Chillin'Competition

The Court of Justice delivered yesterday its much awaited judgment in Android Auto, which I followed from the early stages (see here for a comment of the AGCM’s decision from four years ago). It exemplifies, better than any other, the uncertain future of the Magill/IMS Health and Bronner doctrines in the current economic and technological landscape.

Android Auto could have a very substantial impact on the relevance and scope of these two doctrines (far more substantial than Google Shopping, for instance). I write ‘could’ for the simple reason that the meaning of the judgment is only likely to be fully teased out following subsequent references to the Court.

Before addressing substantive matters strictly speaking, it makes sense to start by focusing on an issue that is potentially of interest to EU lawyers at large (and arguably the most intriguing in this particular case).

Yesterday’s judgment deals extensively with the conditions under which the Bronner doctrine is applicable. However, Bronner is not even cited in the original AGCM decision. The authority’s analysis was based on Magill and IMS Health instead (which is a similar, but not identical, doctrine).

More importantly (and unlike Google Shopping), the dispute at the national level was never about whether the Magill/IMS Health (or indeed Bronner) conditions were applicable in the circumstances of the case.

It revolved, instead, around the interpretation, by the AGCM, of the Magill/IMS Health doctrine, which was deemed to provide the appropriate analytical framework to evaluate the abusive nature of the practice. The AGCM’s choice of legal test was unsurprising. It was, after all, an outright, plain-vanilla refusal to deal.

One could argue, on the other hand, that the AGCM’s interpretation of Magill/IMS Health was somewhat unorthodox. It was therefore reasonable (and to be expected) for the Consiglio di Stato to refer a number of questions to the Court of Justice.

To begin with, it was unclear, in light of the available facts, whether access to Android Auto was indispensable within the meaning of IMS Health (this ruling provides, in paragraph 28, the canonical definition of the condition). Enel’s app had in fact been launched and was offered to end consumers even though it did not have access to the said platform (see paras 8 and 9 of the Court’s judgment in Android Auto).

The first and the second questions referred by the Consiglio di Stato addressed this issue. One of the questions related to the very meaning of the condition (does indispensability mean indispensability or does it mean convenience instead?). The other focused on the fact that Enel’s app and, indeed, rival apps had been offered to end users even though they were not accessible via Android Auto, thereby suggesting that the demanding threshold set in Magill and IMS Health had not been met.

The judgment in Android Auto does not interpret the indispensability condition. The Court, instead, reformulated the questions asked by the Consiglio di Stato (see para 33) and examined, following this exercise, whether the Bronner doctrine was applicable in the context of the case.

The reformulated question (para 36) was whether Article 102 TFEU can apply to a refusal to deal in the circumstances of the case (that is, one involving access to a digital platform) and this even though the platform in question is not indispensable but can make a product more attractive to consumers.

It is on the basis of this new question that the Court provided its interpretation of Article 102 TFEU. I will discuss the substantive aspects of the ruling (and how it potentially entails a shift in some points of law that had remained unaltered since Magill) in the next instalments.

For the time being, the fact that the dispute in Android Auto was transformed (from a case about the interpretation of Magill/IMS Health to one about the applicability of Bronner) raises a number of issues that are worth discussing.

Android Auto shows, first, the extent to which the substantive and institutional aspects of a legal discipline are intertwined. This is one of the overarching themes of my research. I have come to realise, over and over, that institutions often influence (if not shape) substance. This judgment is one on which I will rely in the future to illustrate this interaction.

A second point relates to EU law: it is fascinating that disputes coexist at various levels and that the EU incarnation of a case sometimes acquires a life of its own. As soon as new actors become involved in the dispute and provide their perspective, the discussion before the Court can drift apart from the national one and end up in a different place.

As a result, third, the judgment may be more consequential for disputes other than the one at stake in Android Auto. By focusing on the applicability of Bronner instead of the interpretation of Magill/IMS Health, the judgment may not necessarily shed much light on the specifics of the case. On the other hand, it is very likely to pave the way for intervention in other disputes relating to digital platforms.