What Lukoil means for the refusal to deal doctrines
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.
Chillin'Competition 
Dear Pablo, I do notfollow you on this one.
What the Court has correctly argued here is that for the incentives to invest in an infrastructure it makes no difference whether the dominant firm has build the infrastructure itself or whether is has acquired the infrastucture at a competitive market price. This makes perfect economic sense, both as regards the incentive to build respectively acquire the infrastructure as for the incentives to maintain/expand/improve the infrastructure.
The incentive question would be different in case the building of the infrastructure was done with public funds or supported by state aid and the subsequent privatisation and sale of the infrastructure was not done at a competitive price (‘not done at a price and under conditions resulting from a competitive procedure’). In that case the firm acquiring the infrastucture would effectively be subsidised. If it would subsequently argue that having to give access would undermine its incentives to invest, those arguments should indeed be taken with a pince of salt.
Assuming that Lukoil bought the infrastructure at a competitive price and did not receive subsidies later, questions of fact on which the Court did not have to rule, the judgment makes perfect sense and does not, as claimed by you, expand the scope of the refusal to deal doctrines. Basically, it shouldn’t matter, for the application of the law, whether the dominant firm bought the infrastructure at a competitive price from a state/authority or from another private firm.
Finally, but this is a different point, I also do not agree that with Android Auto the Court has shrunk the scope of refusal to deal doctrines in digital scenarios. The scope was shrunk with Teliasonera and Slovak Telekom. Those two judgments made clear that the Bronner conditions (only) apply in case of a denovo refusal and not in case the dominant firm is or has been giving access (as, for instance, in case of termination of supply and margin squeeze). Android Auto is just following that logic. This may in practice be particularly relevant for the digital context, but that is simply because those platforms start to be open and accessible and the termination or squeezing starts later when the platform has become dominant and it is money time.
Luc Peeperkorn
5 February 2026 at 9:10 pm