Bronner lives! (On the position performed by Bronner and its important services doctrine on current competitors legislation affairs) – Official Weblog of UNIO – FortiGate

Beatriz Magalhães Sousa (grasp’s pupil in European Union Regulation on the College of Regulation of College of Minho)

On 10 July 2025, Advocate Basic Laila Medina delivered her opinion on the LUKOIL Bulgaria EOOD and LUKOIL Neftohim Burgas AD v. Komisia za zashtita na konkurentsiata (Competitors Safety Fee) case (C-245/24).[1] This opinion comes at a time the place questions run wild concerning the position performed by Bronner and its important services doctrine on current competitors legislation affairs – a direct impact of the result of the AndroidAuto case (C-233/23),[2] on 25 February 2025.

1. Bronner and the important services doctrine

Based on Part 1 of the Sherman Act 1890,[3] the important services doctrine gained traction in United States v. Terminal Railroad Affiliation. In that case, the U.S. Supreme Court docket held that the Affiliation’s management over the only real viable means of crossing the Mississippi River, aligned with the geographical impossibility of constructing an alternate, rendered the refusal of entry to that channel unlawful below antitrust legislation.[4] This outlined important facility as “at a minimal, a resourced possessed by the defendant (dominant enterprise) that’s important to the plaintiff’s aggressive viability”.[5]

Though it misplaced momentum within the U.S., the speculation was initially acquired by the European Union below Article 86 of the Treaty establishing the European Financial Neighborhood (ECC Treaty) [current Article 102 of the Treaty on the Functioning of the European Union (TFEU)]. The Fee started to think about a dominant enterprise’s refusal to grant entry to a necessary facility as a potential structure of abuse of that place of dominance. This concept, developed by means of a collection of selections by each the European Fee and the Court docket of Justice, culminated in 5 rigorous criterion delivered by the Bronner judgment: (i) the dominant enterprise should have refused to produce; (ii) the product, service or infrastructure to which entry is requested should be indispensable to permit competitors within the downstream market; (iii) the refusal should be more likely to end result within the elimination of efficient competitors in mentioned market; (iv) the refusal should be prone to trigger hurt to shoppers, and (v) there should be no goal justification for the refusal to produce.[6]

These standards goal, so far as potential, to not represent a risk to basic rights, comparable to the fitting to property (Article 17 of the Constitution of Elementary Rights of the European Union) and to not impose a sharing obligation so burdensome that it turns into a hindrance to innovation, funding and market dynamism.[7]

2. Android Auto and the departure from Bronner

Earlier than AndroidAuto, an alternate path, parallelled to Bronner, had begun taking form, particularly within the context of digital markets – or what could be denominated as “new financial system”.[8] The European Fee’s choice in Google Search (AT.39740), adopted by the Basic Court docket’s judgment in Google Procuring (T-612/17), could be interpreted as steppingstones on this improvement. When requested if the Bronner standards utilized to the case, the Court docket discovered that the info and traits deviated from these in Bronner and, due to this fact, the presence of a refusal to produce didn’t, in itself, suggest the appliance of the standards.[9]

In some methods, this opened the door for what got here to be AndroidAuto. The dispute dates again to 2018, when Enel X Italia, an organization which had created an app to facilitate the finding and scheduling of charging stations for electrical autos, requested entry to Android Auto, a Google-developed app that allowed customers to attach cell functions on to a automobile’s central show system. Confronted with a refusal by Google, Enel filed a criticism to the Italian Competitors Authority (AGCM), which discovered that Google had abused its dominant place and fined the corporate. The case was then appealed earlier than the Tribunale amministrativo regionale per il Lazio and later earlier than the Consiglio di Stato, the place a request for a preliminary ruling was submitted, grounded in the truth that the fined firm thought-about that the Bronner standards had not been appropriately assessed.[10]

On this context, each Advocate Basic Medina’s opinion and the Court docket’s judgment adopted the identical line: Google’s refusal to permit interoperability between Juice Cross (Enel’s app) and Android Auto could represent an abuse, even when the indispensability criterion isn’t met. This evaluation is dependent upon whether or not or not the attractiveness of the applicant enterprise within the downstream market advantages from the entry granted.[11] Right here, the identical reasoning utilized in Google Procuring is adopted, justifying the non-application of Bronner with the particular circumstances of the case – Android Auto, not like the ability in query in Bronner, was not created solely for Google’s personal and unique use. Quite the opposite, one in all its important functions is to be accessed by third social gathering app builders, making it ineffective to use the indispensability criterion, since there’s no have to protect the liberty of contract or the fitting to property.[12]

This signifies a narrowing of the scope of utility of the Bronner standards, which now appears to solely apply to dominant undertakings that develop services to mitigate their very own wants and for their very own inside use. A set of recent standards look like developed in Android Auto: (i) the indispensability requirement, as defined, is changed by an attractiveness based mostly criterion; (ii) the strictness of the elimination of all efficient competitors is relaxed, shedding better gentle on the mere obstruction of competitors, and (iii) the inexistence of a template that enables the interoperability is now not seen as a ample goal justification.[13]

One query, nonetheless, trumped the ultimate choice. On condition that the particular circumstances of the case are a very necessary a part of the ultimate final result, did the brand new set of necessities and the departure from Bronner apply solely to the brand new financial system, particularly digital platforms? Or wouldn’t it cowl all kinds of infrastructure, relegating Bronner to a secondary position that it had by no means performed earlier than in European competitors legislation? This query arises as a result of, though each the Advocate Basic’s opinion and the Court docket’s remaining choice particularly point out digital platforms, there’s a normal reference to services when proposing the brand new set of standards.

3. The LUKOIL Bulgaria case

The LUKOIL Bulgaria case appears to reply these inquiries to some extent. The primary subject right here is the appliance of Bronner in response to a refusal to grant entry to infrastructure belonging to a former state-owned monopoly that has since been privatised.[14] Primarily, two corporations concerned within the motor gasoline storage market are involved – LUKOIL Burgas (producer) and LUKOIL Bulgaria (distributor) – which had existed since privatisation and had invested considerably within the “undertakings at subject” (the port of Burgas, along with the Rosenets Terminal, had been designated by decree as “strategic infrastructure”). This places, because the competitors authority got here to agree, the LUKOIL group in a really distinctive and advantageous place – it acts as the most important authorised storer and wholesaler of gasoline and associated merchandise. In 2020, an obligation to grant entry was imposed, which was disregarded till 31 March 2021 (the top of the infringement interval, which started on 1 January 2016). Throughout this era, the group selected to disclaim rivals entry to its warehouses and pipeline community. The request for a preliminary ruling was made after LUKOIL challenged the choice of the Bulgarian Nationwide Competitors Authority (NCA), which discovered that the group had infringed each Article 102 TFEU and Article 21(5) of the ZZK[15] (which prohibits the “unjustified refusal to produce items or providers”).[16]

Taking all of this into consideration, the Bulgarian NCA did, nonetheless, conclude that the Bronner doctrine didn’t apply to the circumstances of the case – primarily as a result of the infrastructure was constructed on public funds and there was an entry obligation in place. This raised doubts within the referring courtroom, specifically with regard to the appliance of the Bronner check, asking, in its second query referred for a preliminary ruling, what standards must be taken into consideration within the choice and whether or not the Bronner check must be excluded in all circumstances the place public funding has performed a job within the improvement of the infrastructure.[17]

Whether or not the Bronner standards applies or to not the case at hand is for the referring courtroom to determine. Nonetheless, AG Medina establishes a set of conditions the place the check remains to be appropriate for utility: when the dominant enterprise (i) autonomously workout routines all decision-making powers over the ability, acquired by means of business transaction with third events, by the use of personal financing; (ii) controls the ability acquired by means of privatisation, offered it doesn’t profit from statutory monopoly, or (iii) has autonomous decision-making rights over the ability derived from a concession contract, even with out formal possession. In contrast, Bronner doesn’t apply in conditions the place sure provisions imposed by competent state authorities, be it by means of concession or privatisation contracts, restrict the decision-making autonomy of the dominant enterprise.[18] On this gentle, the opinion reiterates that context performs a vital half on this evaluation[19] and highlights that the applicability of Bronner is considerably depending on the autonomous management the enterprise workout routines or not over the infrastructure.[20] Which means that, if thought-about that LUKOIL has management over the infrastructures in query and if its decision-making autonomy isn’t gravely restricted,[21] then it might nonetheless be protected by the appliance of the Bronner check.

AG Medina, albeit tracing the continued relevance of the important services doctrine, attracts a distinction between the “previous financial system”, comprised of conventional infrastructures, and the “new financial system”, which, as talked about above, has already been topic to interpretation below the Bronner standards within the Android Auto ruling. In paragraph 34, the Advocate Basic particularly mentions this choice, stating “The Court docket has additionally defined that the Bronner standards (…) don’t apply in relation to digital platforms, to conditions the place the dominant enterprise didn’t develop such a platform solely for the wants of its personal enterprise, however with a view to enabling third-party undertakings to make use of it”, singling out digital platforms as soon as once more and implicitly answering the query that arose with AndroidAuto relating to whether or not the Bronner check is fading in relevance to the digital financial system or to all sectors generally.

Following this opinion, plainly Bronner remains to be very a lot alive. The case of LUKOIL Bulgaria reaffirms that the requirements consolidated in 1998 stay related for conventional and infrastructure-heavy sectors. On the identical time, it gives a chance to additional make clear the strategy outlined in AndroidAuto, reflecting that as circumstances develop into more and more advanced and digital and conventional economies start to overlap, context and particular circumstances are key to sensibly analysing future refusals to produce. Though some have gotten sceptical, a considerably twin framework appears to be rising that clearly reserves a definite strategy for the brand new financial system whereas preserving one other for the previous financial system.

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[1] Opinion of Advocate Basic Medina, LUKOIL Bulgaria EOOD and LUKOIL Neftohim Burgas AD v. Komisia za zashtita na konkurentsiata, 10 July 2025, C-245/24, ECLI:EU:C:2025:570

[2] Judgment of the Court docket (Grand Chamber), Alphabet Inc., Google LLC, Google Italy SRL v. Autorità Garante della Concorrenza e del Mercato, 25 February 2025, C-233/23, ECLI:EU:C:2025:110

[3] First antitrust legislation authorised by the U.S. Congress. It’s a chart destined to protect a free and unrestricted competitors. In its first Part it declares as unlawful “each contract, mixture within the type of belief or in any other case conspiracy, in restraint to commerce or commerce among the many a number of States, or with overseas nations”. See “The Antritust Regulation”, Federal Commerce Fee, https://www.ftc.gov/advice-guidance/competition-guidance/guide-antitrust-laws/antitrust-laws, accessed 16 July 2025.

[4] David M. Podell, “The evolution of the important services doctrine and its utility to the deregulation of the pure gasoline trade”, Tulsa Regulation Evaluation, vol. 24, 4 (1989): 613-614.

[5] David M. Podell, “The evolution of the important services doctrine and its utility to the deregulation of the pure gasoline trade”, 617.

[6] Judgment of the Court docket (Sixth Chamber), Oscar Bronner GmbH & Co. KG and Mediaprint Zeitungs- und Zeitschriftenverlag GmbH & Co. KG, Mediaprint Zeitungsvertriebsgesellschaft mbH & Co. KG, Mediaprint Anzeigengesellschaft mbH & Co. KG, 26 November 1998, C-7/97, ECLI:EU:C:1998:569, para. 41.

[7] Paula Vaz Freire, “A obrigação de facultar acesso a recursos produtivos essenciais no direito da concorrência”, Revista da Faculdade de Direito da Universidade de Lisboa, XLIX, 1 and a pair of (2008): 122-123. See, additionally, Opinion of Advocate Basic Medina, LUKOIL Bulgaria, C-245/24, paras. 29-30.

[8] The time period “new financial system” first appeared within the 90s when the Web began to have an actual influence in the marketplace, creating new industries that depend on new applied sciences and make themselves the “driving pressure of financial progress and productiveness”. See Will Kenton, “New financial system: definition, historical past, and examples of corporations”, Investopedia, 15 July 2024, https://www.investopedia.com/phrases/n/neweconomy.asp, accessed 16 July 2025.

[9] Judgment of the Basic Court docket (Ninth Chamber), Google LLC and Alphabet Inc. v. European Fee, 10 November 2021, T-612/17, ECLI:EU:T:2021:743, paras. 229 and 230. This case was extraordinarily necessary as a result of, in addition to its implications for Bronner, it created a brand new sort of abuse of dominance – self-preferencing. See “Google Procuring: self-preferencing could be abusive”, Stibbe, 2 October 2024, https://www.stibbe.com/publications-and-insights/google-shopping-self-preferencing-can-be-abusive, accessed 16 July 2025.

[10] Judgment of the Court docket, Alphabet and Others, C-233/23, paras. 4-23.

[11] Press Launch No 19/25, Judgment of the Court docket in Case C-233/23, Alphabet and Others, Luxembourg, 25 February 2025, https://curia.europa.eu/jcms/add/docs/utility/pdf/2025-02/cp250019en.pdf, accessed 16 July 2025.

[12] Alphabet and Others, paras. 36-45.

[13] Alphabet and Others, paras. 52-87.

[14] Opinion of Advocate Basic Medina, LUKOIL Bulgaria, C-245/24, para. 1.

[15] Zakon za zashtita na konkurentsiata (Regulation of the Safety of the Competitors).

[16] Opinion of Advocate Basic Medina, LUKOIL Bulgaria, C-245/24, paras. 2-16.

[17] Case C-245/24, LUKOIL Bulgaria and LUKOIL Neftohim Burgas: Request for preliminary ruling from the Administrativen unhappy Sofia-oblast (Bulgaria) lodged on 5 April 2024 – LUKOIL Bulgaria EOOD and LUKOIL Neftohim Burgas AD v. Komisia za zashtita na konkurentsiata.

[18] Opinion of Advocate Basic Medina, LUKOIL Bulgaria, C-245/24, para. 81.

[19] Opinion of Advocate Basic Medina, LUKOIL Bulgaria, para. 38.

[20] Opinion of Advocate Basic Medina, LUKOIL Bulgaria, paras. 62-68.

[21] Opinion of Advocate Basic Medina, LUKOIL Bulgaria, para. 79.

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Image credit score: by Sora Shimazaki on pexels.com.