Reinforcement of interoperability obligations under the bonus of abuse of a dominant position

In a judgment of 25 February 2025, the Court of Justice of the European Union was asked whether the refusal by an undertaking in a dominant position to ensure interoperability between its platform and an application of a third party undertaking may constitute an abuse of a dominant position. 

Prior to this, the Digital Markets Act of 14 September 2022 defines interoperability as “the ability to exchange information and to mutually use information exchanged through interfaces or other solutions, such that all elements of hardware or software operate in all ways that they are intended to operate with other hardware and software as well as with users”. 
Refusal of interoperability by the Google Group for an application of a third party company In this case, the Google group launched, in 2015, Android Auto, a platform that allows users of Android mobile devices to have access, on the screen of a vehicle, to the applications present on the device. In May 2018, Enel Group launched the JuicePass app, which would offer a range of features for charging electric motor vehicles. In particular, it would allow its users to search for and book charging stations on a map, transfer the search to the Google Maps app to allow navigation to the selected charging station, and launch, interrupt and monitor the charging session as well as the corresponding payment. 

In September 2018, the Enel group asked Google to take the necessary actions to ensure the interoperability of JuicePass with Android Auto, which Google refused, on the grounds that multimedia and messaging applications would be the only third-party business applications interoperable with Android Auto. 

Given GOOGLE’s refusal, legal action was then brought by the Enel group which considered that Google’s refusal constituted a violation of Article 102 TFEU prohibiting the abuse of a dominant position, which led to several questions being referred to the Court of Justice of the European Union (CJEU) for a preliminary ruling. 

In this case, the CJEU was asked in particular whether, for the purposes of Article 102 TFEU, the refusal by a dominant company to ensure interoperability between its platform and an application of a third party company, which would be likely to be more attractive to consumers thanks to the platform, could constitute an abuse of a dominant position, even if this platform would not be essential to the exercise of the economic activity of the access seeker. 

Position of the CJEU: the refusal of interoperability may constitute an abuse of dominant position  

To this question, the CJEU answers in the affirmative by considering that the abuse of a dominant position is characterized even if the platform is not essential for the commercial exploitation of the access requester’s application.Thus, Article 102 TFEU must be interpreted as meaning that “the refusal, by a company in a dominant position having developed a digital platform, to ensure, at the request of a third party company, the interoperability of this platform with an application developed by this third party company is likely to constitute an abuse of a dominant position, even though the said platform is not essential for the commercial exploitation of the said application in a downstream market, but is likely to make the same application more attractive to consumers, when the  same platform has not been developed by the company in a dominant position for the sole purpose of its own activity“ 

A judgment in connection with the requirements of the Digital Markets Act 

This judgment of the Court, although it is not based on the Digital Markets Act Regulation, still seems to be apprehended in a demanding context with regard to access controllers who must comply with the interoperability obligations provided for in Article 6 (7) thereof, since 6 March 2024. 

References: CJEU, judgment of 25 February 2025 – C-233/23