On 25 February 2025, the Court of Justice of the European Union (CJEU) ruled that Google’s refusal to make Android Auto interoperable with a third-party EV charging station app may constitute an abuse of dominance. The ruling is significant in underscoring the limited role of the essential facilities doctrine in digital markets, by confirming that operators of digital platforms may act abusively by refusing access to their platforms even where such access is not indispensable to compete in another market.

Background

Android Auto is a platform developed by Google that enables drivers to use apps on their Android phones via their car’s infotainment system display. Google has already made available “templates” for messaging and media apps that allow developers of such apps to create versions of their apps that interoperate with Android Auto, without a need for lengthy testing procedures. Google has also developed a version of its navigation apps (i.e. Google Maps and Waze) that is compatible with Android Auto.

Enel is the largest operator of EV charging stations in Italy. In 2018 it launched a smartphone app called “JuicePass”, which allows users to search for, locate and book charging stations. Enel requested that Google take the necessary steps to make the app interoperable with Android Auto. Google refused, on the basis that so far, only third-party media and messaging apps were interoperable with Android Auto, citing the absence of a specific template for EV charging apps. Google also raised concerns about the security and resource implications of creating a new template.

Enel complained about Google’s conduct to the Italian Competition Authority (the AGCM) in 2019. Despite Google having subsequently published a template for the design of experimental EV charging apps, the AGCM concluded that in obstructing and delaying the introduction of JuicePass on Android Auto, Google had abused its dominant position in breach of Article 102 of the Treaty on the Functioning of the European Union (TFEU). 

Google challenged the AGCM’s decision before the Regional Administrative Court of Lazio, arguing that its conduct must be assessed under the so-called “essential facilities” doctrine and therefore was not abusive since access to Android is not indispensable to compete in the market. Google’s challenge was dismissed in its entirety and Google appealed to the Council of State, which referred the case to the CJEU for a preliminary ruling on Article 102 TFEU and the application of the essential facilities doctrine to digital platforms.

The essential facilities doctrine under Article 102 TFEU

The “essential facilities” doctrine was developed by the CJEU in cases where a dominant firm was refusing to share its own assets with its competitors. The CJEU confirmed that an obligation to share such assets could exist in circumstances where the use of an asset is indispensable to compete in a relevant market. However, since forcing dominant companies to share their own assets with competitors not only encroaches on fundamental property rights and freedom of contract but also risks stifling the incentive to invest and innovate, the CJEU also held that such circumstances must remain exceptional. 

The exceptional nature of these circumstances was confirmed in Bronner, a landmark case involving a refusal by a newspaper proprietor to grant a competing publisher access to its nationwide home-delivery service, in which the CJEU held that a duty to share assets with competitors only arises where the following stringent conditions are met (the so-called Bronner criteria): 

1. the asset cannot be replicated on an economically viable basis; 
2. there are no actual or potential substitutes for the asset in question; 
3. refusing access is likely to eliminate all effective competition in the relevant market; and 
4. there is no legitimate objective justification for refusing access¹.

The conditions which must be satisfied to force a dominant firm to share its assets with competitors are even more stringent where IP rights are involved – where the need to safeguard investment incentives is particularly acute. This was confirmed In IMS Health, where the CJEU held that it was not sufficient to show that a licence of IP rights is indispensable to compete in a relevant market, as a dominant firm cannot be compelled to licence its IP to a competitor that merely intends to duplicate the firm’s product. An additional factor is needed – namely the refusal to license must also prevent the emergence of a new product to the detriment of consumers².

The above cases involved dominant firms refusing to share assets built for their own use, which had not previously been shared with third parties who were competing or seeking to compete in the market for which access to the assets was sought. The question was left open whether the essential facilities doctrine was limited to this type of scenario, or whether it was also relevant in other cases involving access disputes or commercial dealings between a dominant firm and its actual or potential competitors. This question – which has important implications, given the difficulty of establishing antitrust liability under the essential facility doctrine – has been at the forefront of several more recent CJEU judgments:

• Slovak Telekom and Deutsche Telekom, where the CJEU clarified that the essential facilities doctrine – particularly the indispensability requirement – does not apply to a constructive refusal to supply, where rather than outright refusing access, a dominant firm imposes unfair conditions that make access economically unviable. The essential facilities doctrine has therefore no role to play in margin squeeze cases or in tying cases, where access to an asset is subject to an obligation to buy or use an unrelated product or service. The same applies to cases where an undertaking is under a regulatory obligation to provide access to its infrastructure. 
• Lithuanian Railways, in which the CJEU dismissed the attempt by a dominant rail operator to shield behind the essential facilities doctrine to avoid liability for having dismantled a section of railway track in order to frustrate the development of cross-border competition in rail freight services. The CJEU found that such conduct was not a refusal to supply but constituted a distinct form of abuse, whose illegality did not depend on the Bronner criteria being met. The CJEU also held that the Bronner criteria only applied to infrastructure owned by a dominant firm which it has developed for its own needs, through its own investment. They do not apply to infrastructure financed through public funds. 
• Google Shopping, in which the CJEU held that the essential facilities doctrine and the indispensability requirement do not apply to conduct that amounts to “self-preferencing”, where some degree of access to the dominant firm’s infrastructure is granted but is subject to discriminatory conditions. In this case, the infrastructure in question was the results page displayed by Google’s general search engine, on which Google’s own Shopping search results were featured more prominently than links to rival specialist search engines which received far less visibility. 

The preliminary ruling in Android Auto

The scope of the essential facilities doctrine and the type of access disputes to which it applies were also at the heart of Android Auto, in which the CJEU was asked the following questions:

1. Does the requirement for a product to be “indispensable” mean that access must be essential to carry out an activity in a neighbouring market, or is it sufficient that access makes the requesting party’s product more attractive to consumers?
2. Can a refusal to provide access be considered abusive where the undertaking requesting access (or its competitors) continues to grow in the market despite the refusal?
3. Is the fact that the requested product or service did not exist at the time of the access request an objective justification for refusing to grant access? If not, must a competition authority take into account the time needed to develop the product/service, and must the dominant undertaking inform the requesting party of the relevant timescales?
4. Can a dominant firm be required to modify its own products, or develop new ones, to grant third parties access to its platforms? If so, must the dominant firm consider customers’ requirements when doing so, and must it lay down objective criteria for reviewing and prioritising customers’ requests?
5. Must a competition authority define and identify the neighbouring market in advance when assessing a refusal to grant access, and can this can be a potential, rather than actual, market?

The CJEU’s ruling 

Analysis

Android Auto confirms that antitrust liability will only rarely be determined by reference to the essential facilities doctrine, and that the CJEU will not allow the doctrine to be used as a shield by large digital platforms to resist antitrust enforcement against any type of conduct capable of being portrayed as an access restriction. The essential facilities doctrine and the Bronner criteria will only be relevant where an asset or infrastructure is owned and was developed for the needs of the dominant firm’s own business. 

Arguably, Android Auto goes one step further than the CJEU’s previous case law, by requiring a firm to establish that its infrastructure was intended to be used solely by its own business in order to be able to rely on the Bronner criteria to defend a refusal to provide access. The judgments in Slovak Telekom, Deutsche Telekom and Lithuanian Railways referred in this regard only to the infrastructure having been developed for the firm’s own needs. Similarly, the Commission in last year’s draft Article 102 Guidelines stated that the Bronner test applies where “a dominant undertaking has developed an input exclusively or mainly for its own use” (emphasis added). 

According to the draft Guidelines, cases where the Bronner criteria do not apply constitute “access restrictions” (rather than refusals to supply), in respect of which the conditions for the application of Article 102 TFEU are less stringent – requiring only an assessment of whether the conduct departs from competition on the merits and is capable of restricting competition. Android Auto would seem to support the Commission’s position, with the CJEU treating Google’s conduct as an access restriction and making clear that there is therefore no need to establish that access to the platform was indispensable to compete on the market, or that the refusal to provide access led to the elimination of all (effective) competition on that market.

This has significant implications for companies that operate digital platforms, since such platforms tend to be open by design to third party app developers, to make them as attractive as possible to consumers. As a result of Android Auto, those who operate those platforms cannot invoke the Bronner criteria to refuse to provide access or to reserve certain types of functionalities to themselves. There is also no requirement that a platform operator must be present on the neighbouring market to which the access request relates – a duty to grant access by ensuring inter-operability can be triggered merely because the app in question is at least potentially in competition with a product or service which is capable of being provided by the platform operator. And the threshold for being able to argue that access should be provided (that it makes an app more “attractive”) also appears very low. 

Moreover, Android Auto indicates that app developers are able to insist on the development of new interoperability solutions and that a platform must accommodate such demands even if that requires bringing on board additional human resources unless the requested development is technically impossible or compromises the integrity or security of the platform. This seems to leave platform operators with very limited room to refuse to develop new interoperability tools. 

Some digital platforms – having been designated as “gatekeepers” – will of course already be subject to fair and open access requirements under the Digital Markets Act (DMA). But there are likely to be other platforms (now and in the future) that, whilst falling outside the scope of the DMA, enjoy significant market power. The principles stemming from this ruling could, therefore, allow the Commission (and EU national competition authorities) to fill the gaps resulting from the DMA applying only to set categories of “core platform services”, by regulating the activities of other potential gatekeepers in other digital spheres.

¹ These conditions were not satisfied in Bronner because alternative means of distribution were available (such as newspaper kiosks). The fact that these were less advantageous was regarded as irrelevant.  It was also not impossible to establish a nationwide home-delivery scheme for newspapers with a similar circulation -- the fact that this could not be done for newspapers with a smaller circulation was likewise deemed irrelevant by the CJEU.

² In Microsoft, the General Court held that this additional factor could also be present where the refusal to licence prevented important technical product developments for which there was customer demand.