We will be taking a short break for summer holidays. We will resume our regular publishing schedule in early September 2025.
In the meantime, we are always open to receiving new academic contributions from our readers. If you have an innovative, dynamic, thoughtful piece that you believe would fit in this blog, feel free to send it to us at: unio.cedu@direito.uminho.pt.
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Beatriz Magalhães Sousa (master’s student in European Union Law at the School of Law of University of Minho)
On 10 July 2025, Advocate General Laila Medina delivered her opinion on the LUKOIL Bulgaria EOOD and LUKOIL Neftohim Burgas AD v. Komisia za zashtita na konkurentsiata (Competition Protection Commission) case (C-245/24).[1] This opinion comes at a time where questions run wild about the role played by Bronner and its essential facilities doctrine on recent competition law affairs – a direct effect of the outcome of the AndroidAuto case (C-233/23),[2] on 25 February 2025.
1. Bronner and the essential facilities doctrine
Founded on Section 1 of the Sherman Act 1890,[3] the essential facilities doctrine gained traction in United States v. Terminal Railroad Association. In that case, the U.S. Supreme Court held that the Association’s control over the sole viable way of crossing the Mississippi River, aligned with the geographical impossibility of building an alternative, rendered the refusal of access to that channel illegal under antitrust law.[4] This defined essential facility as “at a minimum, a resourced possessed by the defendant (dominant undertaking) that is vital to the plaintiff’s competitive viability”.[5]
Although it lost momentum in the U.S., the theory was initially received by the European Union under Article 86 of the Treaty establishing the European Economic Community (ECC Treaty) [current Article 102 of the Treaty on the Functioning of the European Union (TFEU)]. The Commission began to consider a dominant undertaking’s refusal to grant access to an essential facility as a possible constitution of abuse of that position of dominance. This idea, developed through a series of decisions by both the European Commission and the Court of Justice, culminated in five rigorous criterion delivered by the Bronner judgment: (i) the dominant undertaking must have refused to supply; (ii) the product, service or infrastructure to which access is requested must be indispensable to allow competition in the downstream market; (iii) the refusal must be likely to result in the elimination of effective competition in said market; (iv) the refusal must be susceptible to cause harm to consumers, and (v) there must be no objective justification for the refusal to supply.[6]
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