Interoperability in the EU: A Judgment Opens the Door

Despite a concerted campaign by the Trump Administration to threaten and pressure Europe to drop its efforts to regulate tech platforms, EU leaders have defended their regulations. On March 7, 2025, a letter from European Commission Executive Vice Presidents Teresa Ribera and Henna Virkkunen to Jim Jordan of the US Congress’ Judiciary Committee outlined the objectives of the Digital Markets Act (DMA), making clear that the primary objective of the law was compliance and not the issuance of fines and reaffirming the EU’s commitment to enforcement. Following this exchange, EU parliamentarians reinforced these points during a visit to Washington, DC. Anna Cavazzini MEP reported that she assured Jim Jordan that the DMA was “neither targeting US companies nor restricting market access.” The delegation’s visit aimed to clarify the law’s purpose and ensure “a better understanding of the DMA.”

These tensions between the Trump Administration and the European Commission are occurring against the backdrop of an increasingly active year for EU competition enforcement. Key developments included the latest DMA compliance reports from gatekeepers and the Commission conducting ongoing consultations for its much-anticipated guidelines on exclusionary abuses of dominance (Article 102 TFEU). During the public consultation, ARTICLE 19 led a joint response on behalf of a group of civil society organizations. In addition, in mid-February, the Commission hosted a day-long workshop in Brussels to “gather views on different key aspects of the draft Guidelines and discuss the practical implications of their application.” Professor Giorgio Monti at Tilburg University provided some useful insights from the day-long event in the ‘D’Kart’ antitrust blog.

Yet, a recent decision by the Court of Justice (CoJ) may ultimately carry more weight than the forthcoming guidelines on exclusionary abuses of dominance.

The COJ Rules against Google for Refusing to Interoperate

At the end of February, the COJ upheld a judgment by the Italian Competition and Markets Authority (AGCM), which had imposed a fine of over 100 million Euros on Google for abuse of dominance. Google disputed that decision before Italy’s Council of State, which referred the matter to the COJ for a preliminary ruling. As outlined in the CoJ’s press release, the case concerns “a refusal by an undertaking in a dominant position to ensure that its platform is interoperable with an app of another undertaking, which thereby becomes more attractive, can be abusive.” In short, Google refused to ensure that its dominant platform was interoperable with an app from another company—an action that can be considered abusive.

In this case, Google refused to grant access to its Android Auto platform to ‘JuicePass,’ an EV-charging app owned by Italian multinational Enel. Android Auto is a mobile app that mirrors the experience of using an Android device on a car’s dashboard information and entertainment unit, allowing Google’s own apps, Google Maps, and Waze to interoperate. JuicePass helps drivers of electric cars locate a charging station and then be able to book a slot in advance while driving.

Google first rejected Enel X’s (a division within Enel) application in September 2018, stating that, in the absence of a specific template, media and messaging apps were the only third-party apps compatible with Android Auto. When Enel X reapplied in December 2018, Google then cited security concerns and the need to allocate resources to develop a new template as reasons for the continued refusal. In response, Enel X submitted a complaint to the AGCM alleging that Google’s conduct violated Article 102 TFEU. The AGCM reached a decision in April 2021 that Google’s behaviour constituted an abuse of its dominant position and, importantly, determined that Android Auto is an indispensable product for developers creating apps for drivers.

The COJ’s Rules in Favor of Enel and Dismisses the Bronner Doctrine

The CoJ upheld the AGCM’s view that a company’s behavior can still be abusive even when the platform itself is “not indispensable to the commercial operation of the app.” This applied to JuicePass, which continued growing its market share despite not being integrated into the Android Auto system.

This finding is important because it now allows EU judges, as pointed out by commentator Lewis Crofts, to “set out the legal test for when digital giants are obliged to open up their services– such as operating systems, digital platforms or devices.” As a result, the ruling dismisses the relevance of the so-called Bronner doctrine, which originated from a 1998 ruling in a case by the same name. One of the key criteria in the Bronner ‘test’ states that dominant companies can be required to open up their infrastructure to third parties when it is considered “indispensable” for their rivals to do business.

In her opinion, Advocate General Medina agreed with the AGCM decision to dispense the Bronner conditions in this case. The CoJ followed this reasoning in its judgment. Medina noted that while Google did not directly invoke Bronner in its defence, it did invoke a Microsoft judgment (Microsoft v. Commission, 2007), which, in Medina’s words:

“… concerned a case in relation to the compulsory licensing of intellectual property rights, which, similarly to physical property, presents tensions which are relatively equivalent, in terms of interests and incentives, to those described in relation to the judgment in Bronner. Therefore, even assuming that the case giving rise to the judgment in Microsoft could be seen, from a general perspective, as an illustration concerning a refusal to grant access to a digital infrastructure, the fact remains that the operating system at issue in that case did not have as its main aim to be freely available to other software developers, which is the main difference with respect to a platform such as that at issue here.”

The final sentence above is a key part of AG Medina’s reasoning when deciding that Bronner should not be applied to this case. It is clear that Google intended for its Android App to be interoperable with apps beyond its own. As paragraph 8 of her opinion states:

“In order to ensure the interoperability of each app with Android Auto, avoiding for that purpose lengthy and costly individual tests, Google offers solutions for entire categories of apps in the form of templates. Those temples permit third-party developers to create versions of their own apps that are compatible with Android Auto. In late 2018, templates were available only for media and messaging apps, Google has also developed compatible versions of its own map and navigation apps – namely, Google Maps and Waze – and has allowed, in certain cases, personalised apps to be developed without there being a predefined template.”

Medina also refers to several cases clarifying that the Bronner conditions can only be applied in specific circumstances. She cited the Baltic Rail case (2023, paragraph 80), where the judgment states:

“...without ambiguity that Bronner conditions apply only to cases where the infrastructure at issue has been developed for the needs of the dominant undertaking’s own business and where that infrastructure is dedicated for its own use, to the exclusion of any other competitor.”

The CoJ’s ruling frequently cited Medina’s arguments, following similar reasoning on why Bronner should not apply in the case.

Implications Going Forward

Medina emphasized early in her opinion:

“it is important to bear in mind that this case will be decided in the aftermath of the entry into force of the Digital Markets Act (DMA), which inevitably raises the question, quite common in the legal domain, of whether interoperability would be more legitimately addressed by legislative means instead of by way of sanctions grounded on the competition law provisions of the Treaty, as Google reiteratively submits.”

Commentators and academics alike have observed the significance of this case, although opinions are divided to an extent. While this analysis focuses more on the ‘indispensability’ aspect of Bronner, the significance of the judgment regarding the template component cannot be overstated. The CoJ also sided with Medina and the AGCM, ruling that the absence of a template ensuring interoperability with the requesting party, or the challenges in developing such a template, does not, in itself, justify a refusal of access.

With this ruling, tech companies now have to tread carefully when denying access to their open platforms, particularly because they cannot rely on the Bronner defense. Platforms will have to change their behavior with the now broader view of abuse (‘attractive’ rather than ‘indispensable'). This notion of ‘attractiveness’ as opposed to ‘indispensability’ is significant and can be said to reflect a competition policy that brings us closer to the goals of the DMA’s goals of ‘ensuring fair and open markets.' In the case of the DMA, “the markets remain open to new entrants despite the presence of a platform with gatekeeper power.”

The decision by AGCM and the upholding by the CoJ signals a shift from testing ‘indispensability’ to ‘testing attractiveness’. While the JuicePass app could have continued to exist and even grow its presence without access to the Android Auto, courts can now argue that having access makes the app a more ‘attractive’ place to be and a likely boost to business, even as not having access could still be existential to the fate of your business.

As a free speech organisation, we have focused on pro-competitive solutions to diminish the power of the gatekeepers. Genuine interoperability is an efficient way to achieve contestability and choice for users, businesses, or otherwise on markets that are, as in this case, subject to high barriers. More importantly, it is decisions like these that demonstrate the COJ’s willingness to consider the different dynamics of digital markets, and where Bronner as a precedent to rely on is deemed no longer appropriate. Smaller businesses will now hopefully feel empowered to innovate.

Although ‘auto-apps’ such as Android Auto have not yet been designated as core platform services under the DMA, and so would not have to comply fully with Article 6(7) on interoperability obligations, our view is that the ruling will likely influence broader regulator thinking. It potentially sets a precedent for those companies that design their operating platforms to appear open to other providers, to ensure their openness is meaningful.