Case C-486/26, DMC Digital Maut Consulting – must a toll operator register a rival's customers?
Since Bronner, a dominant undertaking’s refusal to give a competitor access to its facilities has been abusive only in exceptional circumstances. The Austrian Supreme Court asks whether one of those circumstances, taken from an intellectual property case, applies to everything else.
Facts
DMC Digital Maut Consulting GmbH is in dispute with Autobahnen- und Schnellstraßen-Finanzierungs-Aktiengesellschaft (ASFINAG), which operates the toll system for Austria’s motorways and expressways. DMC wants ASFINAG to register the number plates of DMC’s customers in that system; ASFINAG provides the same service to its own customers and refuses. The Oberster Gerichtshof, hearing the case in competition proceedings (16 Ok 3/26s, decision of 7 May 2026), describes the dispute as one about ASFINAG’s duty to contract. Its question assumes that the refusal would be likely to eliminate all competition from DMC, could not be objectively justified and concerns a service essential to DMC’s business, the three conditions laid down in Bronner (C‑7/97). What it doubts is whether a further condition applies: that DMC must offer a new service rather than the one ASFINAG already provides.
Question Referred
Can the refusal of a dominant undertaking to provide a competitor with a service, namely the registration of the competitor’s customers’ number plates in the dominant undertaking’s toll system, constitute abuse within the meaning of Article 102 TFEU, where that service is provided by the dominant undertaking itself, that is to say, where the competitor does not provide a ‘new service’, even though that refusal would be likely to eliminate all competition in the market on the part of the person requesting the service, would be incapable of being objectively justified and the service in itself would be essential to the exercise of the competitor’s business?
Sources
OJ notice C/2026/4568 (EUR‑Lex) · Case file on CURIA · Bronner, C‑7/97 (ECLI:EU:C:1998:569) · IMS Health, C‑418/01 (ECLI:EU:C:2004:257) · Alphabet and Others, C‑233/23 (ECLI:EU:C:2025:110)
Comment
In Bronner the Court said that, even if the case law on intellectual property were applicable to “the exercise of any property right whatever”, a refusal of access could be abusive only if it was likely to eliminate all competition on the part of the person requesting the service, incapable of objective justification, and concerned a service “indispensable to carrying on that person’s business, inasmuch as there is no actual or potential substitute”. That is three conditions, not four. The fourth comes from IMS Health (C‑418/01), a copyright case, where the refusal had to be “preventing the emergence of a new product for which there is a potential consumer demand”. The Court added there that a refusal to give access to a product protected by an intellectual property right may be abusive “only where the undertaking which requested the licence does not intend to limit itself essentially to duplicating the goods or services already offered on the secondary market by the owner of the intellectual property right”. On the referring court’s description, DMC wants to offer its customers the very registration that ASFINAG provides itself.
The new-product condition was framed in IMS Health by reference to intellectual property, where the right in question is itself a right to exclude others; Bronner, which did not concern intellectual property, set out only three conditions. The Court’s most recent judgment on refusal of access moved the other way, loosening the test rather than adding to it. In Alphabet and Others (C‑233/23), the Android Auto case, it held that where a dominant undertaking has developed infrastructure “not solely for the needs of its own business but with a view to enabling third-party undertakings to use” it, a refusal may be abusive even if access is not indispensable. Whether ASFINAG’s system was developed solely for its own business or with a view to use by others is not part of the question as framed, but after Alphabet it may matter as much as the answer to it.