This week, the Court of Justice clarified in case C 245/24 (Lukoil) the application of the essential facilities doctrine, first established in the 1998 Bronner judgement. This doctrine imposes a higher evidentiary burden on competition authorities when assessing refusals to supply or grant access under Article 102 TFEU, to protect property rights and maintain incentives to invest. It requires authorities to demonstrate that the refusal concerns an essential facility, making access indispensable for competitors on downstream markets.

The Court of Justice has progressively narrowed the scope of this doctrine. In recent years, it excluded its application in cases:
• where there is a legal obligation to supply (Deutsche Telekom and Slovak Telekom),
• where there is no outright refusal to supply (Google Shopping),
• where the dominant undertaking does not own or control the facility (Lithuanian Railways), or
• where the facility was not developed for the undertaking’s own use (Android Auto).

In its latest judgement, the Court adds another exclusion: the doctrine does not apply where the facility was developed by a public authority and transferred to the undertaking at non market terms, meaning without a proper competitive bidding process.

In its Opinion on this case, the Advocate General hinted that Android Auto may apply only to digital platforms. The Court did not however address the Android Auto judgement, deeming it irrelevant to the case, so further clarification on its scope remains pending.

#competitionlaw #ECJ #Article102 #Bronner #abuseofdominance #essentialfacilities #Lukoil #contrastupdate