Judgment of 12 January 2023, Lietuvos geležinkeliai v Commission, C‑42/21 P, EU:C:2023:12 (Lithuanian Railways) CURIA LINK
Key takeaways
Q. What does Bronner concern? When does the case apply?
A. It concerns a situation where a dominant firm makes an infrastructure (indispensable) not accessible for its own use. So, when the firm (does not own the infrastructure and) removes the entire infrastructure (owned by the state), and so it's impossible for him to use it as well, Bronner does not apply. It's not a refusal to supply. Also, as was clarified in DT v COM, the Bronner test won't apply when the dominant firm in question is subject to a regulatory obligation to give access.
82 It follows from the foregoing considerations that that case-law concerns, in essence, a refusal of access to infrastructure, whereby, ultimately, the dominant undertaking reserves the infrastructure which it has developed for its own use (see, to that effect, judgment of 25 March 2021, Deutsche Telekom v Commission, C‑280/19 P, EU:C:2021:238, paragraph 47). That case-law implies, as the Advocate General has pointed out, in particular, in point 80 of his Opinion, maintaining infrastructure, the use of which the dominant undertaking reserves for itself in pursuit of an immediate benefit.
83 It is clear that, by contrast, destroying infrastructure entails sacrificing an asset, subject, where appropriate, to the costs associated with such destruction. As a result of the destruction, the infrastructure inevitably becomes unusable by competitors but also by the dominant undertaking itself.
... 86 ... it also follows from the Court’s case-law that the criteria established in paragraph 41 of the judgment of 26 November 1998, Bronner (C‑7/97, EU:C:1998:569), are intended to strike a fair balance between, on the one hand, the requirements of undistorted competition and, on the other hand, the freedom of contract and the right to property of the dominant undertaking. In that sense, those criteria are intended to be applicable in the event of refusal of access to infrastructure which the dominant undertaking owns and which it has developed for the needs of its own business by means of its own investments (see, to that effect, judgments of 26 November 1998, Bronner, C‑7/97, EU:C:1998:569, paragraph 37, and of 25 March 2021, Deutsche Telekom v Commission, C‑152/19 P, EU:C:2021:238, paragraph 47).
87 Accordingly, the General Court did not err in law in holding, in essence, in paragraphs 90, 93 and 94 of the judgment under appeal, that, having regard to their purpose, those criteria do not apply, in a situation such as that in the present case, where the infrastructure in question was financed by means not of investments specific to the dominant undertaking, but by means of public funds and that undertaking is not the owner of that infrastructure.
88 Third, it is important to recall that the Court has already held that a regulatory obligation can be relevant for the assessment of abusive conduct, for the purposes of Article 102 TFEU. While the existence of a regulatory obligation on the dominant undertaking to grant access to the infrastructure in question cannot relieve the Commission of the requirement to establish the existence of an ‘abuse’ within the meaning of Article 102 TFEU, the fact remains that the imposition of such an obligation has the consequence that the dominant undertaking cannot actually refuse to give access to that infrastructure, without prejudice, as appropriate, to its decision-making autonomy in relation to the conditions for such access (see, to that effect, judgment of 25 March 2021, Deutsche Telekom v Commission, C‑152/19 P, EU:C:2021:238, paragraphs 57 and 58 and the case-law cited).
89 The General Court did not therefore err in law in holding, in paragraphs 91 and 92 of the judgment under appeal, that the criteria established in the judgment of 26 November 1998, Bronner (C‑7/97, EU:C:1998:569) are not applicable where the dominant undertaking is subject to an obligation to give access to its infrastructure.