Il caso ”Android Auto” e lo statuto del ”refusal to interoperability” nei mercati digitali. ”Alias” l’EFD in salsa digitale

The «Android Auto» case marks a turning point in the jurisprudence and doctrine of the Essential Facility Doctrine (Efd) and exclusionary abuses, fitting in the wake already traced by the Google Shopping and Google Android cases. In fact, the Court’s decision offers a more flexible interpretation of the criteria for assessing the conduct of dominant companies developed in the Bronner ruling. This translates into the construction of a true «statute» of impedimental abuse in digital markets or, if you will, of the refusal to interoperability. Its key points can be summarized as follows: i) the requirement of the indispensability of the infrastructure does not apply when the dominant undertaking has developed the infrastructure not solely for the needs of its own business but with a view to enabling third-party undertakings to use that infrastructure; ii) the definition of the relevant downstream market can only be potential or hypothetical, without a precise identification of the relevant product and geographic market; iii) the evidence of anticompetitive foreclosure caused by the dominant undertaking is not prevented by the (already) presence of competitors on the downstream market or by the strengthening of their presence on the market during the time period covered by the investigation, as these elements can be assessed as evidence of the absence of foreclosure effects; iv) the objective justifications that can be put forward in response to the request for interoperability of a proprietary app with a third-party platform do not also include the absence of a model for the requested product, as only cases where the integrity of the platform itself or the security of its use is compromised or the impossibility to guarantee such interoperability for other technical reasons should be considered.