Beatriz Magalhães Sousa (master’s student in European Union Law at the School of Law of University of Minho)
On 10 July 2025, Advocate General Laila Medina delivered her opinion on the LUKOIL Bulgaria EOOD and LUKOIL Neftohim Burgas AD v. Komisia za zashtita na konkurentsiata (Competition Protection Commission) case (C-245/24).[1] This opinion comes at a time where questions run wild about the role played by Bronner and its essential facilities doctrine on recent competition law affairs – a direct effect of the outcome of the AndroidAuto case (C-233/23),[2] on 25 February 2025.
1. Bronner and the essential facilities doctrine
Founded on Section 1 of the Sherman Act 1890,[3] the essential facilities doctrine gained traction in United States v. Terminal Railroad Association. In that case, the U.S. Supreme Court held that the Association’s control over the sole viable way of crossing the Mississippi River, aligned with the geographical impossibility of building an alternative, rendered the refusal of access to that channel illegal under antitrust law.[4] This defined essential facility as “at a minimum, a resourced possessed by the defendant (dominant undertaking) that is vital to the plaintiff’s competitive viability”.[5]
Although it lost momentum in the U.S., the theory was initially received by the European Union under Article 86 of the Treaty establishing the European Economic Community (ECC Treaty) [current Article 102 of the Treaty on the Functioning of the European Union (TFEU)]. The Commission began to consider a dominant undertaking’s refusal to grant access to an essential facility as a possible constitution of abuse of that position of dominance. This idea, developed through a series of decisions by both the European Commission and the Court of Justice, culminated in five rigorous criterion delivered by the Bronner judgment: (i) the dominant undertaking must have refused to supply; (ii) the product, service or infrastructure to which access is requested must be indispensable to allow competition in the downstream market; (iii) the refusal must be likely to result in the elimination of effective competition in said market; (iv) the refusal must be susceptible to cause harm to consumers, and (v) there must be no objective justification for the refusal to supply.[6]
These criteria aim, as far as possible, to not constitute a threat to fundamental rights, such as the right to property (Article 17 of the Charter of Fundamental Rights of the European Union) and to not impose a sharing obligation so burdensome that it becomes a hindrance to innovation, investment and market dynamism.[7]
2. Android Auto and the departure from Bronner
Before AndroidAuto, an alternative path, parallelled to Bronner, had begun taking shape, especially in the context of digital markets – or what can be denominated as “new economy”.[8] The European Commission’s decision in Google Search (AT.39740), followed by the General Court’s judgment in Google Shopping (T-612/17), can be interpreted as steppingstones in this development. When asked if the Bronner criteria applied to the case, the Court found that the facts and characteristics deviated from those in Bronner and, therefore, the presence of a refusal to supply did not, in itself, imply the application of the criteria.[9]
In some ways, this opened the door for what came to be AndroidAuto. The dispute dates back to 2018, when Enel X Italia, a company which had created an app to facilitate the locating and scheduling of charging stations for electrical vehicles, requested access to Android Auto, a Google-developed app that allowed users to connect mobile applications directly to a vehicle’s central display system. Confronted with a refusal by Google, Enel filed a complaint to the Italian Competition Authority (AGCM), which found that Google had abused its dominant position and fined the company. The case was then appealed before the Tribunale amministrativo regionale per il Lazio and later before the Consiglio di Stato, where a request for a preliminary ruling was submitted, grounded in the fact that the fined company considered that the Bronner criteria had not been correctly assessed.[10]
In this context, both Advocate General Medina’s opinion and the Court’s judgment followed the same line: Google’s refusal to allow interoperability between Juice Pass (Enel’s app) and Android Auto may constitute an abuse, even if the indispensability criterion is not met. This assessment depends on whether or not the attractiveness of the applicant undertaking in the downstream market benefits from the access granted.[11] Here, the same reasoning applied in Google Shopping is adopted, justifying the non-application of Bronner with the specific circumstances of the case – Android Auto, unlike the facility in question in Bronner, was not created exclusively for Google’s own and exclusive use. On the contrary, one of its main purposes is to be accessed by third party app developers, making it useless to apply the indispensability criterion, since there’s no need to preserve the freedom of contract or the right to property.[12]
This signifies a narrowing of the scope of application of the Bronner criteria, which now seems to only apply to dominant undertakings that develop facilities to mitigate their own needs and for their own internal use. A set of new criteria appear to be developed in Android Auto: (i) the indispensability requirement, as explained, is replaced by an attractiveness based criterion; (ii) the strictness of the elimination of all effective competition is relaxed, shedding greater light on the mere obstruction of competition, and (iii) the inexistence of a template that allows the interoperability is no longer seen as a sufficient objective justification.[13]
One question, however, trumped the final decision. Given that the specific circumstances of the case are a really important part of the final outcome, did the new set of requirements and the departure from Bronner apply exclusively to the new economy, namely digital platforms? Or would it cover all types of infrastructure, relegating Bronner to a secondary role that it had never played before in European competition law? This question arises because, although both the Advocate General’s opinion and the Court’s final decision specifically mention digital platforms, there is a general reference to facilities when proposing the new set of criteria.
3. The LUKOIL Bulgaria case
The LUKOIL Bulgaria case seems to answer these questions to some extent. The main issue here is the application of Bronner in response to a refusal to grant access to infrastructure belonging to a former state-owned monopoly that has since been privatised.[14] Essentially, two companies involved in the motor fuel storage market are concerned – LUKOIL Burgas (producer) and LUKOIL Bulgaria (distributor) – which had existed since privatisation and had invested substantially in the “undertakings at issue” (the port of Burgas, together with the Rosenets Terminal, were designated by decree as “strategic infrastructure”). This puts, as the competition authority came to agree, the LUKOIL group in a truly unique and advantageous position – it acts as the largest authorised storer and wholesaler of fuel and related products. In 2020, an obligation to grant access was imposed, which was disregarded until 31 March 2021 (the end of the infringement period, which began on 1 January 2016). During this period, the group chose to deny competitors access to its warehouses and pipeline network. The request for a preliminary ruling was made after LUKOIL challenged the decision of the Bulgarian National Competition Authority (NCA), which found that the group had infringed both Article 102 TFEU and Article 21(5) of the ZZK[15] (which prohibits the “unjustified refusal to supply goods or services”).[16]
Taking all of this into account, the Bulgarian NCA did, however, conclude that the Bronner doctrine did not apply to the circumstances of the case – primarily because the infrastructure was built on public funds and there was an access obligation in place. This raised doubts in the referring court, in particular with regard to the application of the Bronner test, asking, in its second question referred for a preliminary ruling, what criteria should be taken into account in the decision and whether the Bronner test should be excluded in all cases where public funding has played a role in the development of the infrastructure.[17]
Whether the Bronner criteria applies or not to the case at hand is for the referring court to decide. Nonetheless, AG Medina establishes a set of situations where the test is still suitable for application: when the dominant undertaking (i) autonomously exercises all decision-making powers over the facility, acquired through commercial transaction with third parties, by way of private financing; (ii) controls the facility acquired through privatisation, provided it does not benefit from statutory monopoly, or (iii) has autonomous decision-making rights over the facility derived from a concession contract, even without formal ownership. By contrast, Bronner does not apply in situations where certain provisions imposed by competent state authorities, be it through concession or privatisation contracts, limit the decision-making autonomy of the dominant undertaking.[18] In this light, the opinion reiterates that context plays a crucial part in this assessment[19] and highlights that the applicability of Bronner is significantly dependent on the autonomous control the undertaking exercises or not over the infrastructure.[20] This means that, if considered that LUKOIL has control over the infrastructures in question and if its decision-making autonomy is not gravely restricted,[21] then it could still be protected by the application of the Bronner test.
AG Medina, albeit tracing the continued relevance of the essential facilities doctrine, draws a distinction between the “old economy”, comprised of traditional infrastructures, and the “new economy”, which, as mentioned above, has already been subject to interpretation under the Bronner criteria in the Android Auto ruling. In paragraph 34, the Advocate General specifically mentions this decision, stating “The Court has also explained that the Bronner criteria (…) do not apply in relation to digital platforms, to situations where the dominant undertaking did not develop such a platform solely for the needs of its own business, but with a view to enabling third-party undertakings to use it”, singling out digital platforms once again and implicitly answering the question that arose with AndroidAuto regarding whether the Bronner test is fading in relevance to the digital economy or to all sectors in general.
Following this opinion, it seems that Bronner is still very much alive. The case of LUKOIL Bulgaria reaffirms that the standards consolidated in 1998 remain relevant for traditional and infrastructure-heavy sectors. At the same time, it provides an opportunity to further clarify the approach outlined in AndroidAuto, reflecting that as cases become increasingly complex and digital and traditional economies begin to overlap, context and specific circumstances are key to sensibly analysing future refusals to supply. Although some are becoming sceptical, a somewhat dual framework seems to be emerging that clearly reserves a distinct approach for the new economy while preserving another for the old economy.
[1] Opinion of Advocate General Medina, LUKOIL Bulgaria EOOD and LUKOIL Neftohim Burgas AD v. Komisia za zashtita na konkurentsiata, 10 July 2025, C-245/24, ECLI:EU:C:2025:570
[2] Judgment of the Court (Grand Chamber), Alphabet Inc., Google LLC, Google Italy SRL v. Autorità Garante della Concorrenza e del Mercato, 25 February 2025, C-233/23, ECLI:EU:C:2025:110
[3] First antitrust law approved by the U.S. Congress. It is a chart destined to preserve a free and unrestricted competition. In its first Section it declares as illegal “every contract, combination in the form of trust or otherwise conspiracy, in restraint to trade or commerce among the several States, or with foreign nations”. See “The Antritust Law”, Federal Trade Commission, https://www.ftc.gov/advice-guidance/competition-guidance/guide-antitrust-laws/antitrust-laws, accessed 16 July 2025.
[4] David M. Podell, “The evolution of the essential facilities doctrine and its application to the deregulation of the natural gas industry”, Tulsa Law Review, vol. 24, 4 (1989): 613-614.
[5] David M. Podell, “The evolution of the essential facilities doctrine and its application to the deregulation of the natural gas industry”, 617.
[6] Judgment of the Court (Sixth Chamber), Oscar Bronner GmbH & Co. KG and Mediaprint Zeitungs- und Zeitschriftenverlag GmbH & Co. KG, Mediaprint Zeitungsvertriebsgesellschaft mbH & Co. KG, Mediaprint Anzeigengesellschaft mbH & Co. KG, 26 November 1998, C-7/97, ECLI:EU:C:1998:569, para. 41.
[7] Paula Vaz Freire, “A obrigação de facultar acesso a recursos produtivos essenciais no direito da concorrência”, Revista da Faculdade de Direito da Universidade de Lisboa, XLIX, 1 and 2 (2008): 122-123. See, also, Opinion of Advocate General Medina, LUKOIL Bulgaria, C-245/24, paras. 29-30.
[8] The term “new economy” first appeared in the 90s when the Internet started to have a real impact on the market, creating new industries that rely on new technologies and make themselves the “driving force of economic growth and productivity”. See Will Kenton, “New economy: definition, history, and examples of companies”, Investopedia, 15 July 2024, https://www.investopedia.com/terms/n/neweconomy.asp, accessed 16 July 2025.
[9] Judgment of the General Court (Ninth Chamber), Google LLC and Alphabet Inc. v. European Commission, 10 November 2021, T-612/17, ECLI:EU:T:2021:743, paras. 229 and 230. This case was extremely important because, besides its implications for Bronner, it created a new type of abuse of dominance – self-preferencing. See “Google Shopping: self-preferencing can be abusive”, Stibbe, 2 October 2024, https://www.stibbe.com/publications-and-insights/google-shopping-self-preferencing-can-be-abusive, accessed 16 July 2025.
[10] Judgment of the Court, Alphabet and Others, C-233/23, paras. 4-23.
[11] Press Release No 19/25, Judgment of the Court in Case C-233/23, Alphabet and Others, Luxembourg, 25 February 2025, https://curia.europa.eu/jcms/upload/docs/application/pdf/2025-02/cp250019en.pdf, accessed 16 July 2025.
[12] Alphabet and Others, paras. 36-45.
[13] Alphabet and Others, paras. 52-87.
[14] Opinion of Advocate General Medina, LUKOIL Bulgaria, C-245/24, para. 1.
[15] Zakon za zashtita na konkurentsiata (Law of the Protection of the Competition).
[16] Opinion of Advocate General Medina, LUKOIL Bulgaria, C-245/24, paras. 2-16.
[17] Case C-245/24, LUKOIL Bulgaria and LUKOIL Neftohim Burgas: Request for preliminary ruling from the Administrativen sad Sofia-oblast (Bulgaria) lodged on 5 April 2024 – LUKOIL Bulgaria EOOD and LUKOIL Neftohim Burgas AD v. Komisia za zashtita na konkurentsiata.
[18] Opinion of Advocate General Medina, LUKOIL Bulgaria, C-245/24, para. 81.
[19] Opinion of Advocate General Medina, LUKOIL Bulgaria, para. 38.
[20] Opinion of Advocate General Medina, LUKOIL Bulgaria, paras. 62-68.
[21] Opinion of Advocate General Medina, LUKOIL Bulgaria, para. 79.
Picture credit: by Sora Shimazaki on pexels.com.