Bronner as threshold for all access requests?

The higher threshold under EU competition law for when dominant companies must give competitors access to their essential facilities or infrastructure was established by the Bronner judgment in late 1998. Even in February 2025, judgments from the CJEU and the highest Dutch administrative court, the Trade and Industry Appeals Tribunal (“CBb”), deal with the question of whether or not the Bronner-criteria would be applicable in situations where a company refused access or refused to supply data. Just when the CBb assessed the potentially harmful conduct in accordance with Bronner, the CJEU in Google Android Auto considered the Bronner-criteria inapplicable in relation to data access. This coincidence raised the questions of what the relevance of Bronner is in relation to access to digital infrastructures or platforms on the one hand, and digital data(sets) on the other.

The Dutch Perspective: Dataprovider/SIDN Case

On 18 February 2025, the CBb delivered a judgment in an appeal launched against a decision of the Dutch competition authority (“ACM”). Dataprovider B.V. filed a complaint with the ACM against the Dutch .nl-domain name manager SIDN for abusing its dominant position on the market for domain name registration ‘crawlers’. Dataprovider argued that SIDN abused its position by refusing access to the ‘complete’ list of .nl-zone file (i.e. the list of existing and publicly available .nl-domain names, as well as all requested domain names which are not publicly available). Additionally, Dataprovider contended that the use of the .nl-zone file by SIDN to offer competing domain monitoring services constituted self-preferencing under the Google Shopping judgment of the CJEU. The ACM dismissed the complaint because two of the so-called Bronner criteria were not met. The Rotterdam District Court upheld the ACM’s decision and Dataprovider took the case to the CBb for a final decision.

In the appeal, the CBb sided with the ACM. Like the District Court, the CBb dismissed the appeal to the Google Shopping judgment because the alleged abuse relates to refusal to grant access rather than bundling and tying or self-preferencing. The CBb did consider the Bronner-criteria the applicable framework for assessment because of SIDN's exclusive access to the complete domain name register, and its sole ability to grant third parties access to .nl-zone file. The CBb concluded that when applying the Bronner-criteria, access to the .nl-zone file was not indispensable for Dataprovider to compete with offering domain monitoring services. Nor did SIDN's refusal to grant access exclude competition by Dataprovider or any other providers of domain monitoring services from providing their services in the short term. The CBb considered this particularly relevant given the fact that .nl-domain names constitute only a minor part of the overall market for all domain names.

The EU Perspective: Google Android Auto Case 

Exactly one week after the CBb’s judgment, the CJEU answered preliminary questions in the Google Android Auto judgment. The questions from the highest Italian administrative court, most importantly, centered on the applicability of Bronner’s ‘indispensability’-criterion. In this case, the Italian competition authority imposed a €102 million fine on Google for refusing to make its 'Android Auto' system interoperable with Enel X's app (which provides functions for charging electric vehicles). The Italian competition authority considered this to be a refusal to provide access that harms competition in violation of Article 102 TFEU. 

The CJEU first clearly distinguished different situations in which Bronner would and would not be applicable by defining a preliminary question relating to the purpose of the relevant infrastructure. Before applying the Bronner-criteria to a refusal of access to infrastructure by a dominant company, a court will have to establish whether that infrastructure (i) was developed by the undertaking in a dominant position solely for the needs of its own business and (ii) is owned by that undertaking in a dominant position or whether, on the contrary, that infrastructure was developed in order to enable third-party undertakings to use it, which is evidenced by the fact that that undertaking in a dominant position has already granted such access to such third-party undertakings. The CJEU ruled that the Bronner-criteria are not applicable if the (digital) infrastructure is developed by the dominant party with a view to enabling third-party undertakings to use the infrastructure. The rationale behind the CJEU’s distinction is that the dominant undertaking bore the expense and made investment into the infrastructure also for the ‘potential use’ of the infrastructure by the third party. In that case, which applied in Google’s 'Android Auto' scenario, requiring the undertaking to provide access to third parties does not fundamentally change the economic model underlying the development of the infrastructure, and therefore the Bronner test does not apply. As a result, the refusal can amount to abuse of dominance, regardless of whether the access is indispensable to compete with the (dominant) owner of the infrastructure but it is capable of generating benefits for consumers.

Alternative Assessment Framework

For such situations in which Bronner does not apply, the CJEU has set out alternative criteria to assess whether the refusal by the undertaking that developed and owns the platform could constitute an abuse of a dominant position:

1. The refusal has the actual or potential effect (i.e. there needs to be tangible evidence that the practice is capable of producing such effects, see Servizio and Unilever Italia) of excluding, obstructing or delaying the development on the market of a good or service which does, or potentially can, compete with the product or service offered by the dominant undertaking, resulting in potential harm to consumers.
2. The dominant company is not able to objectively justify interoperability and access to its digital infrastructure or platform.

Defining Bronner's Boundaries 

While there has been debate among practitioners regarding the continued practical relevance of Bronner, the Google Android Auto judgment demonstrates that the CJEU merely provided further clarification on the relevance of the type or purpose of the infrastructure for the applicability of the Bronner-criteria. 

When considering the Dataprovider/SIDN and Google Android Auto judgments, as well as previous case law regarding similar abuses, whether refusal to grant access constitutes abusive conduct should still be assessed under the Bronner-criteria if:

• The infrastructure does not belong to the dominant undertaking itself but to its partners, while the undertaking is in a position, jointly with its partners, to control access to the infrastructure (Alstoff Recycling Austria);
• The infrastructure is indispensable and the dominant user of the infrastructure is not the owner of that infrastructure, but does have exclusive rights or usage that take the form of a situation of control over the infrastructure (Bulgarian Energy Holding);
• The refusal of the authorisation to transform artistic expressions protected by exclusive artistic rights into products by the holder of the exclusive artistic rights do not appear to exclude competition in the market (Gala Salvador Dali, decision by the Spanish competition authority (CNMC) of 21 February 2024);
• The dominant undertaking is the only one able to provide access to data and is the exclusive manager of that data set (Dataprovider/SIDN); or 
• The infrastructure is solely developed by the dominant undertaking for its own use (not for third party access) and the undertaking owns the infrastructure (Google Android Auto).

When Bronner Does Not Apply

Conversely, the case law also indicates when Bronner is not applicable. This is the case where access can only be provided conditionally (AAMS/Commission), where assets are not retained for the entity's own use, but are voluntarily transferred to independent undertakings which pay for using them (Van den Bergh), if the undertaking supplies on disadvantageous, non-realistic or unfair conditions (TeliaSonera, Telefonica and Slovak Telecom), where the infrastructure is ‘sacrificed’ for example by destroying it and thereby preventing anyone from using the infrastructure, or if the infrastructure is not owned by the undertaking and is financed by public means (Latvian Railways), where there are no refusals but discriminating positioning and presentation (Google Shopping) or in case the infrastructure is developed to possibly be used by third parties and there is no objective justification for the refusal (Google Android Auto). Lastly, a Czech Regional Court decided in the CHAPS/Seznam.cz-case (2023) that the Bronner-criteria were not applicable, mainly because CHAPS did not own the data that Seznam.cz requested access to; CHAPS was obliged by the State to provide access on reasonable conditions and the infrastructure was not created nor paid by CHAPS. 

Conclusion and Implications

The application of the Bronner doctrine is therefore not cast aside as such, given the most recent cases at the EU level, such as Bulgarian Energy Holding and in the Dutch Dataprovider/SIDN case. 

The high threshold of the Bronner-criteria is no longer an easy defence for any refusal to grant access, as Google Android Auto provides a framework for competition authorities to qualify refusals as a separate abuse of a dominant position if infrastructure is used for access to others. If and how this relates to the interoperability obligations under the Digital Markets Act remains to be seen, just like what the Italian administrative court will decide in its final say about the Google Android Auto case. In any event, undertakings requesting access, or having access requested of them, to data or digital platforms, should carefully consider refusals and the conditions imposed on third parties requesting access to data, platforms or other infrastructures, taking into account not only the Bronner-criteria but also the preceding question of whether Bronner is applicable in the relevant scenario. 

If you need more information or further guidance in this area, please contact Pauline Kuipers and Quirijn Mohr.

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