Provisional text

delivered on 10 July 2025 (1)

Case C‑245/24

LUKOIL Bulgaria EOOD,

LUKOIL Neftohim Burgas AD

Komisia za zashtita na konkurentsiata

(Request for a preliminary ruling from the Administrativen sad Sofia-oblast (Administrative Court, Sofia Province, Bulgaria))

( Reference for a preliminary ruling – Competition – Article 102 TFEU – Abuse of a dominant position – Petroleum sector – Refusal to grant access to an essential facility – Application of the test of the judgment in Bronner (Case C‑7/97) – Privatisation – Concession )

The present case again raises the question of the application of the landmark judgment in Bronner (2) in relation to a refusal to grant access to an essential infrastructure. This time, that question is raised in the context of a former State-monopoly infrastructure which was acquired by way of privatisation and in which significant investments were made both on the basis of the performance of the privatisation contract and during the course of the new owner’s business.

The present reference from the Administrativen sad Sofia-oblast (Administrative Court, Sofia Province, Bulgaria) arose in an action brought by LUKOIL Bulgaria EOOD (‘Lukoil Bulgaria’) and LUKOIL Neftohim Burgas AD (‘Lukoil Burgas’) (together, ‘the Lukoil group’) against a decision of the Komisia za zashtita na konkurentsiata (Bulgarian National Competition Authority; ‘the NCA’). (3) In its decision, that authority found that the Lukoil group had infringed Article 21(2) and (5) of the Zakon za zashtita na konkurentsiata (Law on the Protection of Competition; ‘the ZZK’) and point (b) of the second paragraph of Article 102 TFEU by way of an abuse of a dominant position on the market for the storage of automotive fuels.

Lukoil group’s activities in Bulgaria and the privatisation process

The applicants in the main proceedings are two companies established in Bulgaria whose activities in that Member State date back to the privatisation of Neftohimicheski kombinat Burgas (petrochemical combine of Burgas (Bulgaria); ‘Kombinat Burgas’).

Kombinat Burgas began operating in 1963 as a State-owned company. The main chemical production plants were built and commissioned between 1960 and 1970. The company’s assets (that is, the infrastructure) include three pipelines and seven depots/terminals which form the network, in particular, for transporting automotive fuels from the Black Sea coast to the capital and fuels from oil depots to be stored and transported to Bulgaria’s largest cities (Burgas, Stara Zagora, Plovdiv and Sofia). The company also used the Rosenets port terminal for importing raw materials and exporting finished products. The company Neftohim was established with its registered office in Burgas by a decision of the Council of Ministers of 24 February 1989. Pursuant to a decree of the Council of Ministers of 5 September 1991 on the establishment of State-owned single-member commercial companies, that company was transformed into a State-owned single-member commercial company with effect from 31 August 1991. In accordance with the privatisation programme using investment vouchers, which was adopted by the Narodno sabranie(National Assembly) on 19 December 1995, it was planned that 25% of the company’s capital would pass from State ownership to private ownership through mass privatisation using investment vouchers, while the State would retain 75%. The Council of Ministers’s Decision No 650 of 11 October 1999 approved the privatisation contract for the sale of 58% of the company’s capital, representing the majority share. The sale contract was concluded on 12 October 1999 between the Republic of Bulgaria and Lukoil Petrol AD, Sofia. On 3 May 2001, Lukoil Petrol purchased, by means of a privatisation contract, 13.89% of Neftohim’s capital (renamed Lukoil Neftohim Burgas AD), which represents a preferential package of shares or units.

By Decree No 181 of 20 July 2009, the Republic of Bulgaria declared that the port of Burgas, including the Rosenets port terminal to which it is connected, and the abovementioned pipelines constituted strategic infrastructure.

In that connection, it is stated in the order for reference that the Lukoil group has made substantial investments in the undertakings at issue since the conclusion of the privatisation contract, and that evidence of investments made in the Lukoil group’s essential facility has been provided in the case in the main proceedings.

Two companies in the Lukoil group were addressees of the NCA decision: Lukoil Burgas, which is the producer, and Lukoil Bulgaria, which is the distributor within that group in Bulgaria.

Based in Burgas, Lukoil Burgas is the main producer of petroleum products in the country. It operates the Burgas refinery and the Rosenets port terminal for which it holds a concession granted by the Bulgarian State on 22 March 2011.

As regards the management of Lukoil Burgas, from 1 January 2016 to 9 December 2018 the company’s capital was divided into 88 417 183 shares with a par value of 1 lev (BGN) each. Lukoil Europe Holdings BV owned 88.72% of the shares and PAO Lukoil (Russian listed joint-stock company) owned 11.10%. Since 10 December 2018, the company’s capital has been divided into 99 397 192 shares, with Lukoil Europe Holdings holding 89.97% of those shares and PAO Lukoil holding 9.88%. The ultimate controlling parent company is PAO Neftyanaya Kompaniya LUKOIL, established in the Russian Federation. The shares are divided into two classes, namely Class A, consisting of a single share owned by the Republic of Bulgaria, which grants it special rights, and Class B, that is, the remaining 99 397 191 shares as dematerialised ordinary shares. Under those special rights, the general meeting of shareholders of Lukoil Burgas cannot, without the prior written consent of the Bulgarian State and under certain conditions, adopt a decision substantially reducing fuel production or refusing access to port facilities and pipelines in exchange for equitable remuneration.

Based in Sofia, Lukoil Bulgaria is active in the distribution of petroleum products, mainly the wholesale trade in motor fuels. To that end, it has depots across the country. In the period from 1 January 2016 to 30 November 2020, Lukoil Bulgaria had three tax warehouses subject to excise duty. For the retail distribution of fuels, Lukoil Bulgaria uses its national network of petrol stations.

As regards the management of Lukoil Bulgaria, from 1 January 2016 to 15 December 2020 the sole owner of the capital of that company was Lukoil Europe Holdings Ltd, registered in Amsterdam (Netherlands), and then from that date on it belonged to another company of the Lukoil group, LITASCO SA, registered in Switzerland.

The NCA decision and the grounds for referring the questions for a preliminary ruling

In March 2020, after finding that the retail price of motor fuels had not decreased as much in Bulgaria (– 11%) compared to the price of oil on world markets (– 47%), the Varhovna administrativna prokuratura (Public Prosecutor’s Office at the Supreme Administrative Court, Bulgaria) requested the NCA to investigate the existence of infringements of competition law relating to the setting of retail fuel prices.

According to the referring court, it is apparent from the NCA decision that the Lukoil group is the largest authorised warehouse keeper of fuels and the main operator on the wholesale and retail markets for those products. According to the NCA, the Lukoil group’s infrastructure is unique in the country and region and it is impossible to replicate now that State ownership has been abolished.

Furthermore, the Lukoil group, as an authorised warehouse keeper, was subject to a regulatory obligation to grant access to a part of its storage capacity. According to that decision, from 23 December 2020, with the exception of the pipelines between Burgas and Sofia, all of those infrastructures, as well as the depots of Iliantsi and Ruse, were subject to that obligation, which arose from the amendments made on 18 September 2020 to the Pravilnik za prilagane na Zakona za aktsiznite i danachnite skladove (Regulation implementing the Law on excise duties and tax warehouses), requiring authorised warehouse keepers to make part of their capacity available to their competitors.

According to the NCA decision, in the period between 1 January 2016 and 31 March 2021 (‘the infringement period’), the Lukoil group pursued an overall strategy aimed at abusing its dominant position on the fuel storage market by not allowing fuels of other producers or importers to access its fuel storage and transport infrastructure and, in particular, (i) refused to give importers and producers of motor fuels access to the Lukoil group’s own tax warehouses; (ii) restricted imports by sea by blocking the tax warehouses of Rosenets and Varna port terminals; and (iii) refused to give importers and producers of fuel access to the Lukoil group’s pipelines.

The NCA considered that that conduct could be classified as an ‘unjustified refusal to supply goods or services’, within the meaning of Article 21(5) of the ZZK, and as a ‘restriction of production, trade and technical development to the detriment of consumers’, within the meaning of Article 21(2) of the ZZK, each of those two classifications also falling within the scope of abusive practices consisting of ‘limiting production, markets or technical development to the prejudice of consumers’, prohibited by point (b) of the second paragraph of Article 102 TFEU. That authority considered that Lukoil Burgas and Lukoil Bulgaria had committed a single infringement of that point (b) and of the corresponding provisions of Bulgarian law, consisting of an abuse of a dominant position on the market for the storage of motor fuels in Bulgaria. By way of sanction for that infringement, the NCA imposed on Lukoil Burgas a fine of BGN 139 864 965 (approximately EUR 71.5 million) and on Lukoil Bulgaria a fine of BGN 55 271 210 (approximately EUR 28.3 million).

The referring court states, inter alia, that it follows from the NCA decision that the NCA considered that the judgment in Bronner is not applicable because the infrastructure acquired was built with public funds, which applies to the entire infringement period, and because of the existence of a legal obligation to provide access, which applies to the period from 23 December 2020 to 31 January 2021.

It follows from that decision that the infrastructure comprising, in particular, five oil depots, two tax warehouses (Burgas and Rosenets) and all the Lukoil group pipelines to which Lukoil Burgas and Lukoil Bulgaria refused to give access during the infringement period was, for the most part, built with public funds.

The referring court asks, in essence, whether, in order to disregard the criteria arising from the judgment in Bronner on the ground that the dominant undertaking obtained the essential infrastructure following privatisation or a concession, account must be taken of other circumstances, such as the obligations arising from a privatisation contract, the amount of the investments made by that undertaking and whether those investments were made on the initiative of the dominant undertaking or at the request of the State.

The referring court observes, in that regard, that the NCA considered that the criteria arising from the judgment in Bronner were inapplicable to infrastructure built using public funds and subsequently acquired by the dominant undertaking in the context of a privatisation, or made available to that undertaking by means of a concession. However, the NCA decision was signed with two dissenting opinions from two of its members who, in their reasoning, cite the judgment in LG, (4) in which it was held that an infringement, similar to the one in the present case, was not a refusal to supply but constituted a completely different type of infringement.

In Question 2.1, the referring court mentions the European Commission’s communication regarding its guidance on enforcement priorities. (5) According to paragraph 75 thereof, ‘the knowledge that they may have a duty to supply against their will may lead dominant undertakings – or undertakings who anticipate that they may become dominant – not to invest, or to invest less, in the activity in question. Also, competitors may be tempted to free ride on investments made by the dominant undertaking instead of investing themselves. Neither of these consequences would, in the long run, be in the interest of consumers.’

In those circumstances, the Administrativen sad Sofia-oblast (Administrative Court, Sofia Province) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Where the [NCA] has identified different types of behaviours, some of which have been classified as a refusal to grant access to an essential facility and others as a restriction of trade, but which have been combined into an overall strategy of the undertaking, is it permissible to find there to have been a single infringement under Article 102 TFEU or must separate infringements, classified respectively as a refusal to grant access to an essential facility and a restriction of trade, be found to have been committed?

(2) Must the [NCA] exclude the application of the [test in the judgment in Bronner (“the Bronner test”)] to the alleged infringement under Article 102 TFEU in the form of a refusal to supply in all cases where the undertaking in a dominant position in relation to the essential facility has received public funding (on the basis of a privatisation contract/a concession), or is it necessary to assess the amount of the investment, the performance of the privatisation contract/concession (on the basis of which the essential facility was acquired) and whether the investment was made in connection with the performance of the investment contract/concession or on that undertaking’s own initiative?

(2.1) If the foregoing question is answered in the affirmative, is observance of the principle of proportionality set out in [paragraph 75 of the Commission’s communication regarding its guidance on enforcement priorities] ensured, where the dominant undertaking has invested in the essential facility, by applying restrictive criteria determined on the basis of the principle of “that which is most necessary” for preserving competition, with proportionate account being taken of the interests of the dominant undertaking?’

II. Procedure before the Court

The Lukoil group, the NCA, the Bulgarian Government and the Commission submitted written observations. On 10 April 2025, all those parties also presented oral argument before the Court.

III. Assessment

In keeping with a request by the Court, the present Opinion addresses only Questions 2 and 2.1, which relate to the application of the test in the judgment in Bronner.

Since Question 2 and Question 2.1 are interconnected, I will address them together. By those questions, the referring court is seeking, in essence, an interpretation of Article 102 TFEU in order to determine whether the Bronner test is inapplicable in all cases of refusal to grant access to infrastructure which a dominant undertaking acquired from the State by way of privatisation or which it controls under a concession contract. In the alternative, the referring court is asking whether, in order to apply the Bronner test in the present case, it is necessary to assess the dominant undertaking’s conduct and investment structure, as well as the amount of the investments. That court is also asking about the possible implications resulting from the application of the principle of proportionality in the present case. It should be noted that it follows from the order for reference that the questions are referred on the premiss that the infrastructure in question is an essential facility.

As I will show below, the EU Courts’ recent case-law suggests a nuanced approach to the applicability of the Bronner test, which depends, inter alia, on the ownership of or control over the infrastructure that is the essential facility in question and any regulatory obligations.

As regards practices consisting in a refusal to grant access to infrastructure developed by a dominant undertaking for the purposes of its own business and owned by it, it is apparent from the case-law of the Court that such a refusal may constitute an abuse of a dominant position provided that (i) the refusal is likely to eliminate all competition in the market in question; (ii) the refusal is incapable of being objectively justified; and (iii) the infrastructure, in itself, is indispensable to carrying on the business of the undertaking requesting the access, inasmuch as there is no actual or potential substitute in existence for that infrastructure. (6)

The Bronner test is twofold. First, it lays down certain requirements that the infrastructure in question must satisfy in order for that test to apply (the Bronner requirements). Secondly, it defines the consequences which must arise if a dominant undertaking refuses to grant access to the infrastructure in question in order for that conduct to be held to be an abuse under Article 102 TFEU (the Bronner criteria). Although Question 2 and Question 2.1 relate, in principle, to the first part of the Bronner test, it is necessary to recall the reasons which led the Court to lay down those criteria for establishing such abusive conduct.

The Court has pointed out that the finding that a dominant undertaking abused its position due to a refusal to conclude a contract with a competitor has the consequence of forcing that undertaking to conclude a contract with that competitor. Such an obligation is especially detrimental to the freedom of contract and the right to property of the dominant undertaking, since an undertaking, even if dominant, remains, in principle, free to refuse to conclude contracts and to use the infrastructure it has developed for its own needs. (7)

The Bronner criteria are intended to strike a fair balance between the requirements of undistorted competition, on the one hand, and the freedom of contract and the right to property of the dominant undertaking, on the other hand. Forcing a company to share assets it developed at its own expense is likely to restrict innovation and investment, as it reduces the incentives for any undertaking to invest and innovate in the long term. (8) That approach is based on the consideration that the dominant undertaking would not have invested in the same manner (or at all) in such infrastructure if it had known that it would have been obliged to share it with its competitors. (9)

In order to impose the obligation to grant access, the Court requires that the infrastructure in question be indispensable and that the conduct of the dominant undertaking be likely to eliminate all the competition. The strict nature of those criteria necessarily demands that the applicability of the Bronner test remain limited to cases which in fact correlate with the original requirements laid down by the Court as part of that test. A different interpretation of those requirements would unduly reduce the effectiveness of Article 102 TFEU.

According to the Court, those criteria, first, are intended to be applicable in the event of a refusal of access to infrastructure that the dominant undertaking has developed for the needs of its own business by means of its own investments, thus establishing the requirement of ownership of the infrastructure in question and of control over it. Accordingly, having regard to their purpose, those criteria do not apply in a situation where the infrastructure in question was financed by means other than investments specific to the dominant undertaking, such as, for example, public funds, and where that undertaking is not the owner of that infrastructure. (10)

Secondly, the Court has clarified the applicability of the Bronner test in a situation where the dominant undertaking has a regulatory obligation and has ruled that ‘the imposition of such an obligation [to grant access to its infrastructure] has the consequence that the dominant undertaking cannot actually refuse to give access to [it]’. (11) It can be presumed that, in such a situation, the legislature has already struck a fair balance between the interests concerned, taking into account the specific circumstances of the sector and the fact that the dominant undertaking retains its decision-making autonomy only in relation to the conditions of the above access. (12) Thus, the Court established the requirement that the dominant undertaking have full decision-making autonomy regarding that access.

The Court has also explained that the Bronner criteria apply only to outright refusals to deal (13) and not to other forms of abuse (for instance, margin squeeze or the destruction of infrastructure, such as the removal of a section of the rail network) (14) or, in relation to digital platforms, to situations where a dominant undertaking did not develop such a platform solely for the needs of its own business, but with a view to enabling third-party undertakings to use it. (15)

It follows from the foregoing that the Court intended the Bronner test to be strict, in order to avoid undermining dominant undertakings’ incentives to invest in their infrastructure. At the same time, the scope of the Bronner test is limited to the specific situations in which a dominant undertaking has full control over the infrastructure concerned. In all other situations, it cannot be required – in order for conduct consisting of a dominant undertaking’s refusal to grant access to essential facilities to be found to be abusive – that the Bronner criteria be satisfied in every case. (16)

It is in the light of those considerations that I will analyse Question 2 and Question 2.1.

B. Assessment of the facilities at issue in the light of the Bronner test

By the first part of its second question, the referring court asks whether the Bronner test is inapplicable in all cases of refusal to grant access to infrastructure where that infrastructure has been developed by the State, using public funds.

As my preliminary observations above indicate, the case-law of the EU Courts makes clear that the decision whether to apply the Bronner test or not should not be made mechanically. That case-law shows that the EU Courts look at the effect on competition and innovation (that is, by asking whether the abusive conduct produces exclusionary effects and forecloses innovation), not merely from examining the form of the infrastructure in question, who holds the legal title to it or who originally built it. (17) For that purpose, the Court has approached its assessment of the applicability of the Bronner test by taking into account all the relevant circumstances of a case. (18) It has examined issues related to the ownership or control of infrastructure, (19) the characteristics of alleged anticompetitive conduct (20) and the existence of external limitations of the decision-making autonomy, (21) as well as the purpose of investing and developing the infrastructure, and has ruled in each case based on the impact of those circumstances taken as a whole. Therefore, it is my view that, in order to rule on whether the Bronner test applies, the referring court is obliged to assess all the relevant circumstances of the case before it.

The referring court alone has jurisdiction to establish those circumstances given that, in preliminary ruling proceedings, it is not the task of the Court of Justice to establish the facts, but solely to interpret the relevant provisions of EU law. (22) In that connection, it is for the Court of Justice to provide the referring court with an answer which will be of use to it and enable it to decide the case before it. (23)

As is apparent from the documents before the Court, the doubts of the referring court as to the applicability of the Bronner test relate to the consequences to be drawn from the different elements of acquiring the infrastructure and obtaining as well as exercising control over it. The referring court raises no questions regarding the purpose of the acquisition and use of that infrastructure, nor does it express any doubts relating to the characteristics of the dominant undertaking’s alleged conduct. Therefore, my analysis will focus on the following two requirements: (i) the ownership of and control over the infrastructure and (ii) the decision-making autonomy of the dominant undertaking.

In order to provide the referring court with a useful answer, it is appropriate to examine those requirements on the basis of the individual elements of the present case which are relevant for determining whether the Bronner test is applicable, namely (i) the facilities acquired by the dominant undertaking from private third parties and through private financing; (ii) the relevance of the State-monopoly origin of the facilities; (iii) the control over the facilities in the event of a concession; (iv) the relevance of the investments made by the dominant undertaking post-privatisation; and (v) the obligations deriving from the privatisation and concession contracts.

1.Facilities acquired by the dominant undertaking from private third parties and through private financing

It is apparent from the order for reference that some of the facilities at issue in the main proceedings were acquired by the Lukoil group on its own initiative and for its own business purposes, from private third parties and through private financing. Those facilities are the Iliantsi and Ruse oil depots, which, according to Lukoil, had ‘nothing to do with the privatisation and concession contracts’.

Lukoil argued at the oral hearing that the NCA itself expressly considered that the Bronner test was applicable to the Iliantsi and Ruse oil depots for almost the entire infringement period, but that authority nevertheless chose not to apply it.

Subject to the verification by the referring court, essential facilities of such a kind would represent the classic context for the applicability of the Bronner test, that is, the facilities are created or obtained for the business purposes of the undertaking without any State involvement. Therefore, the Bronner test is, in principle, applicable in so far as, in such a situation, the dominant undertaking invested in those facilities on the basis that it would be able to use them for its own business purposes and that it should not be readily forced to share them with its competitors.

Indeed, in the judgment in LG, the Court recognised that the Bronner criteria are intended to apply in the event of a 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. (24) That judgment does not seem to require that the infrastructure must necessarily be constructed by the dominant undertaking itself; the use of the term ‘developed’ may very well mean ‘acquired with the aim of fitting it into the undertaking’s business strategy’. In that sense, the ownership rights may be obtained by way of any commercial transaction.

It follows that for those facilities the Bronner test is, in principle, applicable, provided that it can be established by the referring court that the Lukoil group acquired ownership of them through commercial transactions with private third parties, by way of private financing, and that that group exercises full decision-making autonomy in relation to those facilities.

2.Relevance of the State-monopoly origin of the facilities and whether it precludes ipso facto the Bronner test

It follows from the order for reference that the most important part of the facilities originates from a State-owned or public monopoly infrastructure which has since been acquired by a private undertaking (the Lukoil group) by way of privatisation, without that infrastructure being subject to an ongoing concession or regulatory obligation to grant access. (25) It may be observed that directly relevant case-law for this section is not abundant because most such sectors – telecommunications, energy, rail, and so forth – became subject to regulatory regimes as part of their privatisation or liberalisation.

A key question is whether the NCA is correct to argue that the Bronner criteria need not be applied in all cases on the sole ground that the construction of essential facilities was not financed by the dominant undertaking’s own funds, but originated from a State monopoly and/or was financed with public funds.

I consider that such an approach would be reductive. While the origin of the facility is a relevant consideration, as I will explain below, it follows from related EU Courts’ case-law and the Commission’s decision-making practice that the fact that an asset was once public (built with public funds) does not provide a legal basis for ipso facto excluding the applicability of the Bronner test.

Therefore, when assessing the applicability of the Bronner test in a privatisation context, that issue must be examined on a case-by-case basis, taking into account the nature of the infrastructure in question as well as individual aspects of the acquisition of that infrastructure.

First, in relation to the Bronner criteria for establishing an abusive refusal to grant access, there is no necessary and direct connection between a historic State monopoly and the satisfaction of those criteria. The question whether access to a particular infrastructure is indispensable and whether its refusal is likely to eliminate all competition depends on the factual and legal circumstances at the time of the alleged abuse, not on the events that long predate the alleged infringement of competition law.

Secondly, there is nothing in Article 102 TFEU, which in point (b) of the second paragraph provides that an abuse may consist of ‘limiting production, markets or technical development to the prejudice of consumers’, to suggest that infrastructure owned or controlled by an undertaking that was formerly a State monopoly should, for an unspecified period of time after the State monopoly ended, be subject to different legal standards under that article. In fact, it does not provide for any special treatment for former State monopolies. (26)

Therefore, for the purposes of Article 102 TFEU, a privately owned, ex-State infrastructure is, legally, akin to a purely private infrastructure provided that the dominant undertaking owns that infrastructure and exercises full decision-making autonomy over it. In particular, what matters in that context is whether the infrastructure was acquired at a fair price, whether the dominant undertaking invested in it and whether that undertaking can act as an owner for the purposes of the application of the judgment in Bronner. In that regard, the dominant undertaking should be able to rely on the guarantees provided in Article 17(1) of the Charter of Fundamental Rights of the European Union, according to which everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. (27)

In the case in the main proceedings, the referring court should therefore ascertain whether the Lukoil group paid a fair price to the State in the context of the privatisation. In that connection, I note that the Court has already ruled, (28) in essence – in EU State aid law, which is intertwined with EU competition law – in a case concerning privatisation in the mining industry, that acquisitions of assets, in a competitive auction and in the context of privatisation, are to be treated like any other acquisition of assets. In particular, the Court in that context stressed the importance of the fair price ‘that is to say … the highest price which a private investor acting under normal competitive conditions was ready to pay for those companies in the situation they were in’. In addition, the Court emphasised the significance of the nature of the transaction, which should be ‘an open and competitive tendering procedure under market conditions’. It is for the referring court to assess whether a procedure of a comparable nature was followed in the case in the main proceedings.

Indeed, it is worth observing that in previous decisions the Commission has also treated privatised essential infrastructure under a Bronner-like framework. Prior to the judgment in Bronner, the doctrine of essential facilities had been developed by the Commission in a series of cases concerning access to transport infrastructure. In those early cases in the 1990s, which involved privatised ports and ferry terminals (cases Sealink/B&I – Holyhead and Sea Containers v. Stena Sealink) (29), the Commission applied that doctrine to port access, thereby implicitly recognising that the ports were indispensable for ferry operators and that denying access would eliminate competition. Although those cases predate the judgment in Bronner, the Commission’s approach foreshadowed it.

Next, pre-Bronner cases such as Magill (30) and IMS Health (31) show that even where an asset was initially developed with public involvement or legal exclusivity, forced access to it was confined to ‘exceptional circumstances’ such as those in the judgment in Bronner (indispensability, new product, and so forth).

Moreover, my proposed approach finds support in paragraph 75 of the judgment in LG. It can be inferred therefrom that the Bronner test per se is excluded ‘where the dominant position derives from a statutory monopoly, particularly where the infrastructure in question belongs to the State and has been built and developed using public funds’. Therefore, in a case where there is no statutory monopoly and where ownership rights have been transferred to a private entity in the context of privatisation, an automatic exclusion of the Bronner test cannot be derived from the Court’s case-law and the referring court must assess the extent of the ownership and control rights. After all, one of the objectives of that test is the protection of the dominant undertaking’s property rights so that forced access by its competitors to its infrastructure only arises where it is appropriate and justified.

Therefore, it is not possible to regard a situation in which the infrastructure was transferred for consideration to a private undertaking and where that undertaking was required to take over the commitments of the former public owner vis-à-vis third parties (such as debts, contractual obligations or environmental costs) as being equivalent to a situation in which a former State monopoly ‘inherited’ the essential infrastructure (such as in the judgment in LG, where the dominant undertaking in that case was a public company and the infrastructure was transferred to it, in principle, free of charge).

Finally, it is relevant to observe that the most recent case-law of the General Court and the Commission’s decision-making practice both indicate the same approach. In the Bulgarian Energy Holding case, (32) the fact that that entity’s network was historically State-built did not preclude the General Court – or the Commission in its decision – from applying the Bronner test.

60.Therefore, the fact that an infrastructure was previously State-owned and was State-built does not mean that – once it has become privately owned following privatisation – the Bronner criteria can automatically be cast aside.

61.It follows from the foregoing considerations that the State-monopoly origin of the facilities does not automatically preclude the applicability of the Bronner test, provided that – where the dominant undertaking, as a result of privatisation, has acquired essential facilities of State-monopoly origin – it owns and controls those facilities and does not benefit from statutory monopoly.

3.Control over facilities in the event of a concession

62.The present section examines the relevance of control over facilities for the purposes of examining whether the Bronner test applies. In other words, it explores the significance in the context of the fact that some of the infrastructures at issue in the main proceedings are not owned by the Lukoil group and are instead operated by that group on the basis of a concession. In particular, this section considers a facility, namely the Rosenets port terminal, which is owned by the Bulgarian State, but which for 35 years has been made available to the Lukoil group under a concession.

63.Contrary to the arguments of the NCA, the mere fact that the Lukoil group is not the owner of that facility is not sufficient per se to preclude the applicability of the Bronner test. In the judgment in IMS Health (33), the Court stressed the fact that the undertaking ‘control[led] the … product or service’. Moreover, as Advocate General Rantos pointed out in his Opinion in European Superleague Company, ‘according to the essential facilities doctrine, a dominant undertaking which owns or controls an essential infrastructure may be forced to cooperate with its competitors by giving them access to that infrastructure without any discrimination.’ (34) The foregoing considerations and case-law highlight the possibility of extending the understanding of the relationship between a dominant undertaking and the essential facility in question from stricto sensu ownership to a situation of control.

64.When it comes to the impact of the Bronner test, it should be noted that it focuses on the effects of a refusal of access to an essential facility on competitors and consumers as well as the absence of alternatives that the dominant undertaking, which owns or controls the facility, may cause. (35) The three Bronner criteria set out in paragraph 41 of the judgment in Bronner are framed by the Court in a manner which protects the dominant undertaking’s incentive to invest and its general right to property and freedom to choose its trading partners, in order to ensure that the obligation to grant access to an essential facility remains an ‘exceptional circumstance’. In view of that context, the reasoning supporting the ruling in the judgment in Bronner allows the requirement of ‘ownership’ to be regarded in broad terms, that is, as also including the ‘control’ over an essential facility (refusal of access which forecloses competition) as being sufficient.

65.As Advocate General Jacobs observed in his Opinion in Bronner, the essential facilities doctrine focuses on preventing the effects of foreclosure. (36) In that connection, in an abusive refusal to grant access to such facilities, consumers would suffer the same harm whether the dominant undertaking is ‘owner’ or ‘concessionaire’ of those facilities. That being said, first, a concessionaire must have the power, under the concession contract, to exercise a degree of control that is, in essence, comparable to ownership, including full decision-making autonomy with respect to the use of such a facility. Secondly, in order to benefit from the protection of its rights obtained under such a contract, the dominant undertaking must have paid a fair price for the use of that facility. It is for the referring court to ascertain whether that is the case in the main proceedings.

66.Therefore, although the dominant undertaking may not be the owner of the essential facility, the fact that it has rights over that facility – such as exclusive rights – which were obtained by way of a concession contract, against a fair price, and which give that undertaking control over the facility (in particular, making third-party access to the facility impossible without the dominant undertaking’s consent) may suffice to justify the application of the Bronner test. That approach was followed by the General Court and by the Commission in the Bulgarian Energy Holding case. (37)

67.Therefore, to my mind, the Bronner test, in principle, applies equally whether the dominant undertaking owns the facility outright or whether it operates it under a concession. However, what matters is that in concession cases there are often significant ‘strings attached’, (38) in so far as the dominant undertaking may not be able, in such a situation, to demonstrate that it has sufficient control or rights over the facility and, in particular, the right to exclude competitors’ access to it – unlike the unmitigated control that the undertaking Bronner had over the infrastructure concerned in that case, of which it was the sole owner. In such a situation, the decision-making autonomy of the dominant undertaking, including its freedom to choose its trading partners, is limited.

68.It follows that, although a dominant undertaking may not be the owner of the essential facility, the fact that it has rights over that facility – such as exclusive rights – deriving from the concession contract which grants, against a fair price, that undertaking decision-making autonomy to control that facility (in particular, making third-party access to the facility impossible without the dominant undertaking’s consent) is sufficient to justify the application of the Bronner test, provided that those rights are not limited by the terms of the concession contract.

4.Relevance of investments made post-privatisation

69.The referring court is also seeking guidance on whether – in order to conclude whether the Bronner test is applicable – in a situation where the dominant undertaking has obtained key infrastructure from the State (by privatisation or concession), other circumstances should be taken into account, such as the performance of the obligations arising from the privatisation or concession contract, the amount of any investment and whether investments were made on the initiative of the undertaking or formed part of the performance of the contract.

70.The referring court is also asking, in essence, whether the NCA, when it assesses the issues mentioned above, should apply the principle of proportionality so as to ensure that, if the dominant undertaking is obliged to grant access to its facility, it is not unfairly penalised for investments it did, in fact, make.

71.Even where the essential facility has State-monopoly origins, the dominant undertaking may have made significant subsequent investments (maintenance, modernisation, capacity expansion, introduction of new products or services, and so forth) and/or have paid a fair price in the context of the privatisation. From that undertaking’s perspective, those are sunk costs and it is its legitimate right to benefit from those investments.

72.Therefore, as follows from points 53 and 68 of the present Opinion, if the dominant undertaking acted as a reasonable market participant during the privatisation or concession process and in the period thereafter, then it deserves the protection of its property rights and the freedom to contract on the same footing as owners of infrastructure obtained in the general course of business, provided that those rights are not limited by the privatisation or concession contract.

5.Obligations deriving from privatisation and concession contracts

73.Before examining the impact of obligations stemming from privatisation or concession contracts, it is worth recalling that the Court has already made clear that the Bronner test does not apply where the dominant undertaking has a regulatory obligation (39) to provide access to the infrastructure it controls. (40)

74.In that regard, the Court has ruled that a regulatory obligation may be relevant in assessing abusive conduct, within the meaning of Article 102 TFEU. (41) The Court has also made clear that the existence of such an obligation affects the dominant undertaking’s decision-making autonomy. (42) In that sense, due to the regulatory obligation that undertaking can no longer (freely) refuse access. (43)

75.It follows from the documents before the Court that the referring court does not harbour any doubts regarding the regulatory obligations and their impact with respect to the infrastructure in question.

76.According to the order for reference, the Bulgarian State owns the Rosenets port terminal, which is part of the ‘Burgas Public Transport Port of National Importance’. As is clear from paragraph II.3 of the order for reference, the Rosenets port terminal is operated by Lukoil Burgas under a concession contract (44) the duration of which is 35 years. It appears from the documents before the Court that that concession contract requires (i) the dominant undertaking to grant access to its port services (45) and (ii) that it does not engage in any act constituting an abuse of a dominant position in the context of granting such access. (46)

77.In the light of those factual circumstances, the present case raises the novel question of whether it is possible to draw an analogy between a regulatory obligation to grant access, on the one hand, and a concession contract and/or a privatisation contract, on the other hand, where they contain, directly or indirectly, certain obligations imposed by the State on the dominant undertaking in relation to the facility in question.

78.It follows from the Court’s case-law mentioned above that, where a dominant undertaking is subject to regulatory obligations, the aspect which determines the applicability of the Bronner test is whether the dominant undertaking concerned is able freely to decide to refuse to grant access to the infrastructure. Therefore, it is the effect of the exercise of the regulatory power that is important. For those reasons, I consider that it is possible to draw an analogy with a situation in which the competent State authority – by way of a concession contract or a privatisation contract – unilaterally imposes an obligation to grant access by exercising its powers under the relevant regulatory acts, even where this is carried out in the form of a special transaction under civil law. However, it is important that the instrument that the State chooses to use – statutory, contractual or regulatory – actually creates a binding obligation to grant access to the facility in question and contains clear, precise and unconditional terms in that regard.

79.It appears from the documents before the Court that the Bulgarian State used several means specific to the powers of public authority: (i) the manner in which it defined the terms of the privatisation and concession contracts; (ii) the allocation of a ‘golden share’ in the capital of Lukoil Burgas, granting the State a right of veto over certain strategic decisions of the company; (iii) the legislative interventions (that is, the classification of the oil infrastructure as strategic infrastructure); and (iv) the imposition of an obligation to give third parties access to a part of the storage capacity. Under those conditions, it is for the referring court to verify whether the decision-making autonomy of the Lukoil group is in fact limited to such an extent that it retains its decision-making autonomy only in relation to the conditions of the access. (47)

80.It follows from the foregoing considerations that the applicability of the Bronner test should be excluded in cases where a privatisation contract, a concession contract or other related measures limit the decision-making autonomy of the dominant undertaking, provided that such provisions are imposed by a competent State authority exercising its powers under the relevant regulatory provisions. It is for the referring court to ascertain whether that is the case.

81.I propose that the Court of Justice answer Questions 2 and 2.1, referred for a preliminary ruling by the Administrativen sad Sofia-oblast (Administrative Court, Sofia Province, Bulgaria), as follows:

(1)The test laid down in paragraph 41 of the judgment of 26 November 1998, Bronner (C‑7/97, EU:C:1998:569), is, in principle, applicable where it can be established that:

(a)the dominant undertaking acquired ownership of the essential facility concerned through commercial transactions with private third parties, by way of private financing, provided that it exercises full decision-making autonomy in relation to that facility;

(b)the dominant undertaking, which has acquired an essential facility of State-monopoly origin as a result of privatisation, does not benefit from statutory monopoly and owns and controls that facility;

(c)the dominant undertaking is not the owner of the essential facility concerned and yet has rights, such as exclusive rights, deriving from a concession contract, which grants that undertaking, against a fair price, decision-making autonomy to fully control that facility.

(2)The applicability of the Bronner test should be excluded in situations where a privatisation contract, a concession contract or related measures regarding the essential facility contain provisions that limit the decision-making autonomy of the dominant undertaking, provided that such provisions are imposed by a competent State authority in exercising its powers under the relevant regulatory provisions.

It is for the referring court to establish whether the Bronner test is applicable in the case in the main proceedings.

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1Original language: English.

2Judgment of 26 November 1998 (C‑7/97, ‘the judgment in Bronner’, EU:C:1998:569).

3Decision No 332 of 4 April 2023 (‘the NCA decision’).

4Judgment of 12 January 2023, Lietuvos geležinkeliai v Commission (C‑42/21 P, ‘the judgment in LG’, EU:C:2023:12).

5Communication from the Commission – Guidance on the Commission’s enforcement priorities in applying Article 82 [EC] to abusive exclusionary conduct by dominant undertakings (OJ 2009 C 45, p. 7).

6See the judgments in Bronner, paragraph 41; in LG, paragraph 79; and of 10 September 2024, Google and Alphabet v Commission (Google Shopping) (C‑48/22 P, ‘the judgment in Google Shopping’, EU:C:2024:726, paragraph 89).

7Judgment of 25 March 2021, Slovak Telekom v Commission (C‑165/19 P, ‘the judgment in Slovak Telekom’, EU:C:2021:239, paragraph 46 and the case-law cited).

8See Opinion of Advocate General Jacobs in Bronner (C‑7/97, EU:C:1998:264, point 57).

9These same concerns are also echoed in the case-law of the United States Supreme Court (Verizon Communications, Inc. v. Law Offices of Curtis v. Trinko, LLP, 540 US No 02-682 (2004)).

10The judgment in LG, paragraphs 86 and 87. The refusal by a dominant undertaking to grant access to an infrastructure which it has at its disposal after having ‘inherited’ for free from the public authorities the right to use it must be analysed not in the light of the specific criteria of the judgment in Bronner, but under the general criteria of Article 102 TFEU, as an autonomous form of abuse (the judgment in LG, paragraph 91 and the case-law cited).

11The judgment in LG, paragraph 88 and the case-law cited.

12See, to that effect, the judgment in LG, paragraph 88.

13The judgment in Google Shopping, paragraph 90.

14Respectively, the judgments in Slovak Telekom, paragraphs 59 and 60, and in LG, paragraph 91.

15Judgment of 25 February 2025, Alphabet and Others

(C‑233/23, EU:C:2025:110, paragraph 44).

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16See, to that effect, judgment of 17 February 2011, TeliaSonera Sverige (C‑52/09, EU:C:2011:83, paragraph 58).

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17See, for instance, judgments of 6 December 2012, AstraZeneca v Commisson (C‑457/10 P, EU:C:2012:770), in which the Court found that the misuse of patents to delay generics was abusive because it excluded competitors and innovation, even though the IP rights were held lawfully; of 17 February 2011, TeliaSonera Sverige (C‑52/09, EU:C:2011:83, paragraphs 60 to 77); in Slovak Telekom, paragraphs 50, 51 and 109, stressing exclusionary effects; of 12 May 2022, Servizio Elettrico Nazionale and Others (C‑377/20, EU:C:2022:379), in which the Court found that the use of historic customer data could be abusive if it was capable of foreclosing competitive offers, regardless of the dominant undertaking’s legacy entitlement to those data; in LG, paragraph 134, stressing foreclosure effects; and in Google Shopping, where the Court held that self-preferencing must be assessed under an effects-based analysis. See also judgments of 17 September 2007, Microsoft v Commission (T‑201/04, EU:T:2007:289), focusing on harm to innovation and consumers, and of 25 October 2023, Bulgarian Energy Holding and Others v Commission (T‑136/19, ‘the judgment in Bulgarian Energy Holding’, EU:T:2023:669, paragraph 235 et seq.), annulling the Commission decision in question because ‘exclusionary effects must not be purely hypothetical’.

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18See the judgment in LG, paragraph 78 and the case-law cited.

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19See, for instance, the judgment in LG, paragraphs 75 and 78 and the case-law cited.

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20See, for instance, the judgment in Google Shopping, paragraph 158 (the Court rejected that the Commission’s assessment had been purely speculative, finding that it had justified its analysis on the basis (i) of suspect elements in the light of competition law, and (ii) of specific relevant circumstances relating to the nature of the infrastructure giving rise to that difference in treatment).

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21See, for instance, the judgment in LG, paragraph 88.

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22Judgment of 4 October 2024, Bezirkshauptmannschaft Landeck (Attempt to access personal data stored on a mobile telephone) (C‑548/21, EU:C:2024:830, paragraph 41 and the case-law cited).

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23Judgment of 28 March 2019, Cogeco Communications (C‑637/17, EU:C:2019:263, paragraph 35 and the case-law cited).

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24The judgment in LG, paragraph 86.

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25That was the case until a regulatory obligation was imposed. See point 14 of the present Opinion.

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26Indeed, an analogous line of argument has already been raised before the Court. See, for instance, the case which gave rise to the judgment in Slovak Telekom. Moreover, contrary to the General Court’s judgment in that case, on appeal, the Court of Justice did not base its judgment on the State-monopoly origin of the dominance, but on the existence of a regulatory access obligation and the nature of the conduct.

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27Judgment of 21 May 2019, Commission v Hungary (Usufruct over agricultural land) (C‑235/17, EU:C:2019:432, paragraph 67 et seq.).

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28Judgment of 20 September 2001, Banks (C‑390/98, EU:C:2001:456, paragraph 77).

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29Commission Decision of 11 June 1992 relating to a proceeding under Article 86 of the EEC Treaty (IV/34.174 – Sealink/B&I – Holyhead: Interim measures), available at https://ec.europa.eu/competition/antitrust/cases/dec_docs/34174/34174_2_2.pdf; and Commission Decision of 21 December 1993 relating to a proceeding pursuant to Article 86 [EC] Treaty (IV/34.689 – Sea Containers v. Stena Sealink – Interim measures) (OJ 1994 L 15, p. 8).

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30Judgment of 6 April 1995 (C‑241/91 P and C‑242/91 P, EU:C:1995:98, paragraph 53 et seq.).

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31Judgment of 29 April 2004 (C‑418/01, EU:C:2004:257, paragraph 28 et seq.).

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32The appeal to the Court of Justice is currently pending. In the judgment in Bulgarian Energy Holding, the General Court confirmed the application of the Bronner test in paragraphs 250 to 269.

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33Judgment of 29 April 2004 (C‑418/01, EU:C:2004:257, paragraphs 28 and 29).

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34C‑333/21, EU:C:2022:993, point 138 (emphasis added).

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35In an abusive refusal to grant access to an essential facility, competition is eliminated and, without such access, competition may not thrive.

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36C‑7/97, EU:C:1998:264, point 43.

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37See the judgment in Bulgarian Energy Holding, paragraph 261 et seq. and the Commission’s decision in that case (which was annulled by the General Court on other grounds). The Bulgarian Energy Holding Group argued that it could not be liable for a refusal to grant access as it was neither the owner of the facility at issue nor the transmission system operator. That argument was rejected by the General Court.

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38Such as obligations to provide to the dominant undertaking’s competitors third-party access to the facility, especially in network industries.

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39Facilities subject to a regulatory access obligation are those that are already subject to a sector-specific regulatory obligation to give access to third parties, such as telecommunications networks under local-loop unbundling rules, energy grids or railway infrastructure where regulation requires open access on regulated terms.

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40The judgment in LG, paragraph 89. See also the judgment in Slovak Telekom, paragraphs 57 to 60 (given, inter alia, the regulatory ex ante access obligation, the indispensability does not need to be demonstrated). Moreover, in paragraph 51 of that judgment, the Court explained that while access restrictions can constitute a form of abuse where they are able to give rise to at least potentially anticompetitive effects, or exclusionary effects, they cannot be equated to a simple refusal to allow a competitor access to the infrastructure, since the competent competition authority or national court will not have to force the dominant undertaking to give access to its infrastructure, as that access has already been granted. The measures that would be taken in such a context will thus be less detrimental to the freedom of contract of the dominant undertaking and to its right to property than forcing it to give access to its infrastructure where it has reserved that infrastructure for the needs of its own business.

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41The judgment in LG, paragraphs 88 and 89 and the case-law cited.

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42Ibid., paragraph 88.

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43The judgment in Slovak Telekom, paragraph 57.

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44By Decision No 172 of the Council of Ministers of the Republic of Bulgaria of 22 March 2011, the Bulgarian State granted the service concession at the Rosenets port terminal.

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45Article 32(2) of the concession contract between the Republic of Bulgaria and LUKOIL Neftohim Burgas AD; available at https://nkr.government.bg/ConcessionaireProcedures/ConcessionaireProcedureInfo/b5b444ae-11f9-4bbc-9557-fa3250ce48a6.

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46Article 32(6) of that concession contract. In relation to the infrastructure that was privatised, the referring court indicates that the Bulgarian State has certain influence over the decision-making power of Lukoil Burgas as well as the fact that the infrastructure in question is of strategic importance under Bulgarian law.

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47See, to that effect, the judgment in LG, paragraph 88.