19.6.2023

Official Journal of the European Union

C 216/29

(Case C-233/23, Alphabet and Others)

(2023/C 216/39)

Language of the case: Italian

Referring court

Parties to the main proceedings

Appellants: Alphabet Inc., Google LLC and Google Italy Srl

Respondent: Autorità Garante della Concorrenza e del Mercato

Other parties to the proceedings: Enel X Italia Srl and Enel X Way Srl

Questions referred

1.Must the requirement that the product that is the subject of a refusal to supply be indispensable be interpreted, for the purposes of Article 102 TFEU, as meaning that access must be indispensable to the exercise of a particular activity in a neighbouring market, or is it sufficient that access be indispensable for a more convenient use of the product or service offered by the undertaking requesting access, especially where the essential function of the product that is the subject of the refusal to supply is to make it easier and more convenient to use existing products or services?

2.Is it possible, in the context of conduct constituting a refusal to supply, to consider behaviour to be abusive, within the meaning of Article 102 TFEU, in a situation where, notwithstanding the lack of access to the requested product, (i) the undertaking requesting access was already active in the market and had continued to grow within that market throughout the period of the alleged abuse and (ii) other operators competing with the undertaking requesting access to the product had continued to operate in the market?

3.Must Article 102 TFEU, in the context of abuse consisting in a refusal to grant access to an allegedly indispensable product or service, be interpreted as meaning that the fact that the product or service did not exist at the time of the request to supply must be taken into consideration as an objective justification for that refusal, or, at least, is a competition authority required to conduct an analysis, based on objective elements, of the time needed for a dominant undertaking to develop the product or service in respect of which access has been requested, or must the dominant undertaking, given the responsibility it has within the market, be required to inform the undertaking requesting access of the time required to develop the product?

4.Must Article 102 TFEU be interpreted as meaning that a dominant undertaking that has control over a digital platform may be required to modify its own products, or to develop new ones, so that those who so request may access such products? In that case, is a dominant undertaking required to consider the general requirements of the market or the requirements of a single undertaking requesting access to the allegedly indispensable input, or, at least, given the special responsibility it has within the market, to lay down in advance objective criteria for reviewing the requests that it receives and for ranking them in order of priority?

5.Must Article 102 TFEU, in the context of abuse consisting in a refusal to grant access to an allegedly indispensable product or service, be interpreted as meaning that a competition authority is required to define and identify in advance the relevant downstream market to which the abuse applies, and can this market also be only potential?