1. Introduction

Access regulation for dominant infrastructures concerns situations where one undertaking controls infrastructure that competitors need in order to operate in a related or downstream market.

Examples include:

• railway tracks and terminals;
• ports and port facilities;
• electricity and gas networks;
• telecommunications networks and local loops;
• payment and clearing infrastructure;
• essential financial-market infrastructure;
• pipelines and storage facilities;
• digital platforms and technical interfaces;
• other facilities that competitors cannot reasonably duplicate.

The central competition-law problem is the tension between two principles:

1. A dominant undertaking normally has freedom to decide how to use its property and infrastructure.
2. That freedom cannot always be used to exclude competitors where access to the infrastructure is indispensable or where regulation already requires access.

Under EU competition law, Article 102 TFEU is particularly important. The Court of Justice treats a dominant undertaking as having a special responsibility not to undermine genuine competition.

2. Meaning of Dominant Infrastructure

A dominant infrastructure is generally an infrastructure controlled by an undertaking that possesses substantial market power and that gives the undertaking an important competitive advantage over downstream competitors.

The infrastructure may be physical or functional.

Physical infrastructure

Examples:

• railway networks;
• ports;
• pipelines;
• electricity grids;
• telecommunications networks;
• airports;
• storage terminals.

Financial infrastructure

Examples:

• payment systems;
• clearing systems;
• settlement systems;
• financial-market infrastructure.

Digital infrastructure

Examples:

• app stores;
• operating-system interfaces;
• interoperability systems;
• platform access points;
• technical APIs or data interfaces.

The important issue is not simply whether the infrastructure is large or important. Competition law asks whether the undertaking's control over it can be used to foreclose competitors or distort downstream competition.

3. Essential Facilities Doctrine

The essential facilities doctrine is particularly relevant.

It addresses circumstances in which a dominant undertaking refuses to provide competitors with access to infrastructure or facilities that are necessary for competing.

However, competition law does not automatically require every dominant undertaking to share every facility.

The classic EU test comes from Bronner.

The Court established three important conditions for a refusal to supply involving infrastructure developed and owned by the dominant undertaking:

1. access must be indispensable;
2. refusal must be capable of eliminating competition from the requesting undertaking; and
3. the refusal must lack objective justification. 

Indispensability means more than convenience. The relevant competitor must generally lack an actual or potential substitute, taking into account technical, legal and economic obstacles to developing an alternative.

4. Why Access Regulation Is Important

Access regulation is particularly important in industries characterized by natural monopoly or very high duplication costs.

For example, constructing multiple parallel railway networks in the same geographic area may be economically inefficient.

Similarly:

• duplicating national electricity transmission networks may be impractical;
• building competing nationwide telecommunications local loops may be extremely expensive;
• duplicating major port infrastructure may be difficult;
• constructing parallel pipelines may not be commercially viable.

Regulation can therefore require the infrastructure operator to provide access to other businesses.

This can allow:

Infrastructure operator → wholesale access → competing downstream businesses → consumers

rather than:

Infrastructure operator → exclusive control → downstream foreclosure

5. Regulation and Competition Law Are Closely Connected

One of the most important developments in the case law is the distinction between:

A. Pure refusal to deal

A dominant undertaking owns infrastructure that it developed for itself and refuses access.

Here, the strict Bronner conditions can become relevant.

B. Regulated access

The undertaking is already legally or regulatorily required to provide access.

Here, the analysis can be different.

The Court has explained that where a dominant undertaking is subject to a regulatory obligation to provide access, the strict Bronner conditions do not necessarily govern the assessment of conduct concerning that regulated access.

This distinction is extremely important in telecommunications, railways, energy and other regulated network industries.

6. Six Important Case Laws

Case 1 — Oscar Bronner GmbH v Mediaprint

Case: C-7/97
Year: 1998

Facts

Oscar Bronner operated a newspaper and wanted access to Mediaprint's newspaper-delivery system.

Bronner argued that the delivery system was effectively an essential facility because creating an equivalent nationwide delivery network would be difficult.

Decision

The Court did not treat the delivery system as an infrastructure that automatically had to be shared.

It established the stringent conditions for a refusal-to-supply claim.

The facility must be indispensable, the refusal must threaten the elimination of effective competition, and the refusal must lack objective justification.

Importance

Bronner established the basic framework for determining when competition law can require a dominant infrastructure operator to provide access.

Principle

Dominance alone does not create a general obligation to share infrastructure.

Case 2 — IMS Health GmbH & Co. OHG v NDC Health

Case: C-418/01
Year: 2004

Facts

The dispute concerned pharmaceutical sales-data structures and intellectual-property rights.

IMS Health controlled a particular system for organizing pharmaceutical sales information, and competitors sought access to it.

Decision

The Court treated compulsory access to an intellectual-property-related facility as an exceptional remedy.

The circumstances included indispensability, potential elimination of competition and the emergence of a new product or service for which there was consumer demand.

The case therefore reinforced the idea that forced access should not become an ordinary remedy simply because access would make competition easier.

Importance

IMS Health is important because it demonstrates that the essential-facilities principle can intersect with intellectual property and infrastructure-like information systems.

It also emphasizes the exceptional character of compulsory access.

Case 3 — Deutsche Telekom v Commission

Case: C-280/08 P
Year: 2010

Facts

Deutsche Telekom controlled important telecommunications infrastructure and was subject to regulatory rules concerning wholesale access.

The Commission examined the relationship between regulated wholesale prices and Deutsche Telekom's retail prices.

Decision

The Court upheld the finding concerning a margin squeeze.

The case demonstrated that a dominant infrastructure operator cannot necessarily escape Article 102 scrutiny merely because its conduct occurs within a regulated sector.

The regulatory framework itself can be relevant to determining whether conduct is abusive.

Importance

The case illustrates that access regulation and competition law can operate together.

Regulation may establish an obligation to provide access, while competition law can address the manner in which that access is supplied.

Principle

Regulation does not automatically immunize a dominant infrastructure operator from competition law.

Case 4 — Slovak Telekom v Commission

Case: C-165/19 P
Year: 2021

Facts

Slovak Telekom controlled the local telecommunications network.

Its local loop was subject to regulatory unbundling obligations, allowing alternative operators to obtain access.

The Commission found problems involving, among other things:

• withholding information;
• restrictions on access;
• unfair conditions;
• pricing practices affecting competitors. 

Decision

The Court clarified the relationship between regulated access and the Bronner test.

Where the dominant undertaking is already required to provide access, the strict Bronner conditions do not necessarily apply to every form of abusive access conduct.

In particular, where access is provided but on unfair or restrictive terms, Bronner's indispensability requirement does not automatically control the analysis.

Importance

This is one of the most important modern access cases.

It distinguishes:

Refusal of access

from

Manipulation or restriction of already-regulated access.

Case 5 — Lietuvos geležinkeliai v Commission

Case: C-42/21 P
Year: 2023

Facts

The case concerned railway infrastructure and access to a railway route.

The infrastructure had important historical connections with a former state monopoly.

The case therefore raised questions about whether the strict Bronner framework should apply where infrastructure originates from a state-controlled or regulated environment.

Decision

The Court emphasized that the Bronner conditions are connected to situations where a dominant undertaking has developed infrastructure for its own business and has ownership or comparable control over it.

Where regulatory obligations or public-authority involvement significantly constrain the undertaking's ability to deny access, the situation can be materially different.

Importance

The case is highly relevant to:

• railway infrastructure;
• former state monopolies;
• privatization;
• public infrastructure;
• concessions;
• regulated network industries.

It shows why the origin and legal control of infrastructure can matter in an access dispute.

Case 6 — Clearstream Banking AG v Commission

Case: T-301/04
Year: 2009

Facts

Clearstream operated important financial-market clearing and settlement services.

A dispute arose concerning access to cross-border clearing and settlement services.

The Commission found abusive conduct involving refusal or delay in supplying services and discriminatory treatment.

Decision

The General Court upheld the relevant findings.

It recognized that refusal or unreasonable delay in providing access, combined with discriminatory treatment, could place competitors at a competitive disadvantage.

Importance

Clearstream is particularly significant because it applies access principles to financial-market infrastructure rather than traditional physical networks.

It demonstrates that infrastructure can be economically essential even when it consists primarily of specialized financial services.

7. Additional Important Case — Google Shopping

Case: C-48/22 P
Judgment: 2024

Google Shopping is relevant to modern digital infrastructure.

The Court emphasized that Article 102 does not prohibit dominance itself. The question is whether the conduct of the dominant undertaking constitutes abusive conduct capable of restricting competition.

The case is important for understanding how competition law can apply where a dominant digital infrastructure or platform gives preferential treatment to its own services.

The case therefore illustrates a broader principle:

Access problems in modern markets may concern visibility, interoperability, technical access or platform functionality rather than simply physical entry to a facility.

8. Main Legal Tests

Test 1 — Indispensability

The infrastructure must generally be genuinely indispensable in the relevant refusal-of-access situation.

A cheaper, less convenient or less efficient substitute may still matter when determining whether the facility is truly indispensable.

Test 2 — Elimination of Competition

The refusal must be capable of substantially eliminating effective competition from the undertaking requesting access.

The purpose is not merely to protect one competitor from commercial difficulty.

The focus is on the competitive structure of the downstream market.

Test 3 — Objective Justification

A dominant undertaking may have legitimate reasons for refusing or restricting access.

Possible issues can include:

• capacity constraints;
• technical limitations;
• safety;
• security;
• legitimate investment protection;
• operational requirements;
• regulatory restrictions.

The justification must be assessed objectively rather than merely asserted.

9. Access Conditions Can Also Be Abusive

Competition law is not limited to complete refusal.

A dominant infrastructure operator can potentially create competitive problems through:

Excessive access charges

Very high charges may make downstream competition commercially impossible.

Discriminatory access

Competitors may receive worse conditions than the infrastructure operator's own downstream business.

Delays

Unreasonable delays can make access practically ineffective.

Clearstream illustrates the importance of unreasonable delays and discriminatory access conditions.

Technical restrictions

The operator may technically provide access while making effective use of the infrastructure unnecessarily difficult.

Information withholding

A competitor may formally have access but lack the technical information necessary to use it effectively.

Slovak Telekom specifically involved issues concerning information necessary for local-loop access.

Margin squeeze

A dominant operator may charge wholesale access prices while maintaining retail prices at levels that make effective downstream competition difficult.

Deutsche Telekom is a leading example.

10. Ex Ante Regulation vs Ex Post Competition Law

This distinction is central.

The two systems can therefore be complementary rather than mutually exclusive.

11. Non-Discrimination

A major principle in infrastructure access is equal treatment.

Suppose a dominant railway operator provides:

• its own subsidiary with 24-hour access;
• Competitor A with 48-hour access;
• Competitor B with 72-hour access.

Competition authorities may examine whether the differences have an objective justification.

The same logic can arise in:

• telecommunications;
• ports;
• energy;
• financial infrastructure;
• digital platforms.

Clearstream demonstrates how discriminatory provision of comparable services can be treated as part of abusive conduct.

12. Pricing Regulation

Access regulation frequently requires a methodology for determining access prices.

Possible regulatory approaches include:

• cost-based pricing;
• long-run incremental cost;
• average incremental cost;
• retail-minus approaches;
• regulated rate-of-return models;
• benchmarking;
• negotiated access subject to competition-law safeguards.

The choice depends on the industry and regulatory framework.

The central competition concern is that an infrastructure operator should not be able to use its control of an essential input to make downstream competition commercially impossible.

13. Infrastructure Investment Problem

Mandatory access creates an important economic policy tension.

If an infrastructure owner knows that competitors will automatically obtain access, the owner may have less incentive to invest in new infrastructure.

The Court has expressly recognized this concern: overly easy access obligations can reduce incentives for undertakings to develop competing infrastructure and can reduce incentives to invest in efficient facilities.

Therefore, access regulation attempts to balance:

Competition + consumer access

against

Property rights + investment incentives + infrastructure development

14. Publicly Created Infrastructure

The analysis may change where infrastructure was:

• created by the State;
• financed with public funds;
• transferred through privatization;
• operated under a concession;
• subject to statutory access obligations.

Recent EU jurisprudence has emphasized that where public-law obligations significantly restrict the infrastructure operator's autonomy to exclude third parties, the situation may not be comparable to a private undertaking that independently built infrastructure for its own business.

This is especially important for:

• railways;
• ports;
• energy infrastructure;
• airports;
• telecommunications;
• petroleum infrastructure.

15. Modern Digital Infrastructure

The concept has increasingly moved beyond physical infrastructure.

Digital infrastructure can include:

• app stores;
• operating systems;
• search engines;
• payment interfaces;
• interoperability tools;
• data access systems;
• platform APIs;
• technical standards.

The legal question may be framed differently from traditional essential-facility cases.

For example, a digital platform might technically allow access but simultaneously:

• rank its own service preferentially;
• restrict interoperability;
• make competitor access technically inferior;
• impose discriminatory terms;
• restrict access to important data.

Modern EU case law therefore examines the actual competitive effects and circumstances of the conduct, rather than automatically treating every platform-access dispute as a Bronner refusal-to-supply case.

16. Regulatory Remedies

Where an infringement is established, possible remedies can include:

1. Mandatory access

The operator must provide access to qualifying competitors.

2. Non-discrimination

Comparable users must receive comparable conditions unless objectively justified.

3. Transparent terms

Access conditions must be sufficiently clear and predictable.

4. Price controls

A regulator may establish or supervise access charges.

5. Accounting separation

The infrastructure business may be separated financially from competitive downstream activities.

6. Information obligations

The infrastructure operator may have to provide technical information necessary for effective access.

7. Interoperability

Digital or technical systems may be required to work with competing systems.

8. Monitoring

A regulator or competition authority may supervise compliance.

17. Key Principles From the Case Law

18. Conclusion

Competition law concerning dominant infrastructures is fundamentally about balancing access and investment.

The modern approach does not say that every dominant infrastructure must automatically be shared. Instead, the legal analysis asks:

1. Who controls the infrastructure?
2. Is the undertaking dominant?
3. Is access legally regulated?
4. Is the infrastructure indispensable?
5. Is there a genuine substitute?
6. Has access been refused, restricted, delayed or made discriminatory?
7. Does the conduct restrict downstream competition?
8. Is there an objective justification?
9. Would mandatory access affect investment incentives?
10. What remedy is proportionate to the competitive problem?

The development from Bronner → Deutsche Telekom → Slovak Telekom → Lietuvos geležinkeliai shows an increasingly nuanced distinction between a privately developed facility that a dominant undertaking seeks to reserve for itself and infrastructure whose access is already shaped by public regulation, statutory obligations, concessions or inherited monopoly structures.