Lukoil I – Bronner Remains Available

Shortly before the Christmas recess, the Court of Justice delivered its judgment in Lukoil I (Case C-245/24), offering important guidance on the application of the Bronner doctrine (Case C-7/97) in a semi-regulated environment. This clarification is particularly welcome in light of recent enforcement practice, which has tended to construe Bronner narrowly. The EU Commission has even suggested that the doctrine is inapplicable where a refusal to supply contravenes ex-ante obligations laid down in sector-specific regulation. While the judgment in Lukoil I lends some support to this position, it also opens the door to a more nuanced approach, particularly in circumstances where ex-ante regulation fails to adequately acknowledge undertaken investments.

First, some background and context are necessary to situate the ruling and to better appreciate its legal scope and significance. The case originated in Bulgaria and concerned Lukoil, one of the world’s largest vertically integrated oil and gas groups, active in more than 30 countries. Lukoil denied access to certain infrastructure facilities used for the storage of motor vehicle fuels. The refusals stemmed from decisions taken by two Lukoil subsidiaries, each of which controlled a different element of the fuel infrastructure. However, because both entities belonged to the same corporate group, the Bulgarian National Competition Authority neither distinguished between them nor their actions - a point whose significance will become apparent later.

The infrastructure at issue had originally been constructed and operated by a state-owned undertaking, but was transferred to Lukoil in 1999 as part of a privatization program. Under the terms of the sale, Lukoil undertook to make substantial investments in the infrastructure and to grant access to third parties.

Following suspicious developments in fuel prices, the Bulgarian National Competition Authority opened an investigation in 2020. In 2023, it adopted a decision finding that the two Lukoil subsidiaries had infringed the Bulgarian equivalent of Article 102 TFEU. More specifically, the Bulgarian National Competition Authority concluded that they had denied access to a tax warehouse, port facilities, and an oil pipeline (see judgment, para 11) as part of a single anticompetitive strategy. Certain conduct was characterized as unjustified refusals to supply, while other measures were classified as restrictions on production detrimental to the consumers. As a result, fines of approximately EUR 72 million and EUR 28 million were imposed on the two companies.

In its assessment, the Bulgarian National Competition Authority took the view that, first, the conduct breached the access obligations laid down in the concession agreement transferring ownership of the infrastructure and, second, that the infrastructure had benefited from state funding prior to privatization. According to the Bulgarian National Competition Authority, these factors rendered the Bronner test (Case C-7/97) - and in particular the strict indispensability requirement set out in para 41 of that judgment - inapplicable.

Dissatisfied with these findings, Lukoil challenged the decision before the national courts, ultimately leading to a reference for a preliminary ruling to the Court of Justice. The resulting judgment provided what may be described as an early Christmas present for the antitrust community. 

The Court of Justice ruling and its relevance, considering previous case law

The Court delivered its judgment on 18 December 2025, providing several important clarifications concerning the scope and application of Article 102 TFEU in general, and of the Bronner doctrine in particular. 

In recent years, the case law has progressively narrowed the reach of Bronner. Most recently, in Google Auto (Case C-233/23), para 43, the Court confined the application of Bronner to situations in which the refused service was both developed for the dominant undertaking’s internal use and owned by that undertaking - two cumulative conditions. Earlier, in Lietuvos geležinkeliai (also referred to as Baltic Rail) (Case C-42/21), para 89, the Court held that Bronner does not apply where the dominant undertaking is subject to a regulatory obligation to provide access. Alongside this line of authority, a nascent doctrinal trend appears to be emerging under which the denial of access to infrastructure that has benefited from state funding or other public privileges may more readily be characterized as abusive.  Under this doctrine, Bronner is only available if the undertaking itself has developed the facilities.

Against this background, the position adopted by the Bulgarian National Competition Authority is understandable, and the Court of Justice’s ruling in the present case is correspondingly significant. 

The potential for effect must be real, but it does not have to be material

The first substantive issue addressed by the Court of Justice concerns the long-standing debate over how abusive conduct under Article 102 TFEU should be defined. Unfortunately, the judgment does little to remedy the persistent lack of a workable definition beyond familiar formulae such as “competition on the merits” and the “special responsibility” of dominant undertakings. In recent years, however, the case law and policy debate have witnessed both the rise (and partial retreat) of the As-Efficient-Competitor test and the emergence of the notion of so-called “naked restrictions” (see, for example, Draft Article 102 Guidelines, recitals 54 and 60c), understood as conduct that is inherently anticompetitive and, by analogy, comparable to restrictions “by object” under Article 101 TFEU.

In Lukoil I, the Court of Justice takes the opportunity to clarify that the legal framework for assessing a potential abuse of dominance is necessarily case-specific and must take account of all relevant factual circumstances, including the conduct’s capacity to produce exclusionary effects (para 35). The creation of artificial barriers may, in itself, constitute abusive conduct (para 36). While this conclusion is not surprising, it is nevertheless welcome insofar as it rebuts the notion of “by object” abuses under Article 102 TFEU and reaffirms the requirement that enforcement authorities demonstrate how the conduct at issue is capable of leading to foreclosure, and why the challenged actions are competitively harmful. 

Access to non-essential facilities

As noted above, the alleged denial of access concerned several facilities, some of which might not have qualified as essential within the meaning of Bronner. Neither the Bulgarian National Competition Authority nor the Court of Justice regarded this as problematic. Where the alleged abuse consists of multiple acts of separation pursued as part of a single anticompetitive strategy, the Court accepted that these acts may be treated as a single infringement of Article 102 TFEU (para 42).

This reasoning admits several interpretations. The more cautious reading is that not all of the facilities involved must satisfy the indispensability requirement under Bronner, provided that at least one does. On this view, access to ancillary or supportive facilities may also be required, even where those facilities are, in principle, duplicable. A more expansive - though more controversial - reading would suggest that none of the facilities need be essential within the strict Bronner framework, so long as the combined effects of the conduct are capable of producing foreclosure. While analytically intriguing, this latter interpretation should be approached with some hesitation, as it runs afoul of Bronner. 

Reading and applying Bronner

Turning to the central question of how Bronner should be interpreted and applied - where it applies at all - the Court offers several noteworthy clarifications. First, it reaffirms that the freedom to choose one’s trading partners is a fundamental principle of EU competition law (para 47). Second, it emphasizes that the legal basis on which control over infrastructure is exercised - whether through ownership, concession, or lease - is immaterial for the purposes of Article 102 TFEU (para 56). Third, the Court stresses that the Bronner criteria cannot be set aside in a mechanical manner (para 55). Rather, the assessment must consider, inter alia, whether the current operator acquired the infrastructure at a market-conforming price (para 54), rendering it immaterial that the infrastructure may have benefited from state resources or other privileges at an earlier stage.

These observations are significant in shifting the analytical focus from formal ownership to effective control, including the conditions under which such control was obtained. Read together with Google Auto, they also underscore the importance of examining the original purpose for which control was acquired and, in particular, whether the facilities were predominantly intended for internal use. 

Only after having carefully reviewed these steps can it be concluded that Bronner ceases to govern the assessment of refusals to supply. 

Dispensing with Bronner in the presence of ex ante obligations

As previously confirmed in Lietuvos geležinkeliai, where an obligation to supply or grant access flows directly from sector-specific regulation, Bronner does not govern the assessment. In Lukoil I, the Court reframes this principle in more operational terms by focusing on the absence of full commercial autonomy to refuse access (paras 51–52 and 56). Although not stated explicitly, this logic would appear to encompass situations in which access obligations arise from ex ante regulation, on the premise that such regulation reflects a fair balancing of competing interests, including the protection of the infrastructure operator’s financial incentives.

This reorientation towards commercial autonomy is noteworthy in its own right, but it may also have broader implications for the relationship between Article 102 TFEU and sector-specific regulation. Traditionally, enforcement authorities have tended to exclude the application of Bronner whenever ex-ante regulation imposes access obligations. However, the Court’s emphasis on a prior balancing of interests suggests a more nuanced approach. In particular, it points to at least two situations in which Bronner may retain relevance despite the existence of overlapping regulatory access obligations.

First, Bronner may remain applicable where sector-specific regulation fails adequately to balance competing interests, especially with respect to investment incentives. In the absence of a convincing regulatory balancing exercise, recourse to Bronner may still be necessary to ensure a proper assessment under Article 102 TFEU, with the burden of proof resting on the dominant undertaking.

Second, Bronner may remain relevant where the regulatory framework predates significant investments or structural changes, such as those associated with privatization. In such circumstances, the regulatory regime may fail to reflect post-liberalization market realities, particularly where the current operator did not benefit from the historical privileges attached to the infrastructure. 

Next step should be to amend the Article 102 Guidelines

Although Lukoil I concerned a national dispute, many of the principles established in the Court of Justice’s ruling are likely to govern future enforcement and to be incorporated into the final version of the new Article 102 Guidelines. This is particularly evident in the sections addressing actual anticompetitive effects, the concept of “naked” restrictions, and the interaction with ex-ante sectoral regulation. Not all aspects of the current draft Guidelines are fully aligned with the principles emerging from Lukoil I, as this suggests that ability must always be discussed, providing limited support for the concept of naked restriction.  

Disclosure: Dr. Christian Bergqvist is an Associate Professor at the University of Copenhagen and Senior Fellow at the GW Competition and Innovation Lab at The George Washington University. The author declares no conflicts of interest and can be reached at [email protected].