The Court of Justice of the European Union (CJEU) has handed down its judgment in the case Enel Italia v Google (C‑233/23) some weeks ago. The Court held that a platform operator who refuses to ensure interoperability for third-party apps may abuse its dominant position, even if the platform is not indispensable for the commercial use of the app in question. However, access may be denied if it can be objectively justified, for example due to security or integrity concerns. Where necessary, the dominant platform operator must develop appropriate technical templates.
Background
In 2018, Enel launched its app JuicePass to allow electric vehicle users to locate and book charging stations.
To enable in-car navigation, Enel required access to the vehicle operating system, allowing drivers to use the app directly via the vehicle’s display. Enel therefore requested technical compatibility from Google for the app’s integration into the Android Automotive OS. Similar access had already been granted to other third-party apps via standardised templates provided by Google.
Google refused the request. Initially, it argued that no relevant template existed, since only media and messaging apps were supported. Later, Google invoked security concerns and the need to rationally allocate development resources.
The Italian Competition Authority (AGCM) fined Google €102 million. Google appealed, and the Italian Council of State referred key legal questions to the CJEU for a preliminary ruling.
Key Findings
1. No Indispensability Requirement
The CJEU rejected the notion that access must be indispensable for a finding of abuse under Article 102 TFEU in this scenario. This marks a departure from the traditional “essential facilities doctrine”, particularly the criteria set out in Bronner (C‑7/97), which required that the refusal of access make it impossible to compete downstream.
Instead, the Court held that a refusal can be abusive even where access is not indispensable, provided that:
- the platform is designed to enable third-party use, and
- interoperability with the app increases its attractiveness to consumers.
The judgment thus narrows the relevance of ownership rights and freedom of contract as justifications for refusal. While some ambiguity remains — especially due to footnote 5 of the Court’s press release — the ruling clearly lowers the threshold for access obligations in open platform environments.
2. Security and Integrity Concerns
Refusal may still be justified where:
- no appropriate template existed at the time of the request;
- interoperability would threaten the platform’s integrity or security;
- or technical constraints make development impossible.
In all other cases, the dominant undertaking is obliged to develop the required template within a reasonable timeframe. A reasonable fee may be charged, taking into account:
- the third party’s needs,
- the actual cost of development,
- and the dominant firm’s right to a reasonable return.
Importantly, cost alone is not a valid justification for refusal. On the contrary, access seekers may proactively offer to share development costs, increasing pressure on platforms to comply.
3. Effect on Market Competition
The CJEU left it to the referring court to determine whether the refusal actually hindered competition. However, the Court made clear that ongoing economic viability of the complainant does not negate anti-competitive effects. This is a critical point for claimants, as it neutralises the often-heard defence that “there was no harm because the firm still exists.”
Broader Reflections on the Judgment
1. Contractual Freedom vs. Competition Law
The decision significantly recalibrates the balance between freedom of contract and antitrust obligations. The traditional deference to private property and contractual autonomy is now subject to more stringent scrutiny when it comes to dominant digital platforms that offer third-party access.
Operators can no longer rely on the indispensability threshold to avoid access obligations once they open their systems to external apps. The actual impact on competition is more relevant than a formalistic assessment of internal exclusivity.
2. Practical Compliance Challenges
The ruling raises difficult implementation questions. Dominant platforms must now be ready to develop new templates within a reasonable time unless they can prove justified grounds for refusal.
This involves:
- significant technical and organisational effort;
- transparent and verifiable cost allocation;
- and the creation of fair, non-discriminatory access conditions.
The “reasonable timeframe” for template development is undefined and will likely become a source of litigation. The burden is on the platform to justify delays and document cost structures, especially where access is denied.
3. Strategic Impact on Market Dynamics
In the long term, the ruling could:
- Empower third-party developers to seek access to platform functionalities;
- Strengthen private enforcement of competition law;
- and potentially discourage the development of open systems, if platforms seek to avoid regulatory exposure by closing off access altogether.
The CJEU appears to be signalling a shift toward platform openness, albeit without abandoning all property-based defences. The judgment could be a catalyst for more equitable access to digital infrastructure, but may also provoke strategic pushback from dominant players.
4. The Role of Competition Law in the Digital Age
This ruling reflects the evolving role of EU competition law in the digital transformation. Regulators face increasing pressure to ensure interoperability, contestability, and innovation, without stifling investment or technical independence.
The Enel/Google decision marks a critical turning point in platform regulation — placing the burden of justification squarely on dominant operators and reinforcing the principle that “no” must be reasoned, not assumed.
Legal Support for Your Company
The judgment in C‑233/23 Enel Italia v Google sets a significant precedent in EU competition law. If your business faces similar issues involving access to platforms, market power, or interoperability obligations, early legal guidance is essential.
Our boutique law firm combines deep legal expertise with technical understanding and years of experience in digital competition cases. Contact us to explore how we can help you protect your interests — and unlock your market potential.
