Background
On December 18, 2025, the Court of Justice delivered its preliminary ruling in a case concerning an appeal by Lukoil against a Bulgarian competition authority decision which had imposed a fine on Lukoil for its refusal to grant access to third parties to essential infrastructure (fuel storage facilities, port terminals, and pipeline networks), originally constructed with public funds and subsequently privatized by Lukoil.[1]
The Court of Justice found that the Bronner essential facility doctrine criteria are applicable to former state-owned facilities that have subsequently been privatized, as long as the undertaking refusing to grant access (i) paid a competitive price when it acquired the facilities and (ii) has decision-making autonomy over the facilities.
Prior case law on access refusal
The Bronner criteria originate from the 1998 judgment in Oscar Bronner v. Mediaprint,[2] which established a stringent test for determining when a dominant undertaking’s refusal to grant access to an essential facility constitutes an abuse under Article 102 TFEU. The Court of Justice held that a refusal to supply is abusive only where (i) the facility is indispensable for competing in a related market (meaning there are no actual or potential substitutes); (ii) the refusal is likely to eliminate all competition in that market; and (iii) there is no objective justification for the refusal. Subsequent judgments substantially narrowed the scope of this test.[3]
The Court of Justice’s recent Android Auto judgment[4] marks a substantial departure from the traditional Bronner framework for digital platforms that are designed to enable third-party use. Rather than requiring indispensability, it suffices that access refusal hinders a competitor’s growth or makes its business less attractive to consumers. This reflects the Court of Justice’s acknowledgment that the stringent indispensability criterion may be ill-suited to protect competition in digital markets characterized by network effects.
The applicability of the Bronner test to Lukoil
The Court of Justice confirmed the applicability of the Bronner criteria to formerly state-owned and subsequently privatized facilities, where the infrastructure was originally developed by the state and was later acquired and upgraded by a private undertaking.
The Court of Justice first recalled a general principle that any undertaking has the right to choose its trading partners and to dispose freely of its property. The Bronner criteria established a high threshold for finding that access refusal violates Article 102 TFEU[5] because an obligation to allow third-party access to facilities may undermine investment incentives and encourage competitors to free-ride rather than invest in their own infrastructure. The Bronner criteria aim to strike a balance between undistorted competition and freedom of contract.[6]
The Court of Justice repeated its language in the Android Auto judgment, stating that an undertaking “in a dominant position” must continue to “have an incentive to invest in developing high-quality products or services, in the interest of consumers” which justifies applying the Bronner conditions where that undertaking (i) has developed the infrastructure for the needs of its own business and (ii) moreover, owns that infrastructure.[7] In Android Auto, the Court of Justice found that Android Auto was not developed by Google solely for the needs of its own business, because access to that digital platform was open to third parties, so the Bronner indispensability condition did not apply “for the purpose of examining whether the refusal, by an undertaking which has developed a digital platform, to allow access to that platform by a third-party undertaking which has developed an app, by ensuring that platform is interoperable with that app, constitutes an abuse of a dominant position within the meaning of Article 102 TFEU”.[8]
In the present Lukoil judgment, however, the Court of Justice considered that even if the infrastructure was previously developed and owned by the state (not by the dominant undertaking), that does not automatically exclude the applicability of the Bronner criteria if two conditions are met:[9]
- The undertaking acquired the facility at a competitive price. The infrastructure must not necessarily be constructed by the undertaking itself—the use of the term “developed” (stemming from Android Auto) may also mean “acquired with the aim of fitting it into the undertaking’s business strategy”.[10] However, the privatization process of a former state-owned facility must have taken place with competitive price conditions.[11]
- The undertaking must have decision-making autonomy over the facility. While an equivalent degree of control (instead of ownership as set out in Android Auto) can suffice, the Bronner criteria do not apply where decision-making autonomy is “limited by prerogatives or obligations, imposed by legislation, regulations or contracts, which prohibit that undertaking from refusing third parties access to that infrastructure”.[12] In other words, the Bronner criteria apply where there is no regulatory or legislative condition preventing the undertaking from allowing third-party access to its facilities.
Takeaways
The Android Auto judgment limited the application of the Bronner indispensability requirement to digital platforms that were developed with a view to enabling third-party use, meaning access refusals can be abusive even where the platform is not strictly indispensable.[13] By contrast, the Lukoil judgment expands the protection afforded by the Bronner test compared to previous case-law, clarifying that former state-owned infrastructure can still benefit from Bronner’s full protection (including the indispensability requirement) where the dominant undertaking acquired the facility with the aim of fitting it into its business strategy and retains genuine decision-making autonomy.
This represents a divergence in the Court’s approach: while Android Auto narrows Bronner protection for platforms designed for multi-party use, Lukoil preserves Bronner protection for traditional infrastructure with state origin, even if it was developed with multi-party use in mind, thus creating a divide between digital platforms and physical infrastructure in terms of access obligations.
[1] Lukoil Bulgaria EOOD and Lukoil Neftohim Burgas AD v. Commission for Protection of Competition (Case C-245/24) EU:C:2025:987 (“Lukoil”).
[2] Oscar Bronner v. Mediaprint (Case C-7/97) EU:C:1998:475.
[3] In particular: IMS Health v. NDC Health (Case C-418/01) EU:C:2004:257; Microsoft v. Communities (Case T-201/04) EU:T:2007:289M; Slovak Telekom v. Commission (Case C-165/19 P) EU:C:2021:239; and Lietuvos geležinkeliai AB v. Commission (Case C-42/21 P) EU:C:2023:12.
[4] Alphabet v. Autorità Garante della Concorrenza e del Mercato (Case C-233/23) EU:C:2025:110 (“Android Auto”).
[5] Lukoil, paras. 45–47.
[6] Lukoil, para. 48; with reference to Deutsche Telekom v. Commission (Case C‑152/19 P) EU:C:2021:238, para. 47, and Slovak Telekom v. Commission (Case C‑165/19 P), EU:C:2021:239, para. 47.
[7] Lukoil, para. 49, referencing Android Auto, para. 43.
[8] Android Auto, para. 49.
[9] Opinion AG Medina in Lukoil, para. 49.
[10] Lukoil, para. 55; Opinion AG Medina in Lukoil, para. 45.
[11] Lukoil, para. 55.
[12] Lukoil, paras. 50, 51, and 56.
[13] Android Auto, para. 43.