GOOGLE AND THE ANDROID AUTO CASE: THE COURT OF JUSTICE RULES ON THE CONCEPT OF ABUSE OF A DOMINANT POSITION

In the European Union, competition law has always played a key role. However, with the growing digitalization of the economy, there is an increasing need to adapt these rules to new forms of business activity. The European legislature and the courts have thus focused their attention on technological platforms, regulating previously unexplored market dynamics.

In this regard, the Digital Markets Act (DMA), the European Regulation on digital markets, which entered into force in 2023, seeks to prevent abuses of dominant positions in advance by introducing sanctions for big tech companies that fail to comply with the prescribed obligations.

Nonetheless, the central legal provision in this case remains Article 102 of the Treaty on the Functioning of the European Union (TFEU), which, unlike the DMA, operates ex post by penalizing anticompetitive conduct after it has occurred. Specifically, under Article 102 TFEU, any abuse by one or more undertakings of a dominant position within the internal market, or in a substantial part thereof, that may affect trade between Member States is prohibited. The article provides examples of abusive practices, including imposing unfair selling prices or conditions, limiting production to the detriment of innovation, engaging in discriminatory conduct against certain operators, and introducing contractual obligations unrelated to the main subject of the contract.

The Court of Justice of the European Union has clarified the scope of this provision with regard to the abuse of dominant position arising from the refusal, by a major digital platform, to ensure interoperability with a third-party application.

The dispute involved Alphabet Inc., Google LLC, and Google Italy Srl, on one side, and the Italian Competition Authority (AGCM) on the other. The case originated from the AGCM’s decision to impose sanctions on Google for violating Article 102 TFEU by refusing to integrate its Android Auto platform with an application developed by Enel X Italia Srl, named JuicePass, which provides various services for the recharging of electric vehicles.

The CJEU was asked to deliver a preliminary ruling on five questions referred by the Consiglio di Stato (Italy), regarding the interpretation of the European provision, whose clarification was necessary for the continuation of the domestic proceedings.

In its judgment of 25 February 2025 (Case C-233/23), the Grand Chamber of the Court provided interpretative guidance, resolving the complexities that had emerged in connection with Article 102 TFEU in light of the specific features of the case at hand.

Starting from the premise that Google holds a dominant position in the Android Auto market, it confirmed that the refuse to ensure interoperability between the platform and a third-party application, can constitute abuse of a dominant position. This holds true even if the platform is not strictly indispensable for the development and commercial exploitation of the application. What matters is whether the platform enhances the application's attractiveness for consumers and whether it was designed for use by third parties, not exclusively for the platform owner’s internal activities.

Continuing its analysis, the Court further specified that even if competitors of the dominant undertaking remain active in the market without benefiting from the requested interoperability, this does not automatically preclude the finding of potential anticompetitive effects. Moreover, it is not necessary to demonstrate that the conduct has led to the actual exclusion of competitors from the market. The provision penalises the mere abusive exploitation of market power, regardless of whether it leads to successful exclusionary outcomes, since distortive effects on the market may arise from various factors, requiring a case-by-case assessment.

The Court also acknowledged that a dominant undertaking may legitimately refuse interoperability if it provides objective justifications. In particular, the refusal can be objectively necessary due to the absence of a suitable template for the relevant app category, risks to platform integrity or security, or technical impossibility. Outside these circumstances, the dominant undertaking is required to ensure interoperability, possibly in exchange for fair compensation and within a reasonable time.

Lastly, the Court clarified that in cases concerning Article 102 TFEU, the competition authority is not required to define with precision, regarding the downstream market where the refusal generates anticompetitive effects, both the product market and the geographic market. The identification of a potential relevant market is sufficient.

In conclusion, this judgment provides updated interpretative criteria for the application of Article 102 TFEU to digital markets. It sets a significant precedent on fair access to digital infrastructures, strengthening the prohibition of discriminatory and exclusionary practices by major players in the technology sector.

Authors: Avv. Gianfilippo Chiricozzi e Federica Fanesi