On 25 February 2025, the Court of Justice of the European Union ("Court") answered preliminary questions in the case between Alphabet et al (Alphabet inc., Google LLC and Google Italy Srl, hereinafter “Alphabet”) and ENEL. The central question in this procedure was whether Alphabet had to make the Android Auto infotainment system interoperable with ENEL's app. In short, the Court held that Alphabet should have granted access in this case. The judgment has major implications for companies operating public platforms.

Background

Alphabet has developed an operating system for mobile devices called Androis OS. This system is made available under an open source licence and can be modified by users. Android Auto is Alphabet's infotainment system that can be used in the car. When used in the car, a dashboard is visible that corresponds to the apps a user has on their phone. This allows setting a route, playing music, communicating with contacts, etc. in a user-friendly way. Alphabet has developed a template for third parties to use. This will ensure interoperability between apps from other developers. Android Auto at least has a template for: media and messaging apps and navigation applications.

ENEL is an Italian utility company, and owns 60% of all available electric car charging points in Italy. In 2018, ENEL launched the JuicePass app. The app allows electric car users to, among other things, search for charging stations on a map, transfer the search to Google Maps, and arrange for payment after a charging session. The JuicePass app is interoperable with Android OS, but not Android Auto. ENEL requested Alphabet in September 2018 to make the JuicePass app interoperable with Android Auto. Alphabet refused ENEL's request.

The Italian Competition Authority ("AGCM") has launched an investigation into the behaviour of Alphabet following a complaint by ENEL. In 2021, the AGCM fined Alphabet €102 million, for hindering and delaying the availability of the JuicePass app on Android Auto. This conduct is classified as abuse of dominant position (Article 102 TFEU). The AGCM orders Alphabet to make Android Auto interoperable for electric car charging apps.

Alphabet appealed the decision to the Italian administrative court. Alphabet's appeal against the AGCM's decision was rejected by the administrative judge in Italy. In response, Alphabet appealed. The appellate court referred the case to the Court and asked five preliminary questions. The first preliminary question is particularly relevant for legal practice, but the remaining questions will also be briefly addressed in the following.

Judgment of the court

Question 1: Bronner doctrine applicable to semi-public digital platform?

The Court first recalls the purpose for which the Bronner legal doctrine was developed by the Court. The Bronner criteria deal with the situation where a dominant undertaking refuses to grant an undertaking access to a given infrastructure. Such conduct leads to an abuse of a dominant position only if the following cumulative conditions are met:

1. To compete with the dominant firm on the downstream market, the input is indispensable for the firm requesting access;
2. Access refusal eliminates all effective competition in a market;
3. The behaviour cannot be objectively justified.

The Bronner criteria are to be interpreted strictly, as enforcing an agreement between parties comes at the expense of freedom of contract, property rights, and the competitor's incentive to continue developing and innovating. However, the Court finds that these concerns are not significant where the dominant undertaking has developed the infrastructure not only for itself but also for third parties. If costs are not borne solely for its own infrastructure development, then granting access to third parties will not fundamentally change the economic model.

In this case, several circumstances show that Alphabet did not develop the infrastructure exclusively for themselves; after all, there are already templates of media and messaging apps and navigation applications. A digital platform intended to enable the use of apps, developed in particular by third parties and uploaded onto users' mobile phones, on the infotainment system of cars cannot be considered to have been created solely for the needs of that dominant undertaking. Thus, the Bronner doctrine does not apply, and in all likelihood Alphabet should have granted access to ENEL. However, the final verdict on this will be given by the Italian appeal court.

Question 2: Is the conduct of Alphabet compatible with competition based on merit?

The second preliminary question concerns the situation where an application - such as the JuicePass app - can operate successfully even without access to the platform in question. The question is whether in that case there could still be anti-competitive effects leading to an abuse of a dominant position.

The Court stresses that the mere fact that total exclusion of competitiors has not occurred, does not rule out an infringement of Article 102 TFEU. The decisive factor is whether the refused access has the effect of distorting competition in a way that harms competition based on merit - with innovation, price and quality being the determining factors. However, those anti-competitive effects must be sufficiently concrete. Mere hypothetical or theoretical harm is not sufficient to establish abuse. There must therefore be a demonstrable restriction of competitive pressure, causally linked to the refused access.

Questions 3 & 4: Can the behaviour of Alphabet be justified?

The Court notes that there may well be objective grounds for legitimately refusing interoperability with a template. Valid justifications could be the technical difficulty and the protection of the integrity and security of the platform in question. The court adds that in the case where the cost is too high to develop a template, a reasonable cost compensation may be requested by the platform owner. If the platform does not respond to the request to ensure interoperability, that may be an indication that the refusal is not objectively justified. Alphabet thus has an obligation to make the JuicePass app interoperable with Android Auto, provided no legitimate justifications exist. Alphabet would be allowed to seek relief from ENEL in this case if the development costs of the template are high.

Question 5: Should the referring court also have defined the downstream market?

Finally, the Court notes that the downstream market does not have to be fully delineated, as long as the competition authority can demonstrate that the dominant undertaking's conduct is capable of producing anti-competitive effects in that potential market.

Conclusion and implications for practice

We consider the following key take-aways of particular importance:

1. Impact of digital platforms: The judgment is of great importance for dominant companies operating open digital platforms, as these are by definition designed for use by third parties. The judgment highlights the risks faced by so-called digital gatekeepers when requests from customers to enable interoperability. Such companies can be expected to take steps to ensure interoperability with apps or other third-party business users within a reasonable timeframe, unless they can cite weighty technical or security grounds.
2. Nuancing Bronner criteria? The Bronner criteria remain fully applicable in situations where a dominant company has developed an infrastructure exclusively for its own use. However, if a company in a dominant position does choose to grant access to certain companies - this can also be done, for example, through a licence - then that company should take into account that the Bronner doctrine no longer applies. In that case, a lower threshold of proof may apply for assuming abuse of dominance.