In the last few weeks, we have seen important developments from different angles regarding the opening up of digital platforms. Departing from the Bronner “essential facilities” doctrine last month, the Court of Justice (“CJEU” or “Court”) ruled that, based on Article 102 TFEU, Google could not exclude third parties from its “Android Auto” platform (C-233/23). The Court’s interpretation supplements the European Commission’s (“EC”) toolbox in its campaign against dominant digital platforms. Only last week, the EC relied on the Digital Markets Act (“DMA”) to order Apple to open long-standing closed features such as AirDrop and AirPlay to third-party headset and smartwatch manufacturers.
Both the CJEU judgment and the EC decision have a similar outcome: Google and Apple are forced to improve the third-party interoperability of their platforms. This development creates opportunities for business users considering their access rights to platforms. The modalities of the required interoperability, however, will depend on the legal instruments under which it is enforced.
Departure from the essential facilities doctrine: a new standard for open platforms
Android Auto, Google’s alternative to Apple CarPlay, allows Android phone users to display their apps on in-vehicle screens. Third-party developers can integrate their apps on Android Auto if they use Google’s provided “templates”.
In 2018, Google had only developed Android Auto templates for navigation and multimedia apps. Enel, a business user developing apps, requested that Google develop a template for JuicePass, an app that helps electric vehicle drivers locate, book, and navigate to charging stations. Google declined, citing security concerns and the need to efficiently allocate resources.
Following this refusal, the Italian Competition Authority (AGCM) fined Google over EUR 102 million, arguing that the refusal constituted an abuse of its dominant position.
Google challenged the decision under the Bronner doctrine, claiming that Android Auto was not indispensable for the app’s commercial viability: JuicePass was available on Android smartphones; it was only prevented from functioning on in-vehicle screens.
In response to a preliminary reference from the Italian court, the CJEU determined that business users have access rights to a dominant open platform even if it is not indispensable. The CJEU departed from the Bronner indispensability criterion (C-7/97) on the basis that Google developed Android Auto not only for its own business but also to allow third-party developers access. Neither Google’s freedom of contract and right to property nor the need to have incentives to invest in high-quality products and services justified Google’s refusal. In fact, the Court found that providing third-party access was an inherent part of Android Auto’s business model, as evidenced by the fact that Google had already granted access to other developers.
By moving away from the traditional essential facilities doctrine, the CJEU suggested a new legal test for open digital platforms. It held that even if a platform is not essential for an app’s commercial viability, a refusal to grant access could still constitute an abuse of dominance, provided that the platform was not developed exclusively for the dominant company’s own business needs.
Obligation to develop the necessary template
A dominant company may objectively justify its refusal to develop a template for interoperability if granting access would compromise the platform’s integrity or security, or if technical constraints make interoperability impossible. In the absence of such legitimate justifications, the undertaking in a dominant position is required to take proactive steps to ensure interoperability. Consequently, rather than outright refusing access, the company must work towards developing the necessary template or integration framework within a reasonable timeframe.
Financial compensation
Moreover, the Court acknowledged that ensuring interoperability may require resources and technical investment. As such, the dominant company may be entitled to appropriate financial compensation for the development and maintenance of the necessary template. However, this financial consideration must be reasonable, proportionate, and not serve as a disguised barrier to entry. Any excessive fees or unreasonable delays could, in themselves, be viewed as anti-competitive conduct.
This ruling sets a precedent for digital platform governance under Article 102 TFEU, reinforcing the principle that dominant firms must engage with third-party developers in a fair, transparent, and non-discriminatory manner. It also signals that strategic refusals aimed at foreclosing competition, rather than protecting legitimate interests, will face regulatory scrutiny under EU competition law.
There’s interoperability and… interoperability
While the Court recognises the principle of appropriate financial compensation for interoperability requests in the context of Article 102 TFEU, the interoperability requirements of the DMA take it one step further.
Under the DMA, gatekeepers are required to provide effective interoperability, free of charge (Article 6(7) DMA). To be clear, the DMA only applies to platforms designated as “core platform services” (“CPS”). Although Google Android has been designated as such, the EC distinguished Android Automotive as a separate OS (DMA.100009), meaning that the obligation to provide interoperability free of charge does not apply to Android Auto.
It appears that Apple will be the first gatekeeper to experience the effect of the DMA’s interoperability obligations first hand. On 19 March 2025 the EC adopted two decisions requiring Apple to improve third-party devices’ interoperability with iOS, the mobile operating system of its iPhone. The decisions imposed a list of stringent interoperability criteria in relation to key technologies (including AirPlay, AirDrop, Bluetooth pairing and Near-Field-Communication technologies) to ensure better integration of products like smartwatches and headphones with iPhones. And all of that… free of charge.
Aside from the level of detail in which the EC described the necessary changes to iOS APIs, (private) KPIs and frameworks (i.e. comparable to the “templates” referred to by the Court in Android Auto), it is striking that the EC imposed very strict deadlines for the release of each of the required interoperability solutions. The EC went so far as to specify in detail the timeline and even the iOS release in which new software features are to be made available to third parties in Europe.
Compared to those DMA interoperability requirements, Google seems better off with the Article 102 TFEU requirements suggested in the Android Auto judgment. That said, we can now expect national competition authorities to start looking at the EC’s application of the DMA for ideas on suitable Article 102 TFEU remedies.
To wrap up, businesses considering their access rights (or duty to provide access) to a platform or infrastructure are now confronted with three scenarios:
- If the platform is a CPS, the DMA applies and the platform owner needs to provide interoperability, free of charge.
- If the platform is not a CPS, but (i) is an open platform, and (ii) has a dominant position, the platform owner must provide interoperability within a reasonable timeframe and can ask for an appropriate financial contribution.
- If the platform is not an open platform but has a dominant position, the platform must be considered as an infrastructure in the sense of the Bronner doctrine, meaning that the criterion of indispensability needs to be fulfilled in order to require the dominant company to provide interoperability.
What’s next?
Whether the Court will apply the Android Auto test outside the digital sector (e.g. to traditional types of essential infrastructure) remains an open question – one that the CJEU is set to address soon. The Court is currently reviewing a decision involving Lukoil Bulgaria and the Bulgarian competition authority (“KZK”). In this case, the KZK found that Lukoil had abused its dominant position by restricting access to fuel storage facilities, pipelines and tax warehouses, thereby limiting fuel imports into Bulgaria.
Although the case concerns a refusal to supply by a dominant undertaking, the KZK chose not to apply the Bronner test, arguing that the infrastructure was financed through public funds and is not the property of the dominant undertaking. This case presents the CJEU with another opportunity to clarify the conditions under which the essential facilities doctrine applies and to provide further guidance on its Android Auto ruling and its scope of application.
In the meantime, in the digital sector, interoperability requirements both under the DMA and under Article 102 TFEU are starting to shape the business cases of digital platforms. Apple has still not launched Apple Intelligence in the EU, due to concerns with the DMA’s interoperability requirements. It remains to be seen how Google will react, and what the effects for European business and end users ultimately will be. And at what cost?
