Chillin'Competition

The Court of Justice delivered its judgment in Lukoil as 2025 was coming to an end. It was the second case in the year that engaged head on with the conditions set out in Magill and Bronner.

It may be true that this judgment is not as consequential as the one in Android Auto for the present and future of the refusal to deal doctrines. This said, Lukoil marks a subtle but clear move away from the traditional rationale underpinning the application of these doctrines.

What makes the legal development even more interesting is that it appears to expand the scope of application of Magill and Bronner, where as Android Auto decisively reduced their scope.

Traditionally (and as recently as 2021, when the Court ruled in Slovak Telekom), the Magill and Bronner doctrines were justified on two grounds. Compelling a firm to deal with third parties interferes with fundamental rights and must therefore be confined to exceptional circumstances. What is more, it can be expected to negatively affect the undertaking’s incentives to invest and innovate.

This original rationale no longer reflects the reality of the case law. In Android Auto, the Court held that requiring a firm to deal with third parties with which it has chosen not to deal is not necessarily confined to the refusal to deal doctrines. Magill and Bronner will only be relevant, moving forward, when compelling the sharing of an asset would ‘fundamentally alter‘ the dominant undertaking’s ‘economic model‘.

Accordingly, a firm running a partially open platform can no longer invoke the refusal to deal doctrines by virtue of the fact that it has chosen to open other markets, not necessarily concerned by the dispute, to third parties.

Lukoil raises a different set of issues. One of the questions asked by the Bulgarian Administrativen sad Sofia-oblast was, in essence, whether the refusal to deal doctrines are applicable where the development of the infrastructure has been supported by means of State aid.

The answer would be clear if one were to look at the traditional rationale behind Magill and Bronner. Where State aid is involved in the roll-out of the infrastructure, the traditional concerns with firms’ incentives to invest and innovate are not present.

The award of public funding is an alternative, and mutually exclusive, approach to deal with the incentive-related issues. To the extent that it is, one could reasonably claim that public funding rules out, by definition, the application of Magill and Bronner.

One could, in fact, go further and argue that the award of State aid does not just exclude the application of the refusal to deal doctrines, but that it requires that the subsidised infrastructure be shared with third parties.

This is, after all, the (very reasonable) position taken by the European Commission in its Guidelines on State aid for broadband networks, where it holds that ‘[e]ffective wholesale access for third parties to the funded networks is an indispensable condition of any State aid measure‘.

The Court of Justice, however, did not follow the logic of the traditional case law. According to the judgment, the applicability of Magill and Bronner does not hinge on whether the infrastructure was built with public support, but whether the owner of the infrastructure acquired it ‘at a price and under conditions resulting from a competitive procedure‘.

As a result of this choice, a dominant firm controlling an asset can validly invoke Magill and/or Bronner even when its incentives to invest and to innovate would not have been negatively affected by an obligation to deal with third parties.

For the same reason, it is inevitable to conclude that the scope of the refusal to deal doctrines has been expanded to comprise scenarios where it would not have been applicable, at least in light with the twofold rationale provided by the Court in Slovak Telekom.

The conclusion seems clear: the scope of refusal to deal doctrines seems to have shrunk in digital scenarios, whereas it has expanded in the realm of public utilities (telecommunications, energy, gas, rail), where the incumbent often exploits infrastructures rolled out with public support.(if not outright ownership).

In a sense, the case law appears to have moved in line with enforcement priorities.