Navigating access refusals after the ECJ’s Google Android Auto-ruling
Big Tech faces significant challenges when denying third parties access to their open platforms. The European Court of Justice (ECJ) has ruled that a dominant company’s refusal to make its open platform compatible with a third-party app can constitute an abuse of a dominant position if granting interoperability would make the third-party app more attractive to consumers.
Background
In 2021, the Italian Competition Authority imposed a fine of EUR 102 million on Google for abuse of a dominant position: Google had refused to make Enel’s navigation app for EV-charging stations (JuicePass) interoperable with its Android Auto digital platform. After the Regional Administrative Court dismissed Google’s action against the fine, Google lodged an appeal before the Council of State. The Council of State requested a preliminary ruling from the ECJ on the matter.
The ECJ’s ruling
The ECJ refers to earlier case law to emphasise the high bar that competition authorities must meet under the ‘refusal to supply’ test to force dominant companies into a duty to deal.
Under this test, a dominant company may be forced to grant rivals access to its infrastructure if the following strict conditions are met:
- the refusal to grant access will likely eliminate all competition on the part of the company requesting access;
- there is no objective justification for the refusal; and
- the infrastructure is indispensable for the requesting company to carry on its business
This bar is set so high to strike a fair balance between protecting competition and a dominant company’s incentive to invest in creating its own infrastructure. Conversely, these strict conditions do not apply if an infrastructure has been developed to allow third parties to use it as well.
The ECJ considered that Google’s Android Auto platform had not been developed solely for the needs of its own business, since access was open to third parties. As a result, the indispensability requirement of the refusal to supply test did not apply. Instead, the referring court must determine whether the interoperability refusal has actual or potential exclusionary effects and constitutes conduct which restricts competition on the merits, and is thereby capable of causing harm to consumers.
In this assessment, the fact that Enel and its competitors remained active on the market or even strengthened their market position could constitute evidence that Google’s conduct was incapable of producing such exclusionary effects. Evidence of the attractiveness of an app such as JuicePass to consumers would also be relevant to this assessment.
Once established as an abuse, an interoperability refusal may still be objectively justified where the grant of such interoperability would compromise the integrity or security of the platform, or where it would be impossible for other technical reasons. Without these objective justifications, the dominant company must develop templates to facilitate interoperability within a reasonable period of time, and in return for an appropriate financial contribution from the company requesting interoperability.
Conclusion
Access refusals by dominant companies may play out differently depending on whether their platforms have been built solely for their own business purposes or with a view to enabling third parties to use them too. Big Tech will therefore face significant challenges under the EU competition rules when denying third parties access to its open platforms
