The Court of Justice of the European Union (CJEU) recently ruled on Google’s denial of access in the Enel/Google case, concerning third-party app integration in vehicle operating systems. In its decision, the Court held that it is not necessary to demonstrate that access is indispensable, a statement some have interpreted as signalling the end of the Bronner test.
A closer look reveals, however: Bronner still applies — but only under specific conditions. The ruling marks a significant clarification: platform operators can no longer routinely invoke the indispensability requirement to shield themselves from access obligations.
Origins of the Bronner Test
The Bronner case (C‑7/97) is a landmark in EU competition law, particularly regarding the essential facilities doctrine. It established strict conditions under which the refusal to grant access to infrastructure by a dominant firm constitutes abuse of dominance under Article 102 TFEU.
Originally developed in the context of physical infrastructure (e.g., ports, railway bridges), the doctrine has since been applied to intellectual property and digital infrastructures.
The Bronner test sets out three cumulative requirements:
- Indispensability – No realistic alternative exists;
- Elimination of competition – The refusal would eliminate effective competition on a downstream market;
- No objective justification – The refusal is not objectively justified.
The underlying rationale is one of negative liberty: dominant undertakings are not generally required to share their property unless strict conditions are met.
Did Enel/Google Mark a Paradigm Shift?
In its February 2025 judgment in Enel/Google, the CJEU held that access obligations may arise even where access is not indispensable. It suffices that third-party distribution through the platform offers commercial benefits for the app provider and its users.
The logic: where a platform is already open to third parties, the operator cannot fall back on the claim that the platform is for internal use only. The act of opening the platform triggers non-discrimination obligations.
Put differently: if a platform is opened to third-party providers, the operator must enable fair and equal access, subject to strict technical justifications only. In contrast, a closed ecosystem — used solely for internal services — remains protected by the Bronner standard.
In the Enel case, templates for third-party integration already existed. Google was therefore required to treat Enel equally, including by restoring any missing technical interfaces. If the vehicle OS had been entirely closed, Bronner might still have applied.
Where Does the Bronner Test Still Apply?
The Bronner test retains its relevance in closed, private infrastructures, where no access has ever been granted to third parties.
This includes:
- Software or platforms developed exclusively for internal use;
- Systems not made available to third parties, either commercially or operationally;
- Cases where interoperability or templates have never been provided.
By contrast, systems built under a legal mandate or public-service objective may fall under different access regimes, especially where regulatory duties to open the platform already exist.
Implications for Platform Operators
The Enel/Google decision means platform operators can no longer automatically invoke the indispensability criterion. Once technical templates or APIs are made available, the operator must ensure non-discriminatory access for all third parties.
This significantly increases the regulatory burden for gatekeepers:
- They must engage seriously with incoming access requests;
- They must establish and maintain reasonable, transparent access conditions;
- They must prepare for legal scrutiny over refusals or delays.
Opening a platform thus comes with strategic risk. Once opened, the platform must proactively mitigate exclusionary effects — or risk a finding of abuse of dominance.
A Practical Distinction: Open vs. Closed Platforms
The case law now suggests a dual standard:
- Closed platforms: access subject to Bronner criteria (high threshold).
- Open platforms: access governed by non-discrimination principles (lower threshold).
This distinction will likely lead to future disputes over what qualifies as “open.” Platform operators must be prepared to demonstrate the nature of their systems and the rationale behind any access limitations.
Strategic Guidance for Companies
We support both access seekers and platform operators in navigating these complex questions:
- Strategic analysis of platform design and access models;
- Legal assessment of exclusionary risks;
- Development of compliance frameworks and access policies;
- Representation in competition proceedings and litigation.
We specialise in legal and technical questions at the intersection of access, platforms, and competition. With years of experience advising both incumbents and challengers, we help companies find practical, legally sound solutions to digital access disputes.
Contact us to discuss your case.
