ECJ facilitates enforcement of claims of app providers against dominant platforms to establish interoperability of app and platform

The case was originally brought forward by the Italian competition authority ("AGCM"). The AGCM had imposed a fine of over 102 million euros on Google on the basis of Art. 102 TFEU and obliged the company to enable the interoperability of Google's Android Auto with the "JuicePass" app of the Italian e-charging station operator ENEL X. According to AGCM Google's behavior has abusively impeded and delayed the availability of this app.

The JuicePass app has been available for Google Android OS since 2018, but was not compatible with Google's Android Auto for a long time. Google Android Auto allows apps to be used directly via the infotainment function of the car screen itself. In the case of the JuicePass app, this was particularly  relevant because it enables the display of and navigation to free e-charging stations and associated services, such as booking and payment processing for the charging process. Despite multiple requests from ENEL X to enable interoperability with Google Android Auto, Google initially refused such access on various grounds, including that compatibility was so far only established for other types of apps. The technical template required to establish interoperability was not made available until much later.

Google appealed against the AGCM’s decision. The referring court asked the ECJ to answer various questions on the interpretation of Art. 102 TFEU in connection with the refusal of access to an infrastructure in the form of a platform.

1. The ECJ ruled that an abuse within the meaning of Art. 102 TFEU in the form of a refusal to establish interoperability by a dominant platform does not require that the access to the platform is indispensable for the use of the application. An increase in the attractiveness of the application is sufficient if the platform was not developed solely for the platform operator's own purposes. In this context, the ECJ also distinguished the requirements from its previous "Bronner case law" (ECJ, judgment of 26 November 1998, C-7/97 - Bronner, available here). According to this judgement, a refusal to grant access to the infrastructure of a dominant undertaking could only be considered as an abuse if, among other things, the infrastructure was essential for the requesting undertaking to carry out its economic activities. In the opinion of the ECJ, however, these strict conditions were not applicable to the case presented. The decisive factor for the applicability of the indispensability criterion is whether the infrastructure or platform was created exclusively for the dominant undertaking’s own purposes. In this case, it is important to protect the incentives for the development of such structures for own use through restrictive access criteria. Hence, it is different if the infrastructure was developed with the aim of enabling third parties to use the infrastructure as well. In the present case, Google had already made Google Android Auto compatible or accessible for other apps by providing the necessary technical templates. Increasing the attractiveness of the application by creating interoperability with the platform is then sufficient for an abuse within the meaning of Art. 102 TFEU, the ECJ held.

2. Google's defence against the finding of an abuse was that Enel X and its competitors had been successful on the market even without interoperability and had recently expanded their market shares, which is why the refusal could not have had any negative effects. According to the ECJ, this argument does not in itself exclude that Google's refusal could have had negative effects within the meaning of Art. 102 TFEU. This is because it is the potentially harmful effect of the behaviour of the dominant undertaking that is important, wherefore it is not necessary to prove an actual effect. The absence of actual negative effects could also have a variety of other reasons. Furthermore, it cannot be ruled out that the impeded undertakings would have developed even better. However, such a positive development of the claimant could be an indication to be examined on a case-by-case basis, in particular, in analysing whether the behaviour of the dominant undertaking was not suitable to have an exclusionary effect.

3. According to the judgement, a refusal to enable interoperability can only be justified for serious reasons. These could include jeopardising the integrity or security of the platform as well as technical impossibilities. The burden of proof for such justification is on the dominant undertaking’ side. Otherwise, a dominant platform operator is obliged to establish interoperability, for example by developing appropriate templates. However, a reasonable period of time and, if necessary, appropriate financial compensation must be granted. The dominant undertaking can prove a possible objective justification either by proving the objective necessity of the behaviour in question or by demonstrating superior efficiency benefits for consumers. No (permanent) justification is possible by pointing out that the technical requirements, in this case the templates, have not yet been developed for interoperability or that development is difficult. However, the latter can be taken into account when assessing the reasonable period of time for the provision of interoperability and the financial compensation.

In sum, the ECJ aims at adapting previous jurisprudence to the functioning of digital markets by softening the "Bronner" criteria to a certain extent without abandoning them altogether. The ECJ's decision is in line with recent developments and trends: digital platforms are categorised as infrastructure and the refusal of interoperability is assessed as a refusal of access. In any case, the ECJ has clearly rejected Google's attempt to take advantage of its position as a digital platform operator: A digital platform operator who designs its structures in such a way that the platform is opened up by the platform owner to applications in order to increase the attractiveness of that platform cannot , refuse access to that platform without good reason. If the platform has already been made accessible to other comparable apps, one may wonder whether the right of access cannot also be achieved via claiming a violation of the prohibition of discrimination.

On the one hand, however, the new case law does not create an opportunity for a free ride for (aspiring) platform users. The app developers can demand that access be granted to them and that interoperability must be established through technical performance, if necessary (in this case by developing and providing certain templates). However, the platform can demand a certain – appropriate – financial compensation for this. It remains to be seen what further details will be provided in future cases regarding the procedure and the appropriateness of the time period and financial compensation. The appropriateness of the financial compensation is likely to be linked above all to the actual effort required to establish interoperability. In particular, the operators of platforms that were not created solely for their own activities will have to pay close attention to the reasons they give when access or interoperability requests are rejected and how promptly the rejection is made. According to the ECJ, the absence of a response alone can be an indication that a refusal was not objectively justified.

On the other hand, the judgement strengthens the position of app developers. With the right argumentation, they may in future reach their goal faster or more easily than Enel X did with the JuicePass app. As with the licensing of standard-essential patents, the focus of the discussion in future could shift towards the question of what is an appropriate remuneration which will depend on how burdensome it is to establish interoperability. In a legal dispute, the burden of proof is likely on the platform’s side. If it later turns out that access was unjustifiably denied, the app developer may also claim damages from the dominant platform for lost profits.