Competition Law and Collaborative Infrastructure Competition Law

Introduction

Collaborative infrastructure refers to arrangements in which competitors, infrastructure owners, technology providers, public authorities, or industry participants jointly develop, finance, operate, access, or share infrastructure. Examples include:

• telecommunications towers and networks;
• electricity transmission and distribution infrastructure;
• ports, railways and airports;
• payment and digital infrastructure;
• cloud and data infrastructure;
• EV charging networks;
• logistics and warehousing infrastructure;
• pipelines and energy terminals; and
• shared research, testing and technical facilities.

Such collaboration can be pro-competitive because it reduces duplication of expensive infrastructure, lowers entry barriers, improves interoperability, increases capacity utilisation and may accelerate technological development. At the same time, collaboration can create competition risks where competitors use a joint infrastructure arrangement to exchange competitively sensitive information, exclude rivals, coordinate prices or output, discriminate against access seekers, or strengthen collective market power.

The central competition-law question is therefore not simply whether infrastructure is shared, but how the collaboration is structured, who controls it, who receives access, and whether the arrangement restricts competition beyond what is reasonably necessary to achieve legitimate efficiencies.

1. Meaning of Collaborative Infrastructure

Collaborative infrastructure may take several forms:

A. Joint ownership

Competitors jointly own physical infrastructure.

Examples:
Two telecommunications companies jointly owning towers or fibre networks; competing energy companies jointly owning a pipeline.

B. Infrastructure-sharing agreements

One operator permits competitors to use infrastructure.

Examples include:

• tower sharing;
• fibre sharing;
• rail-track access;
• port facilities;
• electricity grids;
• charging stations;
• cloud infrastructure.

C. Joint ventures

Competitors establish a separate entity to build and operate infrastructure.

D. Industry-wide infrastructure platforms

Several market participants contribute resources to a common platform or technical infrastructure.

E. Public-private infrastructure collaboration

Private competitors cooperate with government or public infrastructure operators.

F. Digital infrastructure collaboration

Modern infrastructure collaboration increasingly involves:

• cloud computing;
• APIs;
• data centres;
• payment rails;
• digital identity;
• interoperability systems;
• AI computing infrastructure; and
• telecommunications networks.

2. Why Competition Law Becomes Relevant

Infrastructure collaboration occupies a difficult position because it can simultaneously produce efficiencies and competitive risks.

Potential benefits

Collaborative infrastructure can:

1. reduce capital expenditure;
2. eliminate unnecessary duplication;
3. improve network coverage;
4. increase infrastructure utilisation;
5. facilitate entry by smaller firms;
6. promote interoperability;
7. improve resilience;
8. accelerate technological development;
9. reduce consumer prices; and
10. promote environmental objectives.

However, the same arrangement can potentially:

• facilitate cartelisation;
• create collective dominance;
• foreclose competitors;
• restrict access;
• discriminate between users;
• raise rivals' costs;
• exchange confidential information;
• create switching barriers; or
• reinforce an existing dominant position.

3. Relevant Competition-Law Framework

The legal analysis generally involves four principal questions.

I. Is the collaboration an agreement between competitors?

Competition authorities first determine whether the infrastructure arrangement constitutes an agreement, coordination, concerted practice or joint venture.

The existence of a formal contract is not always decisive. Informal coordination may also raise competition concerns.

II. Does the collaboration restrict competition?

Authorities examine whether the arrangement:

• fixes prices;
• allocates customers or territories;
• restricts output;
• limits capacity;
• coordinates investment;
• exchanges strategic information; or
• restricts independent commercial decision-making.

A collaboration that goes beyond infrastructure cooperation and coordinates the parties' downstream competitive behaviour presents a substantially greater risk.

III. Does the collaboration create or strengthen market power?

The analysis considers:

• market shares;
• control over essential infrastructure;
• barriers to entry;
• network effects;
• switching costs;
• alternative infrastructure;
• vertical integration;
• interoperability; and
• countervailing buyer power.

IV. Are there legitimate efficiencies?

An infrastructure agreement may generate significant efficiencies.

Authorities may therefore consider whether restrictions are:

• objectively necessary;
• proportionate;
• connected to the infrastructure project; and
• accompanied by benefits that ultimately reach consumers or improve market outcomes.

4. Essential Facilities and Infrastructure Access

One of the most important doctrines in this area is the essential facilities doctrine.

A facility may become competitively significant where:

1. it is controlled by an undertaking with substantial market power;
2. competitors cannot reasonably reproduce it;
3. access is necessary for effective competition; and
4. denial or discriminatory access can substantially impair competition.

Examples could include:

• electricity grids;
• railway infrastructure;
• telecommunications networks;
• ports;
• pipelines;
• payment systems; and
• certain digital infrastructure.

However, not every important facility is automatically an essential facility. Competition authorities generally examine whether realistic alternatives exist and whether access is genuinely indispensable.

5. Information Exchange Through Infrastructure Collaboration

This is one of the most important risks.

Competitors sharing infrastructure may necessarily exchange operational information. However, information can become competitively sensitive when it concerns:

• future prices;
• capacity expansion;
• investment plans;
• customers;
• production volumes;
• costs;
• output;
• business strategies; or
• future market conduct.

Example

Suppose three competing telecommunications operators establish a common network.

Sharing information necessary to maintain the network may be legitimate.

But if the same platform allows them to see each other's:

future prices + customer acquisition plans + capacity plans + investment decisions

the infrastructure collaboration could facilitate coordinated conduct.

Therefore, information governance should be separated from technical infrastructure governance.

6. Joint Investment and Capacity Coordination

Collaborative infrastructure frequently requires competitors to coordinate investments.

This can produce efficiencies, but it may also reduce independent competition.

For example, competing energy companies jointly determine:

• how much capacity to build;
• when to expand;
• where to construct facilities; and
• how much capacity each competitor will receive.

If those decisions affect downstream competition, the arrangement may facilitate coordination.

Competition authorities may therefore examine whether the collaboration removes an important dimension of independent competition.

7. Infrastructure Sharing and Market Foreclosure

A dominant infrastructure operator may use collaboration to exclude competitors.

Possible strategies include:

• refusing access;
• charging discriminatory access fees;
• giving preferential access to affiliated companies;
• delaying access;
• degrading technical quality;
• imposing unreasonable interoperability requirements;
• tying infrastructure access to other services; or
• imposing exclusivity obligations.

This can transform an apparently neutral infrastructure arrangement into an exclusionary abuse of market power.

8. Vertical Foreclosure

Collaborative infrastructure can also create vertical competition problems.

Consider:

Infrastructure owner → infrastructure access → downstream competitors

If the infrastructure owner also operates downstream, it may have incentives to disadvantage competing downstream firms.

Potential conduct includes:

• higher access prices for rivals;
• lower quality;
• delayed connection;
• preferential technical standards;
• discriminatory maintenance;
• data advantages; or
• capacity reservations for affiliates.

This is particularly relevant in telecommunications, energy, digital platforms and transport.

9. Interoperability

Interoperability is increasingly central to infrastructure competition.

A collaborative infrastructure system may establish technical standards that determine whether competitors can participate.

Competition concerns arise where:

• standards are deliberately designed to exclude rivals;
• membership is restricted;
• interoperability is withheld;
• proprietary standards are used strategically; or
• a dominant participant controls the standard-setting process.

At the same time, common standards can be highly pro-competitive because they allow different networks and technologies to communicate.

10. Standard-Setting and Collaborative Infrastructure

Industry associations frequently create common technical standards.

Competition law distinguishes between:

Legitimate standardisation

Standards that:

• improve interoperability;
• reduce transaction costs;
• promote safety;
• increase compatibility; and
• are accessible on reasonable terms.

Potentially problematic standardisation

Where competitors use the process to:

• exclude a rival technology;
• fix prices;
• restrict innovation;
• divide markets; or
• impose discriminatory licensing conditions.

This makes governance of the standard-setting organisation extremely important.

11. Six Important Case Laws

The following cases are particularly useful for understanding competition law principles applicable to collaborative infrastructure.

1. United States v. Terminal Railroad Association of St. Louis

224 U.S. 383 (1912)

Facts

Several railroad companies controlled terminal facilities necessary for efficient rail access into St. Louis.

The infrastructure was effectively controlled by a combination of competing railway interests.

Issue

Whether collective control over an indispensable transportation facility could unlawfully exclude competitors.

Decision

The U.S. Supreme Court found that the arrangement could substantially restrict competition and required measures to provide access on non-discriminatory terms.

Principle

The case is one of the foundational authorities for the essential facilities concept.

Importance for collaborative infrastructure

Where competitors jointly control infrastructure that rivals cannot reasonably duplicate, competition law may require access arrangements that prevent exclusionary effects.

2. MCI Communications Corp. v. AT&T

708 F.2d 1081 (7th Cir. 1983)

Facts

MCI alleged that AT&T had improperly denied access to telecommunications facilities and networks.

Issue

Whether denial of access to infrastructure controlled by a dominant undertaking could constitute unlawful monopolisation.

Decision

The court developed a frequently cited four-part framework for the essential-facilities doctrine.

Principle

The traditional test focused on:

1. control of the essential facility by a monopolist;
2. inability of competitors reasonably to duplicate it;
3. denial of use; and
4. feasibility of providing access.

Importance

The case illustrates how telecommunications infrastructure can become a competition-law bottleneck.

3. Bronner v. Mediaprint

Case C-7/97, EU Court of Justice

Facts

Bronner operated a newspaper but did not have access to Mediaprint's nationwide newspaper-delivery system.

Bronner sought access to the dominant undertaking's distribution network.

Issue

Whether refusal to provide access constituted an abuse of dominant position.

Decision

The Court applied a strict test for compulsory access.

The facility had to be indispensable, and there had to be no actual or potential substitute.

Principle

Indispensability is critical.

Competition law does not generally require a dominant undertaking to share every commercially valuable infrastructure facility with competitors.

Infrastructure significance

The case demonstrates the balance between:

access to infrastructure
and
property and investment incentives.

4. Oscar Bronner GmbH & Co. KG v. Mediaprint

Although commonly referred to simply as Bronner, the case is particularly important for distinguishing between:

• a genuinely indispensable infrastructure;
• infrastructure that merely provides a competitive advantage; and
• infrastructure that competitors could reasonably reproduce.

This distinction remains relevant to modern:

• digital infrastructure;
• cloud platforms;
• data networks;
• logistics infrastructure; and
• telecommunications systems.

5. IMS Health GmbH & Co. KG v. NDC Health

Case C-418/01, EU Court of Justice

Facts

IMS Health operated a system for organising pharmaceutical sales data.

Competitors sought access to the system.

Issue

Whether refusal to license a protected infrastructure or information system could constitute abuse of dominance.

Decision

The Court identified stringent conditions for compulsory licensing.

Principle

Compulsory access is exceptional and requires factors such as:

• indispensability;
• elimination of effective competition;
• prevention of a new product or service; and
• lack of objective justification.

Infrastructure relevance

The case is highly relevant to data infrastructure and digital infrastructure, where proprietary systems may become critical inputs for competitors.

6. Slovak Telekom a.s. v European Commission

Joined Cases C-165/19 P and C-165/19 P-related proceedings

Facts

Slovak Telekom, part of the Deutsche Telekom group, operated telecommunications infrastructure and was found to have engaged in conduct concerning access to its network.

Issue

The case concerned exclusionary conduct involving access to telecommunications infrastructure.

Decision

The EU courts upheld important aspects of the Commission's enforcement approach concerning abusive conduct involving access to telecommunications networks.

Principle

A dominant infrastructure operator cannot necessarily use control over network infrastructure to disadvantage downstream competitors.

Importance

The case demonstrates the particular competition sensitivity of telecommunications infrastructure and access obligations.

7. Deutsche Telekom AG v European Commission

Case C-280/08 P

Facts

Deutsche Telekom charged competitors for access to its telecommunications network while competing with them downstream.

Issue

Whether the pricing structure could constitute an exclusionary abuse.

Decision

The EU Court of Justice upheld the finding of a margin-squeeze abuse.

Principle

A dominant infrastructure provider may violate competition law where the relationship between:

wholesale access prices + downstream prices

leaves competitors unable to compete effectively.

Importance

This principle applies beyond telecommunications to other vertically integrated infrastructure industries.

8. Bronner, IMS Health and Deutsche Telekom Compared

Together, these cases demonstrate that competition law attempts to balance access, competition, innovation and investment incentives.

9. Collaborative Infrastructure and Joint Ventures

Infrastructure joint ventures require separate examination.

A joint venture may be legitimate where competitors create a separate entity to construct infrastructure that would be inefficient to duplicate.

However, competition concerns increase where the joint venture also coordinates:

• prices;
• customers;
• output;
• investments;
• product development; or
• market allocation.

Example

Two competing airlines may jointly develop airport infrastructure.

The infrastructure cooperation may create efficiencies.

But if they additionally agree on:

• ticket prices;
• routes;
• capacity;
• customers; and
• future expansion,

the arrangement moves beyond infrastructure collaboration and raises more serious horizontal concerns.

10. Infrastructure Sharing in Telecommunications

Telecommunications provides a classic example.

Operators may share:

• towers;
• fibre;
• spectrum-related infrastructure;
• ducts;
• backhaul;
• passive infrastructure; and
• sometimes active network components.

Benefits

Infrastructure sharing can:

• reduce deployment costs;
• expand rural coverage;
• accelerate 5G deployment;
• reduce duplication; and
• facilitate entry.

Competition concerns

Authorities may examine:

• geographic market sharing;
• price coordination;
• information exchange;
• network quality coordination;
• foreclosure;
• discriminatory access;
• coordinated investment reduction; and
• exclusion of smaller operators.

11. Infrastructure Collaboration in Energy Markets

Energy infrastructure is particularly susceptible to competition concerns because networks can possess natural-monopoly characteristics.

Examples include:

• electricity transmission grids;
• gas pipelines;
• LNG terminals;
• hydrogen pipelines;
• carbon-capture networks;
• energy storage infrastructure.

Potential concern

Suppose competing energy producers jointly control a pipeline.

They could potentially use control over the pipeline to:

• restrict capacity;
• increase rivals' costs;
• reserve capacity;
• discriminate between users; or
• coordinate downstream supply.

Therefore, access regulation and competition law often operate together.

12. Ports, Airports and Transport Infrastructure

Ports and airports can function as bottlenecks.

Competition issues may arise where a dominant infrastructure operator:

• refuses access;
• allocates slots discriminatorily;
• imposes excessive access charges;
• favours affiliated operators;
• restricts capacity; or
• prevents competing service providers from operating.

Collaborative ownership by competing transport companies therefore requires careful governance.

13. Digital Infrastructure

The concept has expanded substantially in digital markets.

Collaborative digital infrastructure may include:

• cloud computing;
• data centres;
• APIs;
• payment infrastructure;
• digital identity systems;
• common data spaces;
• AI computing infrastructure;
• interoperability systems; and
• shared digital platforms.

Competition concerns

Digital infrastructure collaboration can create:

Data concentration → Network effects → Entry barriers → Market power

A joint infrastructure can become particularly problematic when participants control both the infrastructure and the data generated through it.

14. Data Governance in Collaborative Infrastructure

A competition-compliant collaboration should establish clear rules regarding:

• what data may be shared;
• who owns data;
• who can access data;
• whether data can be used commercially;
• whether individual competitor data is visible;
• aggregation and anonymisation;
• retention periods;
• cybersecurity; and
• independent governance.

Competitor-specific commercially sensitive data should generally receive stronger protection than aggregated technical information necessary to operate the infrastructure.

15. Governance Safeguards

A collaborative infrastructure project can reduce competition risks through:

1. Independent governance

The infrastructure operator should have governance arrangements preventing individual competitors from controlling access for strategic purposes.

2. Non-discriminatory access

Comparable users should receive comparable access conditions unless objective differences justify different treatment.

3. Information firewalls

Competitively sensitive information should not automatically flow between competing businesses.

4. Transparent access criteria

Eligibility should be based on objective technical and commercial requirements.

5. Reasonable pricing

Access charges should not be structured deliberately to exclude downstream competitors.

6. Capacity allocation rules

Capacity should be allocated through transparent, predictable mechanisms.

7. Audit mechanisms

Independent compliance monitoring can detect discriminatory treatment.

8. Restrictions on exclusivity

Exclusive infrastructure arrangements should be examined carefully where they foreclose alternative infrastructure or competitors.

16. Competition Law Test for Collaborative Infrastructure

A useful analytical framework is:

Step 1 – Identify the infrastructure

↓

Step 2 – Identify participating competitors

↓

Step 3 – Define the relevant upstream and downstream markets

↓

Step 4 – Determine control and market power

↓

Step 5 – Examine the purpose of collaboration

↓

Step 6 – Identify information exchanged

↓

Step 7 – Examine access conditions

↓

Step 8 – Analyse foreclosure risks

↓

Step 9 – Examine efficiencies

↓

Step 10 – Determine whether restrictions are necessary and proportionate

↓

Step 11 – Consider behavioural or structural safeguards

17. Key Competition Concerns

18. Pro-Competitive and Anti-Competitive Features

Pro-competitive

• lower infrastructure costs;
• wider network coverage;
• increased capacity;
• interoperability;
• technological innovation;
• reduced duplication;
• improved resilience;
• environmental efficiencies.

Potentially anti-competitive

• exclusion of competitors;
• price coordination;
• market allocation;
• capacity restriction;
• discriminatory access;
• exchange of strategic information;
• raising rivals' costs;
• foreclosure;
• collective dominance.

The same infrastructure arrangement can contain both categories. Competition analysis therefore depends heavily on actual structure and effects, rather than the label attached to the collaboration.

19. Relationship Between Competition Law and Regulation

Collaborative infrastructure frequently operates in regulated sectors.

Examples include:

• telecommunications regulation;
• electricity regulation;
• transport regulation;
• banking/payment regulation;
• port regulation;
• digital infrastructure regulation.

Competition law does not necessarily disappear merely because a sector is regulated.

Instead, the legal framework may involve simultaneous application of:

sector regulation + competition law + access regulation + data regulation + contract law

This is especially important where regulators impose mandatory infrastructure-sharing obligations.

20. Remedies

Where competition concerns are established, authorities may consider:

Behavioural remedies

• non-discriminatory access;
• transparent pricing;
• information firewalls;
• access commitments;
• interoperability obligations;
• independent governance;
• monitoring trustees;
• reporting requirements.

Structural remedies

In serious cases, remedies can include:

• divestiture;
• separation of infrastructure ownership;
• functional separation;
• creation of independent infrastructure entities.

The appropriate remedy depends on the nature and severity of the competition problem.

21. Emerging Issues

Collaborative infrastructure competition law is becoming increasingly important in:

AI infrastructure

Joint AI-compute facilities may create access and concentration concerns.

Cloud computing

Interoperability and switching barriers may determine whether customers can move between infrastructure providers.

EV charging

Competitors may share charging infrastructure while competing over customers, payment systems and energy services.

Hydrogen networks

Early-stage infrastructure cooperation can generate efficiencies but may also determine future market access.

Carbon-capture networks

Shared pipelines and storage facilities may become critical infrastructure.

Data spaces

Industry-wide data-sharing infrastructure can simultaneously facilitate innovation and create information-exchange risks.

5G infrastructure

Network sharing can reduce deployment costs but may also reduce infrastructure-based competition.

22. Conclusion

Collaborative infrastructure is neither inherently pro-competitive nor inherently anti-competitive. Its competition-law treatment depends on the structure, market power of participants, degree of cooperation, access conditions, information exchanged, and actual or potential effects on competition.

The principal competition-law risks are:

1. collusion through infrastructure cooperation;
2. collective control over bottleneck facilities;
3. discriminatory or excessive access conditions;
4. vertical foreclosure;
5. margin squeeze;
6. exchange of competitively sensitive information;
7. exclusionary standard-setting; and
8. coordination of investment or capacity.

At the same time, infrastructure collaboration can generate substantial efficiencies by reducing duplication, lowering costs, increasing coverage, promoting interoperability and enabling technological innovation.

The central legal balance is therefore between facilitating efficient infrastructure investment and ensuring that infrastructure cooperation does not become a mechanism for suppressing independent competition. The cases involving Terminal Railroad, MCI, Bronner, IMS Health, Deutsche Telekom and Slovak Telekom provide important foundations for analysing this balance.