Case C-233/23, Alphabet and Others: Judgment of the Court (Grand Chamber) of 25 February 2025 (request for a preliminary ruling from the Consiglio di Stato – Italy) – Alphabet Inc. and Others v Autorità Garante della Concorrenza e del Mercato (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)
Date: 2025-02-25
Institutions: Court of Justice
Subjects: EU competition policy, competition, competition law, dominant position, free competition, market access, refusal to sell








C_202502046EN.000101.fmx.xml












Official Journal of the European Union


EN
C series













C/2025/2046


14.4.2025






Judgment of the Court (Grand Chamber) of 25 February 2025 (request for a preliminary ruling from the Consiglio di Stato – Italy) – Alphabet Inc. and Others v Autorità Garante della Concorrenza e del Mercato


(Case C-233/23,
                (1)
Alphabet and Others)

(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)
(C/2025/2046)
Language of the case: Italian

Referring court

Consiglio di Stato

Parties to the main proceedings


Applicants: Alphabet Inc., Google LLC, Google Italy Srl

Defendant: Autorità Garante della Concorrenza e del Mercato

Interested parties: Enel X Italia Srl, Enel X Way Srl

Operative part of the judgment







1.


Article 102 TFEU must be interpreted as meaning that the refusal, by an undertaking in a dominant position which has developed a digital platform, to ensure, at the request of a third-party undertaking, that that platform is interoperable with an app developed by that third-party undertaking is capable of constituting an abuse of a dominant position even though that platform is not indispensable for the commercial operation of that app on a downstream market, but is such as to make that app more attractive to consumers, where that platform has not been developed by the undertaking in a dominant position solely for the needs of its own business.










2.


Article 102 TFEU must be interpreted as meaning that the fact that both the undertaking which developed an app and requested an undertaking in a dominant position to ensure that the digital platform owned by such dominant undertaking is interoperable with its app, and competitors of the first undertaking continued to be active on the market to which that app belongs and grew their position on that market, even though they did not benefit from such interoperability, does not in itself indicate that the refusal by the undertaking in a dominant position to act on that request was incapable of having anticompetitive effects. It is necessary to assess whether that conduct on the part of the undertaking in a dominant position was such as to hinder competition on the market concerned being maintained or to hinder its growth, taking into account all the relevant factual circumstances.










3.


Article 102 TFEU must be interpreted as meaning that, where conduct consisting, on the part of an undertaking in a dominant position, in refusing to ensure that an app developed by a third-party undertaking is interoperable with a digital platform owned by the undertaking in a dominant position is capable of being classified as abuse, within the meaning of that provision, the undertaking in a dominant position may usefully rely, as objective justification for its refusal, on there being no template making it possible to ensure that interoperability on the date on which the third-party undertaking requested such access, where to grant such interoperability by means of such a template would, in itself and in the light of the properties of the app for which interoperability is sought, compromise the integrity or security of the platform concerned, or where it would be impossible for other technical reasons to ensure that interoperability by developing such a template. If that is not the case, the undertaking in a dominant position is required to develop such a template, within a period which is reasonable and necessary for that purpose and in return for, depending on the circumstances, appropriate financial consideration, taking into account the needs of the third-party undertaking which requested that development, the actual cost of the development and the right of the undertaking in a dominant position to derive an appropriate benefit from it.










4.


Article 102 TFEU must be interpreted as meaning that, in order to assess whether there is an abuse consisting of a refusal, by an undertaking in a dominant position, to ensure that an app developed by a third-party undertaking is interoperable with a digital platform owned by the undertaking in a dominant position, a competition authority may confine itself to identifying the downstream market on which that refusal is capable of having anticompetitive effects, even if that downstream market is merely a potential market, since such identification does not necessarily require a precise definition of the product and geographic market in question.






(1)  
            OJ C 216, 19.6.2023.


ELI: http://data.europa.eu/eli/C/2025/2046/oj
ISSN 1977-091X (electronic edition)