European High Court: Google must always open Android Auto to third parties

The European Court of Justice (ECJ) has ruled that Google must open up its Android Auto vehicle platform to third parties. According to the ruling, a company such as the Alphabet subsidiary is potentially abusing its dominant market position if its conduct excludes, hinders or delays a third-party provider's access to the platform. Such an infringement of competition is not limited to the fact that a central service such as Android Auto is indispensable for the performance of third-party activities. It could already be abusive not to ensure interoperability if an app from an external provider would become “more attractive to consumers” through integration on the platform.

The case concerns a long-running dispute between the Italian energy company Enel and Google over access to Android Auto for the JuicePass charging app. The electricity provider wants to enable users to access its smartphone application directly via the on-board screen of vehicles. The Android manufacturer refused, arguing, among other things, that it would have to develop a software template that takes into account the specific needs of Enel subsidiary X in addition to granting consent in principle. Only media and messaging apps are actually compatible with Android Auto. Security considerations would therefore also have to be considered.

The Italian Competition and Markets Authority (AGCM) believed that this behavior constituted an abuse of a dominant position. It imposed a fine of over 102 million euros on Google. The Android manufacturer challenged this decision up to the Italian Council of State, which referred the case to the ECJ. The latter has now ruled in case C-233/23 that the refusal of a company in a dominant position to ensure the interoperability of a platform developed by it with an app developed by a third party may constitute an abuse of a dominant position.

Platform security must be guaranteed

The Council of State must now examine, among other things, whether Google's “no” led to the US company being able to expand its position on the market with Android Auto. According to the ECJ, this would be supported by the fact that the refusal to allow interoperability could have hindered competition on the relevant market. Google's stance would only be reasonable if the required template would jeopardize the integrity of the platform or the security of its use, or if its development was technically impossible. Otherwise, Google would have to program the software template “within a reasonable period of time and, if necessary, for an appropriate financial consideration”. The needs of Enel, the actual costs of development and Google's right to obtain a reasonable benefit from this must be considered.

The Luxembourg judges thus essentially followed the recommendation made by ECJ Advocate General Laila Medina in September. She also stated that the additional effort to be made by Google alone could not justify a refusal of access, at least if a reasonable timeframe was available for the development and the dominant company was paid reasonable remuneration. As early as 2021, the ECJ declared a right to reverse engineering: the lawful purchaser of a computer program may decompile it in whole or in part to correct functional errors and ensure interoperability. Further supreme court decisions are to be expected, particularly in relation to the new far-reaching interoperability requirements of the Digital Markets Act (DMA) for “gatekeepers”.

(mki)