Advocate General Medina has issued an opinion in Case C-233/23 | Alphabet e.a.
Google is the author and developer of Android OS, an open-source operating system for Android mobile devices. In 2015, Google launched Android Auto, an app for mobile devices with an Android operating system that enables users to access certain apps on their smartphone through a car’s integrated display. Third-party developers can create their versions of their own apps that are compatible with Android Auto by using templates that Google provides.
Enel X provides electric car charging services. In May 2018, it launched JuicePass, an app for charging electric vehicles. In September 2018, Enel X asked Google to make JuicePass compatible with Android Auto. Google refused, stating that, in the absence of a specific template, media and messaging apps were the only third-party apps compatible with Android Auto. Google justified its refusal on security concerns and the need to allocate the resources necessary to create a new template.
The Italian Competition Authority found Google’s conduct to be in breach of EU competition rules. It held that in obstructing and delaying the publication of JuicePass on Android Auto, Google had abused its dominant position. Google challenged this decision and the matter was referred to the CJEU.
Article 102 of the TFEU prohibits abuse by one or more undertakings of a dominant position within the internal market or in a substantial part of it and declares such abuse to be incompatible with the internal market in so far as trade between member states may be affected. That includes, under certain circumstances, cases where a dominant undertaking refuses to deal with another firm or, more specifically, where the dominant undertaking refuses to grant access to a product, service or infrastructure of its own in favour of another undertaking that operates in a closely related market.
Advocate General Medina considered if this case falls within the case law about refusals to grant access by a dominant undertaking (including Bronner (Case C?7/97). The Advocate General then considered if access obligations, in terms of interoperability, require dominant undertakings to engage in an active behaviour such as the development of the necessary software.
Advocate General Medina concluded that EU case law does not apply where the platform whose access is requested has not been developed by the dominant undertaking for its exclusive use but has been conceived and designed with the aim of being used by third party apps. In this context, it is not necessary to demonstrate that that platform is indispensable for the neighbouring market.
An undertaking abuses its dominant position if it engages in conduct consisting of excluding, obstructing or delaying access by a third-party app if that conduct can produce anticompetitive effects to the detriment of consumers and is not objectively justified. A refusal by a dominant undertaking to provide access to a third-party operator to a platform may be objectively justified where the access requested is technically impossible or where it could affect, from a technical perspective, the performance of the platform or run counter to its economic model or purpose. However, the mere fact that, to grant access to that platform, the dominant undertaking must, in addition to giving its consent, develop a software template considering the specific needs of the operator requesting access cannot justify a refusal of access, provided that an appropriate time frame is allowed for that development and that the dominant undertaking receives appropriate payment. A dominant undertaking must communicate the time and cost to the operator requesting access.
EU competition rules do not require objective criteria to be predefined to examine access applications to a platform. An exception would be where several requests are made simultaneously. The absence of such criteria might be considered when assessing if conduct is abusive, when it leads to excessive delay in granting access or to discriminatory treatment among concurrent applicants.
We now await the CJEU’s decision.
