis carried out by the Commission in the contested decision, which found that Microsoft had reduced the interoperability of competitors’ products with its dominant Windows operating system. In doing so, the General Court elaborated on the conditions previously defined by the case-law of the Court of Justice for the purpose of finding abusive behaviour in cases concerning the refusal to grant access. (
34
)
42.
However, the judgment in Microsoft concerned a case in relation to the compulsory licensing of intellectual property rights, which, similarly to physical property, presents tensions which are relatively equivalent, in terms of interests and incentives, to those described in relation to the judgment in Bronner. (
35
) Therefore, even assuming that the case giving rise to the judgment in Microsoft could be seen, from a general perspective, as an illustration concerning a refusal to grant access to a digital infrastructure, the fact remains that the operating system at issue in that case did not have as its main aim to be freely available to other software developers, which is the main difference with respect to a platform such as that at issue here.
43.
That is why, in addition to the circumstance that the Court of Justice did not have the opportunity to take a view on the approach adopted by the General Court in the Microsoft case, due to the absence of an appeal, I do not think that it should rely on that judgment as a valid precedent for the purpose of assessing the present case.
44.
Of course, it could be argued that the absence of a specific template ensuring the interoperability of Android Auto with electric car charging apps, as is the case here, demonstrates Google’s wish to reserve those services for itself. However, that argument is simply not persuasive in the light of Android Auto’s features, as described in points 36 and 37 above. Moreover, I would simply note that Google does not appear to have raised such an argument either before the referring court, judging from the terms of the order for reference, or before the Court of Justice. The reasons submitted by Google in relation to its refusal to grant access actually refer to the difficulties, in terms of security and time and resources constraints, of developing a software template which would ensure the interoperability between Android Auto and the third-party developer’s app.
45.
In view of the foregoing, I suggest that the Court consider that, in so far as a dominant undertaking puts at the disposal of third-party operators a platform which is conceived and designed to be nourished by apps developed by those operators, there is no need to examine, for the purpose of establishing abusive behaviour under Article 102 TFEU, whether the doctrine elaborated by the Court in the judgment in Bronner is satisfied. That is in particular the case of the conditions related, on the one hand, to the indispensability of the requested access for the neighbouring market and, on the other hand, to the elimination of all the competition in that market.
46.
Instead, the examination should be focused, for that same purpose, on whether the dominant undertaking which owns that platform excludes, obstructs or delays the requested access of an app developed by a third-party, provided that that behaviour gives rise to anticompetitive effects to the detriment of consumers and cannot be objectively justified. (
36
) As the Greek Government and the Commission note, those anticompetitive effects can consist, for instance, in delaying the introduction into the neighbouring market of a product or service which is at least potentially in competition with a product or service capable of being provided by the dominant undertaking, thus limiting incentives to innovation and technological development and consumers’ choices.
47.
As for the present case, since the first two questions referred within the present request for a preliminary ruling seek guidance on the interpretation of the first two Bronner conditions, none of them, in my view, requires an answer by the Court in the terms in which they are framed. After all, when assessing the merits of the main proceedings, it would not be necessary for the referring court to address: (i) whether the condition regarding the indispensability of the access requested can be deemed to be satisfied when that access renders the use of products or services in a neighbouring market more convenient in terms of road safety and comfortable use; nor (ii) whether, in essence, a refusal by a dominant undertaking to grant access can be deemed to be abusive under Article 102 TFEU where the competition is not eliminated in the neighbouring market.
48.
By contrast, as regards the first question referred, I invite the Court to declare, for the reasons already explained in the preceding points of this Opinion, that the judicial doctrine laid down in the judgment in Bronner is not relevant for the purposes of a case such as that in the main proceedings. The assessment by the referring court should be focused on the terms set out in point 46 above, which would essentially lead to a determination of whether Google’s refusal to grant access to Android Auto constituted an obstruction or access delay in respect of a product or service in competition, at least from a potential perspective, with other services provided by Google through that platform – in particular, services related to the charging of electric vehicles – provided that that behaviour could cause harmful effects on consumers and unless it could be justified on objective grounds.
49.
As regards the second question referred, I propose that the Court should approach it from a different angle. Indeed, an answer could still be provided as to whether a refusal to grant access is capable of giving rise to anticompetitive effects where the same premiss applies – namely that the requesting undertaking and other operators have remained active in the neighbouring market and have developed their market position despite not enjoying the access requested. (
37
)
50.
That question can actually be answered in the light of current case‑law, primarily the judgment in Servizio Elettrico Nazionale. (
38
)
51.
It results from that judgment and the settled case-law cited therein that the purpose of Article 102 TFEU is to prevent conduct of a dominant undertaking that has the effect of hindering, through recourse to means not based on the merits, the maintenance of the degree of competition already existing in the market or the growth of that competition. (
39
)
52.
Moreover, the characterisation of a practice of a dominant undertaking as abusive does not mean that it is necessary to demonstrate that the result of a practice of such an undertaking, intended to drive its competitors from the market concerned, has been achieved and, accordingly, to prove an actual exclusionary effect on the market. The purpose of Article 102 TFEU is to penalise abuse, by one or more undertakings, of a dominant position within the internal market or in a substantial part of it, irrespective of whether such a practice has proved successful. (
40
)
53.
Consequently, contrary to Google’s assumption, the circumstance that the same degree of competition is maintained in a given market, despite the abusive behaviour by a dominant undertaking, or even the growth of competition in that market, does not necessarily mean that that behaviour is not capable of giving rise to anticompetitive effects. First, the illegal character of conduct by a dominant undertaking cannot ultimately depend on the ability of other operators in the market to mitigate the harmful effects of that conduct. Second, it suffices to point out that, in the absence of abusive behaviour, competition could have grown even more and, for instance, that market shares of other operators could also have increased more than they had done.
54.
Furthermore, the argument submitted by an undertaking in a dominant position, attesting to the lack of actual exclusionary effects, cannot be regarded as sufficient to exclude the application of Article 102 TFEU. Even though that fact may constitute evidence that the conduct in question was not capable of producing the alleged effects, it must be supplemented by other evidence intended to show that that absence of actual effects was indeed the consequence of the fact that that conduct was unable to produce such effects. (
41
)
55.
It follows from the previous considerations that, even if, despite the refusal to grant access to Android Auto, other operators continued to operate or even grow in the neighbouring market, that circumstance does not in itself mean that that refusal was not capable of producing anticompetitive effects. The referring court must assess whether the behaviour of the dominant undertaking was capable of hindering the maintenance or development of competition, taking into account all the relevant circumstances of the case and irrespective of whether those restrictive effects actually occurred. (
42
)
56.
In the light of the foregoing, I conclude, as regards the first question referred, that Article 102 TFEU must be interpreted as meaning that the conditions laid down in the judgment in Bronner do not apply where the platform to which access is requested has not been developed by the dominant undertaking for its exclusive use, but has been conceived and designed with the aim of being nourished by apps of third-party developers. In such a situation, it is not necessary to demonstrate the indispensability of that platform for the neighbouring market. By contrast, an undertaking abuses its dominant position if it engages in conduct consisting in excluding, obstructing or delaying access by the app developed by a third-party operator to the platform, provided that that conduct is capable of producing anticompetitive effects to the detriment of consumers and is not objectively justified. Those anticompetitive effects can consist in delaying the introduction into the neighbouring market of a product or service which is at least potentially in competition with a product or service capable of being provided by the dominant undertaking.
57.
As regards the second question referred, Article 102 TFEU should be interpreted as meaning that the circumstance that the requesting undertaking and other operators have remained active in the neighbouring market and have developed their market position despite not enjoying the access requested to a digital platform does not in itself mean that the refusal by the dominant undertaking to grant access was not capable of producing anticompetitive effects and that it cannot therefore be regarded as abusive. The referring court must assess whether the behaviour of the dominant undertaking was capable of hindering the maintenance or development of competition, taking into account all the relevant circumstances of the case and irrespective of whether those restrictive effects actually occurred.
B.
The third and fourth questions
58.
Having set out the position that the Court should, in my view, adopt as regards the first and second questions referred, I will now examine the third and fourth questions together. They essentially refer to the objective justification that a dominant undertaking may put forward when refusing access to a platform developed by it, resulting in behaviour such as that described in point 46 of the present Opinion. Both questions also relate to the burden of proof that that dominant undertaking or the relevant competition authorities must bear in that case.
59.
From the outset, it is important to note that the third and fourth questions are grounded on Google’s claims that, in order to provide the requested access to Android Auto, it was first necessary to develop a template for applications related to services for the charging of electric vehicles. That template did not exist at the time of the access request and, according to Google, it was indispensable in order for Android Auto to be used securely. Google also submits that that template could not be implemented within the deadlines initially requested, due, inter alia, to the need to allocate appropriate resources and the occurrence of the COVID‑19 pandemic.
60.
Even if Article 102 TFEU has no equivalent to Article 101(3) TFEU, which tempers the prohibition set out in that Treaty in relation to anticompetitive agreements, (
43
) the case-law of the Court provides dominant undertakings with the possibility of demonstrating an objective justification for their conduct, even if that conduct constitutes, prima facie, abuse. (
44
)
61.
That means that dominant undertakings that are accused of abusive behaviour may invoke an objective justification for their conduct. (
45
) If successful, the prohibition laid down in Article 102 TFEU does not apply. A dominant undertaking may do so by demonstrating, inter alia, that its conduct is objectively necessary, (
46
) a requirement that is also coupled with the condition that the conduct in question must be proportionate. (
47
)
62.
In the first place, the referring court asks the Court of Justice whether the non-existence of a template at the time of the access request must be taken into account as an objective justification for an access refusal or, alternatively, whether the dominant undertaking in question may be required to develop that template in order to facilitate access to its digital platform. In essence, that question requires a determination of the scope of the obligations to be satisfied by a dominant undertaking when facing a request for access to its platform by a third-party developer.
63.
As I have indicated in the introduction of the present Opinion, (
48
) one of the most delicate issues to be decided by the Court in the present case is whether, in terms of interoperability, access obligations require dominant undertakings to engage in active behaviour such as the development of necessary software, namely a template. Should the Court consider that they do, then the dominant undertaking concerned would not only have to consent to access to its platform in order to fulfil its duties under Article 102 TFEU, but it would also have to devote its own time and resources to ensuring that access.
64.
In that respect, it is important to recall that, according to settled case-law, any exception to a given rule of EU law must be subject to a restrictive interpretation, (
49
) an understanding that applies mutatis mutandis when considering an objective justification within the realm of Article 102 TFEU. (
50
) Within the context of a refusal to grant access to a platform such as that concerned in the main proceedings, and provided that that refusal gives rise to anticompetitive effects, as discussed in the first part of the present Opinion, only circumstances that compromise the functioning and purpose of that platform may be accepted.
65.
In the present case, that implies, first and foremost, that, where the development of the template by the dominant undertaking concerned is technically impossible, the absence of such a template could become an objective justification in itself. That would also be the case, as the Commission points out, where the granting of access through that template could affect, from a technical perspective, the performance of the platform or where access could run counter to its economic model or purpose. By contrast, if the development of such a template is not impossible and the performance of the platform is not affected or the access does not run counter to its economic model or purpose, the strict and direct refusal by that dominant undertaking, on the ground of the non-existence of a template, would constitute abuse under Article 102 TFEU.
66.
Moreover, it should be considered that the mere difficulty to carry out the development of a template, as Google essentially submits, does not justify a plain refusal to grant access either. As indicated in point 61 above, a necessity and proportionality assessment would have to be carried out in that case, taking into account, for that purpose, all the circumstances or external factors surrounding the refusal. It is within the scope of that assessment and, in particular, when pondering the proportionality of the refusal, that the (difficult) context faced by a dominant undertaking with regard to developing that template must be measured.
67.
I observe that it is common ground among the parties that the development of a software template is genuinely necessary for ensuring the interoperability of an app developed by a third party with a platform such as Android Auto. In actual fact, the order for reference establishes that the development of those templates, intended to cover entire categories of apps, is required in order to avoid the lengthy and costly tests which would otherwise be required for guaranteeing the compatibility of each individual app with Android Auto. Moreover, that is a task that can only be performed by Google, as the owner of that platform. (
51
) Therefore, subject to the concrete assessment of the referring court, that means that, in a case such as that in the main proceedings, the necessity test within the examination of the objective justification appears to be easily satisfied, inasmuch as there is no doubt that the development of a template cannot be avoided in order to guarantee secure access of an app like that of Enel X to Android Auto.
68.
By contrast, in my view, the proportionality of the refusal deserves further elaboration. It is at this stage that the justification put forward by a dominant undertaking, in terms of time and resources constraints for the development of a software template, is relevant in order to ensure that markets are kept open while appropriate incentives for the dominant undertaking are safeguarded.
69.
As regards the time constraints, the referring court is unsure whether it is for the competition authority to carry out an investigation, on the basis of objective factors, into the time needed by an undertaking in a dominant position to develop the software template to ensure access to the requested platform or whether, on the contrary, the undertaking in a dominant position, having regard to its responsibility on the market, is required to inform the applicant of the time necessary to develop that template.
70.
In that regard, it should be recalled that, according to the case-law of the Court of Justice, although the burden of proof of the existence of the circumstances that constitute an infringement of Article 102 TFEU is borne by the competition authorities, either at EU or national level, it is for the dominant undertaking concerned to raise any plea of objective justification and to support it with arguments and evidence. (
52
) The Court has further established that the dominant undertaking concerned, which bears the initial burden of proof, must adduce concrete evidence and cannot merely put forward vague, general or theoretical arguments. (
53
)
71.
Logically, the factors relied upon by the dominant undertaking as the basis for contending that its conduct was objectively justified must be the ones that the firm took into account at the time of that conduct. (
54
) As a consequence, an examination of the concrete terms of the refusal emerges as an important element in determining whether the justification put forward by the dominant undertaking did in fact form the basis for its conduct. That requirement being satisfied, it then falls to the competition authority, where it proposes to make a finding of an abuse of a dominant position, to demonstrate that the arguments and evidence relied on by the undertaking cannot prevail and, accordingly, that the justification put forward cannot be accepted. (
55
)
72.
As for the present case, it is important to note that, when pleading time constraints before a competition authority as an objective justification, the first evidentiary step corresponds to the dominant undertaking, which cannot simply rely on those constraints to justify its refusal to grant access. On the contrary, as the referring court suggests in its question, that undertaking must demonstrate that it informed the operator requesting access of the time necessary to develop that template. That development can be as lengthy as is objectively required and not necessarily immediate. Furthermore, a difficult situation such as the COVID-19 pandemic, which Google invokes, may be a factor to take into consideration. As a next step, if the relevant competition authority demonstrates that the assessment made by the dominant undertaking is not adequate as regards the time frame invoked for the development of the template, the objective justification will not constitute a defence for the behaviour under scrutiny. (
56
) Lastly, it goes without saying that all those elements can subsequently form the subject of verification by the relevant court.
73.
A similar approach can be adopted as regards the resources that a dominant undertaking might need to allocate for the development of the template, so as to ensure the interoperability of a third-party app with a platform. In reality, a discussion about constraints of human and financial resources for the development of a template, as Google claims, is a discussion about the costs involved in that development and about who must bear those costs.
74.
At the outset, I would point out that the circumstance that a dominant undertaking must be subject to an obligation to ensure access to a platform and to develop a template for that purpose, as already explained in the present Opinion, does not mean that that undertaking must necessarily assume the costs of that development. That is essential for guaranteeing, above all, that the application of Article 102 TFEU and the interoperability obligations that stem from it do not cause any disincentive in respect of the dominant undertaking as the initial developer and owner of the platform concerned.
75.
The previous consideration means that a dominant undertaking must be able to rely on resources constraints as an objective justification for not developing a template for a third-party app. Yet, for that justification to be accepted, it is important to ensure, following the case-law cited in points 70 and 71 above, that the undertaking which requests access is offered the possibility of paying an appropriate remuneration, essentially after the costs of the development of the necessary template have been evaluated. The mere invocation of resources constraints by a dominant undertaking, without making that possibility available, would not, in my view, fulfil the requirements making it possible to recognise an objective justification. (
57
) Were the requesting undertaking to consider the cost to be inappropriate or disproportionate, then the relevant competition authority, if it intends to conclude that there is an abuse of a dominant position, would have to show that the arguments and evidence put forward by the dominant undertaking for calculating that cost are not convincing and, consequently, that the justification put forward cannot be accepted.
76.
It follows from the foregoing considerations that, in order to determine whether the objective justification put forward by a dominant undertaking in terms of time and resources constraints can be accepted, that justification needs to be subject to scrutiny in terms of necessity and proportionality, in line with the considerations shared in the previous points of this Opinion.
77.
The question remains whether the circumstance that multiple access requests are received simultaneously by a dominant undertaking may further constitute an objective justification under Article 102 TFEU. That also forms part of the doubts expressed by the referring court, which is uncertain whether, in that context, the dominant undertaking must establish, on the basis of its special responsibility in the market, objective criteria in advance for examining the applications submitted to it and ranking them in order of priority.
78.
I would like to point out that the reference to the special responsibility incumbent on dominant undertakings, as established by the Court’s repeated case-law, (
58
) should not be confused within the analysis of the plea put forward by that undertaking to justify a refusal to grant access to a platform developed by it. Indeed, the Court might consider, as has already been argued in this Opinion, that that responsibility justifies an access obligation, provided that the conditions indicated in point 46 above apply. However, as Google argues, in the absence of a regulatory obligation in that regard, it cannot by itself constitute a basis to establish an obligation to envisage and define, from an ex ante perspective, the objective criteria for examining concurrent requests for access.
79.
That is especially relevant in a case such as that in the main proceedings, where, in my view, the acceptance of the justification put forward by the dominant undertaking cannot depend on the existence or not of a preliminary definition of objective criteria. Certainly, in the context of several requests made simultaneously, the absence of those criteria might constitute an element to take into consideration in order to assess the abusiveness of the conduct alleged against the dominant undertaking when it leads to a situation of excessive delay in terms of granting access or to discriminatory treatment among the concurrent applicants. However, it does not follow from the order for reference that that is the case here, which means that that absence cannot in itself form the basis for the establishment of the abusive behaviour concerned.
80.
In the light of the foregoing analysis, I conclude, in relation to the third question referred, that Article 102 TFEU must be interpreted as meaning that conduct by a dominant undertaking consisting in refusing access of a third-party operator to a platform such as that concerned in the main proceedings may be objectively justified where the access requested is technically impossible or where it could affect, from a technical perspective, the performance of the platform or run counter to its economic model or purpose. The mere fact that, in order to grant access to that platform, the dominant undertaking must, in addition to giving its consent, develop a software template taking into account the specific needs of the operator requesting access cannot in itself justify a refusal of access, provided that an appropriate time frame is allowed for that development and that that development is subject to appropriate consideration in favour of the dominant undertaking. Both elements must be communicated by the dominant undertaking to the operator requesting access upon its request.
81.
In relation to the fourth question referred, Article 102 TFEU must be interpreted as meaning that it cannot by itself constitute the basis for an obligation to define, from an ex ante perspective, objective criteria for examining requests for access to a platform. Only in the context of several requests made simultaneously might the absence of those criteria constitute an element to take into consideration in order to assess the abusiveness of the conduct alleged against the dominant undertaking when it leads to a situation of excessive delay in terms of granting access or to discriminatory treatment among the concurrent applicants.
C.
The fifth question
82.
By its fifth question, the referring court essentially asks whether, in the context of abuse consisting in refusing access to a digital platform, Article 102 TFEU must be interpreted as meaning that a competition authority is required to define the relevant downstream market affected by the abuse and whether that market may even only be potential.
83.
As is widely known, within the context of the application of Article 102 TFEU, a finding of dominance necessarily requires the prior definition of the relevant product or geographic market in which that position is held by the undertaking in question. In the case of conduct consisting in refusing access to an infrastructure, that normally concerns the upstream market in which the infrastructure is located. That category of case also requires the identification of the neighbouring (downstream) market in which the undertaking requesting access intends to operate and in which the anticompetitive effects of the conduct of the dominant undertaking are liable to occur. (
59
)
84.
That being said, as regards the neighbouring market, the Court’s case-law declares that it is sufficient that a potential market or even a hypothetical market can be identified. (
60
) Indeed, it may be necessary only to identify two different stages of production and their actual interconnection. (
61
)
85.
Therefore, as the Italian Government and the Commission correctly observe, there is no obligation to define, in a comprehensive manner, the relevant downstream market when assessing whether the conduct of the dominant undertaking was capable of restricting competition, in particular in the case of conduct consisting in refusing access. It is true that, in those cases, the ability to restrict competition must, in principle, be assessed in relation to the market in which the anticompetitive effects might take place, namely the downstream or neighbouring market in relation to the upstream market to which access is refused by the dominant undertaking. However, in my view, that does not necessarily require a definition of the relevant product market and geographic market within the meaning of the Commission Notice on the definition of the relevant market (
62
) and to define its scope, as Google essentially submits. It is sufficient for the competition authority to demonstrate that the conduct in question is capable of producing anticompetitive effects with regard to products or services which are in competition with each other, even if it is only potential competition.
86.
This seems all the more true where the market in question is still under development or is subject to rapid development and, consequently, its scope is not fully defined at the time when the allegedly abusive conduct occurs. In those cases, the definition of the relevant market could prove very difficult and give rise to speculative considerations. It therefore seems sufficient that the competition authority carefully examines the characteristics and scope of the relevant market and takes due account of them in its analysis of the potential effects of the conduct in question.
87.
As regards the present case, I should point out that, in accordance with the description given in the order for reference, Google’s conduct appears to concern an evolving market. On the understanding that it is for the referring court to assess this question, I would note that, in its decision, the AGCM first examined the sector of applications of electrical charging services. It then defined the ‘competitive space for electrical refill services provided through applications’ in which, in its view, electrical refill services and navigation applications are in competition with each other, and provided a number of elements indicating a competitive situation between the two categories of applications, which are at least potential in nature. Those considerations were then taken into account in the subsequent analysis of the capability of Google’s conduct to produce the anticompetitive effects at issue.
88.
In relation to the fifth question referred, I therefore conclude that Article 102 TFEU must be interpreted as meaning that, where a dominant undertaking refuses access to a platform such as that concerned in the main proceedings, a competition authority is not required to define exhaustively, under the Notice on the definition of the relevant market, the market on which refusal of access is likely to have anticompetitive effects. It is sufficient for the competition authority to demonstrate that the conduct in question was capable of producing anticompetitive effects with regard to products or services which are in competition between them.
IV. Conclusion
89.
In the light of the foregoing considerations, I propose that the Court answer the questions referred by the Consiglio di Stato (Council of State, Italy) as follows:
(1)
As regards the first question referred, Article 102 TFEU
must be interpreted as meaning that the conditions laid down in the judgment of 26 November 1998, Bronner (C‑7/97, EU:C:1998:569) do not apply where the platform to which access is requested has not been developed by the dominant undertaking for its exclusive use, but has been conceived and designed with the aim of being nourished by apps of third-party developers. In such a situation, it is not necessary to demonstrate the indispensability of that platform for the neighbouring market. By contrast, an undertaking abuses its dominant position if it engages in conduct consisting in excluding, obstructing or delaying access by the app developed by a third-party operator to that platform, provided that that conduct is capable of producing anticompetitive effects to the detriment of consumers and is not objectively justified.
(2)
As regards the second question referred, Article 102 TFEU
must be interpreted as meaning that the circumstance that the requesting undertaking and other operators have remained active in the neighbouring market and have developed their market position despite not enjoying the access requested to a digital platform does not in itself mean that the refusal by the dominant undertaking to grant access was not capable of producing anticompetitive effects and that it cannot therefore be regarded as abusive. The referring court must assess whether the behaviour of the dominant undertaking was capable of hindering the maintenance or development of competition, taking into account all the relevant circumstances of the case and irrespective of whether those restrictive effects actually occurred.
(3)
As regards the third question referred, Article 102 TFEU
must be interpreted as meaning that conduct by a dominant undertaking consisting in refusing access of a third-party operator to a platform such as that concerned in the main proceedings may be objectively justified where the access requested is technically impossible or where it could affect, from a technical perspective, the performance of the platform or run counter to its economic model or purpose. The mere fact that, in order to grant access to that platform, the dominant undertaking must, in addition to giving its consent, develop a software template taking into account the specific needs of the operator requesting access cannot in itself justify a refusal of access, provided that an appropriate time frame is allowed for that development and that that development is subject to appropriate consideration in favour of the dominant undertaking. Both elements must be communicated by the dominant undertaking to the operator requesting access upon its request.
(4)
As regards the fourth question referred, Article 102 TFEU
must be interpreted as meaning that it cannot by itself constitute the basis for an obligation to define, from an ex ante perspective, objective criteria for examining requests for access to a platform. Only in the context of several requests made simultaneously might the absence of those criteria constitute an element to take into consideration in order to assess the abusiveness of the conduct alleged against the dominant undertaking when it leads to a situation of excessive delay in terms of granting access or to discriminatory treatment among the concurrent applicants.
(5)
As regards the fifth question referred, Article 102 TFEU
must be interpreted as meaning that, where a dominant undertaking refuses access to a platform such as that concerned in the main proceedings, a competition authority is not required to define exhaustively, under the Commission Notice on the definition of the relevant market for the purposes of Union competition law (C/2024/1645), the market on which refusal of access is likely to have anticompetitive effects. It is sufficient for the competition authority to demonstrate that the conduct in question was capable of producing anticompetitive effects with regard to products or services which are in competition between them.
(
1
)	Original language: English.
(
2
)	Google Italy Srl is the Italian subsidiary of Google LLC, which in turn is owned by Alphabet Inc. For the sake of simplicity, I will refer to those three undertakings, which are the applicants in the main proceedings, together as ‘Google’.
(
3
)	Italian Competition and Market Authority (‘the AGCM’).
(
4
)	‘Enel X’.
(
5
)	Judgment of 26 November 1998, Bronner (C‑7/97, EU:C:1998:569) (‘the judgment in Bronner’ or ‘the Bronner conditions’).
(
6
)	Regulation (EU) 2022/1925 of the European Parliament and of the Council of 14 September 2022 on contestable and fair markets in the digital sector and amending Directives (EU) 2019/1937 and (EU) 2020/1828 (Digital Markets Act) (OJ 2022 L 265, p. 1).
(
7
)	See, inter alia, judgment of 17 September 2007, Microsoft v Commission (T‑201/04, EU:T:2007:289) (‘the judgment in Microsoft’).
(
8
)	Judgment of 25 March 2021, Slovak Telekom v Commission (C‑165/19 P, EU:C:2021:239, paragraph 40) (‘the judgment in Slovak Telekom’).
(
9
)	For a comprehensive explanation of the legal and economic grounds of a refusal to deal, see O’Donoghue, R. KC and Padilla, J., The Law and Economics of Article 102 TFEU, Bloomsbury, 2020, p. 509 et seq.
(
10
)	The judgment in Bronner, paragraph 41. See also judgment of 29 April 2004, IMS Health (C‑418/01, EU:C:2004:257); judgment of 17 February 2011, TeliaSonera Sverige (C‑52/09, EU:C:2011:83); judgment of 10 July 2014, Telefónica and Telefónica de España v Commission (C‑295/12 P, EU:C:2014:2062); the judgment in Slovak Telekom; judgment of 25 March 2021, Deutsche Telekom v Commission (C‑152/19 P, EU:C:2021:238); judgment of 12 May 2022, Servizio Elettrico Nazionale and Others (C‑377/20, EU:C:2022:379); and judgment of 12 January 2023, Lietuvos geležinkeliai v Commission (C‑42/21 P, EU:C:2023:12; ‘the judgment in Baltic Rail’).
(
11
)	The first and second conditions cited are sometimes presented in reverse order.
(
12
)	Opinion of Advocate General Jacobs in Bronner (C‑7/97, EU:C:1998:264).
(
13
)	See inter alia Whish, R. and Bailey, D., Competition Law, 10th Ed., Oxford University Press, 2021, pp. 772 and 773.
(
14
)	Opinion of Advocate General Jacobs in Bronner (C‑7/97, EU:C:1998:264, point 56).
(
15
)	Ibid. (points 57 and 62).
(
16
)	Ibid. (point 61).
(
17
)	The judgment in Slovak Telekom (paragraph 46).
(
18
)	Ibid. (paragraph 47).
(
19
)	See, to that effect, the judgment in Baltic Rail (paragraph 86). See also judgment of 10 November 2021, Google and Alphabet v Commission(Google Shopping) (T‑612/17, EU:T:2021:763, paragraph 217).
(
20
)	Ibid.
(
21
)	See Opinion of Advocate General Kokott in Google and Alphabet v Commission (C‑48/22 P, EU:C:2024:14). At the time of writing, the judgment in that case has not yet been delivered.
(
22
)	Ibid. (point 83 et seq.).
(
23
)	The judgment in Slovak Telecom, paragraph 45.
(
24
)	The judgment in Baltic Rail, paragraph 80.
(
25
)	Ibid. (paragraphs 80 and 82).
(
26
)	For a critical analysis of this approach, see inter alia O’Donoghue, R. KC and Padilla, J., op. cit., pp. 585, and Muscat, A., ‘Testing for abusive refusals to supply in EU competition law: Past, present and future’, European Competition Law Review, 42(5), 2021, pp. 256 to 268.
(
27
)	See, in particular, the fourth question referred, which uses the term ‘a dominant undertaking [with] control over a digital platform’. See also the definition of ‘Android Auto’ provided by Google at https://source.android.com/docs/automotive/start/what_automotive, which characterises it as a ‘platform’.
(
28
)	Shier, G. and Byrne T., ‘Economic principles’, in Wiggers, M., Struijlaart, R. and Dibbits, J. (eds), Digital Competition Law in Europe, Kluwer Law International, 2023, p. 17.
(
29
)	See, in that regard, the Android Auto quality guidelines, which app developers building for that product must follow; available at https://transparency.google/our-policies/product-terms/android-auto/.
(
30
)	See also ‘Building an ecosystem’, available at https://developer.android.com/cars.
(
31
)	See Mens, T., De Roover, C. and Cleve, A. (eds), Software Ecosystems: Tooling and Analytics, Springer, 2023, p. 6.
(
32
)	See Google’s aim to enhance user experience and assist developers in reaching more drivers with in-car apps through Android Auto, available at https://android-developers.googleblog.com/2020/08/android-for-cars.html#:~:text=We%20launched%20Android%20Auto%20for_cars%20in%20the%20coming%20months.
(
33
)	See Andreangeli, A., ‘Case note on T‑201/04, Microsoft v Commission, Judgment of 17 September 2007’, Common Market Law Review, Vol. 45, No 3, 2008, p. 863, and O’Donoghue, R. KC and Padilla, J., op. cit., pp. 534 and 535.
(
34
)	The judgment in Microsoft, paragraphs 647 and 648.
(
35
)	See points 30 and 31 of the present Opinion.
(
36
)	See, in that regard, Opinion of Advocate General Kokott in Google and Alphabet v Commission (C‑48/22 P, EU:C:2024:14, point 89).
(
37
)	One of the main arguments put forward by Google before the referring court, as described in the order for reference, is that Android Auto and an application such as JuicePass do not present a competitive relationship, which means that the refusal to grant access cannot, in any event, lead to the finding of anticompetitive exclusionary effects. However, the second question referred does not relate to that issue, but rather to whether the existence of anticompetitive effects can be excluded where the circumstances described in that question occur. Therefore, in my view, Google’s arguments do not need to be addressed by the Court but instead decided on their merits by the referring court.
(
38
)	Judgment of 12 May 2022, Servizio Elettrico Nazionale and Others (C‑377/20, EU:C:2022:379).
(
39
)	Ibid. (paragraph 44).
(
40
)	Ibid. (paragraph 53 and the case-law cited) and judgment of 19 January 2023, Unilever Italia Mkt. Operations (C‑680/20, EU:C:2023:33, paragraph 41).
(
41
)	Ibid. (paragraphs 56 and 72 and the case-law cited).
(
42
)	See, to that effect, judgment of 17 February 2011, TeliaSonera Sverige (C‑52/09, EU:C:2011:83, paragraph 64).
(
43
)	See Opinion of Advocate General Jacobs in Syfait and Others (C‑53/03, EU:C:2004:673, points 71 and 72).
(
44
)	Judgment of 27 March 2012, Post Danmark (C‑209/10, EU:C:2012:172, paragraph 40 and the case-law cited). See also Communication from the Commission – Guidance on the Commission’s enforcement priorities in applying Article [102 TFEU] to abusive exclusionary conduct by dominant undertakings (OJ 2009 C 45, p. 7, ‘the Commission’s Guidance’, paragraphs 28 to 31).
(
45
)	See, for a critical analysis, Castillo de la Torre, F. and Gippini‑Fournier, E., Evidence, Proof and Judicial Review in EU Competition Law, Edward Elgar Publishing, 2024, pp. 243 to 247.
(
46
)	See judgment of 27 March 2012, Post Danmark (C‑209/10, EU:C:2012:172, paragraph 41). Following that judgment, an objective justification may also be that the dominant undertaking’s conduct produces substantial gains in efficiency which outweigh any anticompetitive effects on consumers. However, in view of the referring court’s description of the case in the main proceedings, that kind of justification is not relevant here.
(
47
)	See Whish, R. and Bailey, D., op. cit., p. 220, and van der Vijver, T., ‘Article 102 TFEU: How to claim the application of objective justifications in the case of prima facie dominance abuses?’Journal of European Competition Law & Practice, Vol. 4, Issue 2, Oxford University Press, 2013, pp. 121 to 133. See also the Commission’s Guidance, paragraph 28.
(
48
)	See point 5 of the present Opinion.
(
49
)	See, to that effect, judgments of 5 September 2019, Regards Photographiques (C‑145/18, EU:C:2019:668, paragraph 43), and of 9 November 2017, AZ (C‑499/16, EU:C:2017:846, paragraph 24).
(
50
)	Scholars observe that the decisional practice of the Commission and the case-law of the Court of Justice have taken a strict approach to objective justifications. See O’Donoghue, R. KC and Padilla, J., op. cit., p. 658.
(
51
)	See, to that effect, judgment of 6 October 1994, Tetra Pak v Commission (T‑83/91, EU:T:1994:246, paragraph 138), upheld on appeal by the judgment of 14 November 1996, Tetra Pak v Commission (C‑333/94 P, EU:C:1996:436, paragraph 37).
(
52
)	See, to that effect, judgment of 27 March 2012, Post Danmark (C‑209/10, EU:C:2012:172, paragraph 42). See also the judgment in Microsoft (paragraph 688).
(
53
)	See, to that effect, judgment of 30 January 2020, Generics (UK) and Others (C‑307/18, EU:C:2020:52, paragraph 166). See also the judgment in Microsoft (paragraph 698) and judgment of 14 September 2022, Google and Alphabet v Commission (Google Android) (T‑604/18, EU:T:2022:541, paragraph 616).
(
54
)	See, in that regard, Whish, R. and Bailey, D., op. cit., p. 223.
(
55
)	The judgment in Microsoft (paragraph 688).
(
56
)	See, in that regard, judgment of 9 September 2009, Clearstream v Commission (T‑301/04, EU:T:2009:317, paragraph 106), where the General Court considered that the mere fact that significant changes in computer systems, detailed preparations and numerous series of tests were necessary for the dominant undertaking to allow access did not in itself justify a delay of two years in the provision of access.
(
57
)	Even though the doubts expressed by the referring court do not specifically concern the manner in which the cost of developing a template should be calculated, it is important to keep in mind that costs must be strictly related to the reasons justifying the need for a template and to the time needed for that purpose. Other factors, such as the development of a template following a personalised request, instead of a template covering a general category of apps, might also influence the remuneration to be paid by the requesting undertaking. Lastly, it would be important to take into account the benefit that the dominant undertaking might obtain from introducing the new template and, therefore, the new compatible apps into its platform.
(
58
)	See, inter alia, judgment of 6 September 2017, Intel v Commission (C‑413/14 P, EU:C:2017:632, paragraph 135 and the case-law cited).
(
59
)	The Microsoft judgment (paragraph 335).
(
60
)	Judgment of 29 April 2004, IMS Health (C‑418/01, EU:C:2004:257, paragraph 44).
(
61
)	See, to that effect, judgment of 29 April 2004, IMS Health (C‑418/01, EU:C:2004:257, paragraph 45).
(
62
)	See, at present, Commission Notice on the definition of the relevant market for the purposes of Union competition law (C/2024/1645) (‘the Commission Notice on the definition of the relevant market’).