Under the EU’s long-standing refusal to deal case law, a dominant firm would be required to grant third parties access to its assets only under strict conditions, including evidence that access was indispensable for the third party’s ability to compete. But, following the Court of Justice’s (“ECJ”) Android Auto/Enel judgment, these strict conditions no longer apply when a third party seeks access to an “open” digital platform – a platform designed in part for third party use. Denying a third party access to an open (dominant) platform can infringe Article 102 if the third party can credibly claim that the platform provides an attractive channel to reach consumers.

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