On 25 February 2025, the Court of Justice of the European Union (CJEU) issued an important preliminary ruling in the case between Alphabet (Google) and the Italian competition authority (AGCM). The AGCM accused Google of refusing Enel X's request to make its Android Auto platform interoperable (connectable) with an app developed by Enel X. Does this refusal indeed constitute an abuse of a dominant economic position, as the AGCM had argued, and if so, what are the broader consequences?
Background to the case
Google developed the Android Auto platform that allows users to use apps on their Android devices via their car's infotainment system. Enel X operates a network of charging stations. It developed the JuicePass app to find and use these charging stations. Enel X wanted to obtain interoperability with Android Auto for this app. Google refused the request, citing security issues and the fact that it would require the development of a new interoperability template for Juice-Pass.
The legal framework of the ‘essential facilities doctrine’
Based on Article 102 TFEU, companies with a dominant economic position (‘dominant companies’) can be obliged to grant access to infrastructure they own and have developed because it constitutes an ‘essential facility’ for the activities of another company in another (downstream) market. In the case between Google and the AGCM, Android Auto would be the essential facility for operating in the app market.
This doctrine is based on a cautious approach. Enforced access by (potential) competitors is harmful to contractual freedom and constitutes an infringement of the (intellectual) property rights of the dominant company. Furthermore, the prospect of ‘free riders’ can remove the incentive for a dominant company to invest in the development of (platform) infrastructure at all. It is precisely for these reasons that the ECJ formulated three cumulative conditions in the Bronner ruling before a refusal of access can be considered an abuse.
- the refusal is likely to eliminate all competition in the market of the company requesting access;
- the refusal cannot be objectively justified;
- access is indispensable for the entity's activities (there are no actual or potential substitutes).
Key findings of the CJEU in Android Auto
In the judgment of 25 February 2025, the CJEU assumes that Google is a dominant company in the market in which Android Auto operates. In its judgement, the CJEU explains the circumstances under which a refusal by a dominant company to facilitate interoperability can constitute an abuse. It is noteworthy that in its judgement, the CJEU definitively renounces the application of the essential facilities doctrine to digital platforms.
1. Obligation for Google to realise interoperability: The CJEU has established that Android Auto was not developed exclusively for Google's own use, but also as a platform for third parties. As a result, a refusal to realise interoperability with a (Juice) app cannot be justified by the investments in the platform. This invalidates the comparison with Bronner. That judgement related to infrastructure that had been developed exclusively for the owner.
2. Indispensability of access: The Juice app can of course also be used without Android Auto with only the telephone, but according to the CJEU this is not relevant for the assessment because the Bronner criteria do not apply. Google's refusal may therefore constitute an abuse of a dominant economic position, even if the Android Auto platform is not essential for the commercial exploitation of the (Juice) app. It is sufficient that the app becomes more commercially attractive if it gains access to the Android Auto platform. The fact that the Juice app (and competing apps) were developed without the prospect of interoperability with Android Auto does not change this.
3. Objective justification: Google had argued that the prohibition of abuse does not oblige it to take action to make the Android Auto platform compatible/interoperable with Enel's Juice app. It also argued that the obligation to achieve interoperability with all kinds of apps would be at the expense of the security of Android Auto. According to the CJEU, these arguments do not hold water. The CJEU also sets the bar high for an objective justification for the refusal. Refusal is only justified if the realisation of interoperability would in itself jeopardise the integrity of Android Auto or the safety of its use, or if it would be impossible to ensure that interoperability by developing it for other technical reasons. The platform can therefore be obliged to develop an interoperability template within a reasonable period of time. A reasonable (FRAND) fee may be charged to the app developer for this. FRAND stands for Fair, Reasonable and Non-Discriminatory.
4. Market definition Finally, the Court ruled that it is not necessary to define the relevant market in which the Juice app operates before Google can be found to have committed an abuse of dominance.
Consequences for the market
The judgement could have far-reaching consequences for dominant companies in digital markets. They may not only be obliged to contract with parties that want to offer their services via their platform, but even to make technical adjustments to their platform to enable such contracting, or at least interoperability. Such an obligation only seems to apply if the platform has a revenue model that allows third parties to use it.
Initially, the ruling deserves attention in connection with the possible consequences for large American tech companies. The consequences are not limited to this. It is not impossible that (digital) companies in a certain niche have developed a platform that has acquired a dominant position.
This ruling fits in well with European ambitions regarding the introduction and modernisation of European regulations to strengthen the European Digital Market. One of the achievements of this is the Data Act, which includes all kinds of guarantees and requirements regarding the interoperability of systems to make it easier to access data, exchange data and transfer data (data portability).
- If you would like to know more about the Data Act, please read the following blog: What exactly does the Data Act entail?
- If you would like to know more about the new European laws in the field of AI, data and cyber, read the following blog: AI, data and cyber: European laws to keep an eye on.
Consequences for the Netherlands
The Netherlands Authority for Consumers and Markets (ACM) has recently investigated possible abuse of a dominant position in the Dutch markets for software for healthcare ICT. One of the accusations levelled at suppliers of software for electronic patient records (EPRs) was that the interoperability of EPRs with other software is poor. ACM concluded its investigation because it would not have had the tools to address any market failures. Would it have continued its investigation if this judgement had been handed down earlier? Who knows?
But in any case, regulator ACM has taken a strong stand and published a recommendation in which it urges the Ministry of Health, Welfare and Sport to oblige IT suppliers in healthcare to structurally and securely open up their digital information systems for links with other suppliers and healthcare providers. The aim of this is to stimulate innovation and to reduce the vendor lock-in experienced in that market through interoperability requirements. See: Advice to the Ministry of Health, Welfare and Sport: mandatory openness of healthcare information systems to promote innovation | ACM.nl. This advice is also well in line with the chosen European path.
