Clifford Chance

On September 5, Advocate General ("AG") Laila Medina issued her opinion in an Alphabet/Google ("Google") case before the Court of Justice ("CJEU") by way of preliminary ruling request concerning litigation about the Italian competition authority's 2023 Android Auto decision. Bottom line: AG Medina proposes that the CJEU rule that limiting access of apps to a dominant platform conceived to be open to apps can be an abuse, without having to show that the existing EU case law criteria of a "refusal of access" abuse (such as indispensability and likelihood of elimination of all competition) are met. That position, if adopted by the Court, could make it easier for authorities to bring cases against digital platforms (including but not limited to Google) for inhibiting access to the platform, to the benefit of independent app providers. Separately, the CJEU also ruled on September 10 in another Google case before the CJEU (Google Shopping).

The Italian court making the referral to the CJEU raised questions about the criteria developed in EU case law on the refusal to supply abuse under Article 102 TFEU. The questions the Italian court originally put to the CJEU are formulated rather broadly and include (in summary):

1. Whether indispensability of access implies technical necessity or whether consumer convenience can suffice?
2. Whether continued success of the app developer requesting access despite lack of access negates a finding of foreclosure?
3. Whether it is relevant that what is refused does not yet exist?
4. Whether by way of remedy a software provider can be required to "modify its product or develop new ones" to accommodate the product of a competitor?
   
   This question if answered affirmatively as phrased by the Italian Court could be intrusive in a far-reaching way for the software industry. However, it should be understood in the context of what Google refused to supply (and what complainant app provider Enel needed for its app to gain access to Android Auto), namely a template to develop EV charging apps for Android Auto. This template is effectively equivalent to interoperability information as Google requires its use for Android Auto apps to standardise and safeguard the user experience. The obligation on Google to provide a suitable template is arguably more akin to the requirement on Microsoft in the EU Microsoft case to create documentation of its APIs, than one that would require true product changes, let alone the creation of a new version of Android Auto.
   
   As part of its fourth question, the Italian court also asks whether the existence of an obligation to develop would mean that the dominant firm has to lay down objective criteria for ranking the priority of third-party requests.
5.  And finally: Whether it is necessary to define a market on which the conduct produces effects?

The Italian Authority's underlying Android Auto decision against Google refers to the criteria in the EU General Court's judgment in Microsoft, and the referring Court pointed to the CJEU's Bronner, but AG Medina argues that neither are applicable: Bronner, because unlike Android, it concerned infrastructure (a newspaper delivery network) intended for the dominant company's own exclusive use, and Microsoft, because its Windows Server platform was not a platform designed to be freely available to third party servers (even if one could view parallels in Microsoft's refusal to supply workgroup server interoperability information as a means of preventing access of third parties to Microsoft networks).

Instead, AG Medina argues that an abuse arises where a dominant player provides a platform that is "conceived and designed to be nourished by apps" limits a third party's app's access, where that behaviour gives rise to anticompetitive effects to the detriment of consumers and cannot be objectively justified. That description of the abuse sets a much lower bar than either Bronner or Microsoft imposes.

AG Medina's proposed answers to the preliminary questions rightly do not go as far as their general wording as put to the Court might have invited, in terms of imposing broad positive obligations on dominant firms to develop software for third parties, or severely relaxing established refusal to supply criteria. But in proposing to set these criteria aside in relation to platforms for apps, the AG does set forth a different framework that could have significant implications for third party app providers and platform providers alike. According to AG Medina,

1. It is not necessary to show indispensability to establish an abuse of platform access limitation because the Bronner and Microsoft case law does not apply;
2. The fact that a developer requesting access is continuing to thrive despite the denial of access is not fatal to a finding of abuse. The relevant (modest) standard of effects is whether the conduct is "capable of hindering the maintenance or development of competition, taking into account all the relevant circumstances of the case and irrespective of whether those restrictive effects actually occurred";
3. As to the claim that what is to be supplied does not yet exist, the limitation of access is (only) objectively justified where "the access requested is technically impossible or where it could affect, from a technical perspective, the performance of the platform or run counter to its economic model or purpose." What "economic model or purpose" means is not so clear from the opinion, but one could question whether that is truly an objective justification and reconcilable with objective justifications rejected in other cases. AG Medina also proposes that the mere fact of having to develop a software template "taking into account the specific needs of the operator requesting access cannot in itself justify a refusal of access, provided that an appropriate time frame is allowed for that development and that that development is subject to appropriate consideration in favour of the dominant undertaking. Both elements must be communicated by the dominant undertaking to the operator requesting access upon its request." AG Medina seems to suggest that individual app developers can demand that a template be provided to suit specific features of their products as long as they offer to pay for them, which could prove very onerous for platform providers, even if the provider can request payment. At the same time, to the extent that the approach of the Opinion would effectively result in requiring a third party developer's offer of payment of development costs related to third party access to the platform, it does seem to suggest a basis for unwarranted delay and disputes.
4. The dominant platform provider is not required to draw up pre-existing objective criteria to examine requests for access to the platform, unless and until multiple simultaneous requests are received, in which case the absence of these criteria could be taken into account in determining whether any delay is excessive or discriminatory.
5. A competition authority does not have to define the market on which effects occur exhaustively, and only needs to show that the conduct is capable of having anticompetitive effects on products that compete with products of the dominant provider.

AG Medina's framing of Google's abuse relying on a distinct set of criteria might ultimately be more appropriate than the existing refusal to supply law on which the Italian competition authority relied, whether or not for the reasons AG Medina highlights, given the seemingly distinct facts. Google arguably did not refuse access to the Enel app in a traditional sense: Enel was admitted to the Android app store but could not make use of Android Auto because Android Auto was at the time of Enel's request only set up to support certain types of apps in-car, which did not include EV charging station apps. However, Google's control as platform provider over which third party applications and which features are supported means that it can limit technical development, distort the competitive process and harm competition and consumers. A novel type of "platform support abuse" might be appropriate to confront the competition concerns arising from the influence that digital platform gatekeepers can exert over third party apps and the competitive process. Such an abuse would need to be appropriately circumscribed to ensuring interoperability with and ability to use the platform, however, and avoid imposing unreasonably onerous obligations on digital platforms to redesign their products to fit the needs of third party developers. An obligation on the platform provider to support every feature a third party developer comes up with as AG Medina suggests could ultimately hurt competition among platforms.

It remains to be seen how much AG Medina will influence the CJEU's judgment on the questions, which typically is issued four to eight months following the Opinion. Given the departure of the Opinion from the reliance on existing refusal to supply case law in the underlying Italian decision and the Court's questions, it is by no means certain that the CJEU will follow the Opinion.

Background to the Opinion: The Italian competition authority had found that Google committed an abuse of dominance by not allowing Italian electricity provider Enel's electric vehicle (EV) charging station locator and booking app on the Android Auto platform, to the benefit of Google Maps. The Italian Authority considered Google's refusal to allow the version of the app Enel developed, and refusal to provide a template for developing a version of the app that would be allowed constituted an abusive refusal to supply in accordance with the 2007 General Court Microsoft judgment criteria, based on Google Android's dominance as a licensable mobile operating system. Google appealed the Decision twice leading the second Italian appeals court to ask the CJEU for a ruling on the interpretation of EU law on refusal to supply.