The Court of Justice confirmed that where a dominant undertaking provides access to its infrastructure but subjects that access to unfair terms and conditions, the indispensability requirement is not part of the legal test to find an abuse.
In 2014, Slovak Telekom a.s. (ST) was fined by the Commission for abusing its dominant position on the Slovak market for broadband internet services by imposing unfair terms and conditions on alternative operators to have access to its local loop. The Commission considered that by applying those unfair conditions and tariffs, ST prevented an equally efficient competitor from replicating the retail services offered by ST without incurring a loss and thereby abused its dominant position on the relevant market.
In its judgment of 25 March 2021, the Court of Justice clarified the scope of its judgment in Bronner as regards the classification as abusive of a refusal of access to infrastructures owned by a dominant undertaking.
The Court recalled that a dominant undertaking may be forced to give access to an infrastructure that it has developed for the needs of its own business only where, first, refusing that access is likely to eliminate all competition on the part of the competing undertaking requesting access, and second, that refusal cannot be objectively justified, and third, such access is indispensable to the business of the competing undertaking, that is to say, there is no actual or potential substitute for that infrastructure. If those conditions are fulfilled, it may be considered that the dominant undertaking has a genuinely tight grip on the market concerned, which could justify to interfere in its freedom of contract and its right to property by imposing on it an obligation to conclude a contract with a competing undertaking.
The question arises as to whether those conditions should also be applied where a dominant undertaking gives access to its infrastructure but makes that access subject to unfair conditions. Regarding that question, the Court answered that, while such practices can be abusive, they cannot be equated to a refusal of access. As access has already been granted, the measures to be taken by competition authorities in such a context will be less intrusive and less detrimental to the freedom of contract of the dominant undertaking and to its rights to property than forcing it to give access to its infrastructure. Accordingly, the conditions laid down in the judgment in Bronner do not apply.
In the present case, as ST was subject to a regulatory obligation to provide access to its infrastructure, and the Commission’s allegations related to the terms on which that access was provided, the Court found that the Bronner conditions were not relevant. In particular, the Court decided that the Commission was not required to demonstrate that access to ST’s local loop was indispensable for competing undertakings to enter the market in order to be able to classify the terms and conditions for access called into question as an abuse of dominant position.
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