Who enforces access to essential digital platforms?

From market power to the power to exclude

As markets and societies become increasingly reliant on digital solutions, businesses and individual users (in their roles as consumers and citizens) grow ever more dependent on digital platforms for access to a wide range of opportunities. This creates a concentration of control which gives platform operators significant power to regulate access. One might even say that this kind of power resembles the regulatory power historically associated with statutory monopolies, but without comparable accountability safeguards. This has led to concerns about arbitrary exclusion, and ultimately to questions about how the law can or should respond. My PhD dissertation ‘Safeguarding essential access: A study of the essential facilities doctrine and the public service concept and their application in digital markets’, written within the ERC-funded ‘Modern Bigness’ project, investigates these very concerns and questions.

In this post, I summarise the main findings, but also push them in a direction that the dissertation only touches upon: enforcement. The argument ultimately made in that respect is that a right of access is only as strong as the mechanism that gives it effect.

Two routes to access, one normative yardstick

The dissertation compares two routes to safeguarding access to essential digital platforms. The first is the EU competition law route, particularly the essential facilities doctrine, and the second is a regulatory route grounded in the EU concept of public services.*

Within EU competition law, control over access to an essential resource is addressed through the essential facilities doctrine, which obliges a dominant undertaking to grant access to an upstream input that is not replicable through the ordinary process of innovation and investment, and without which competition on a downstream market would be foreclosed. At the same time, because control over access to digital platforms may implicate values beyond the ‘market’, this dissertation also investigates the regulatory route. Regulatory intervention can mandate not only access itself, but also its conditions, pricing, quality standards, or continuity. More fundamentally, regulation can justify access on grounds that extend beyond narrow market considerations (e.g. efficiency). The concept of public services captures this broader dimension, accounting for both market and non-market values.

To compare them, I adopt access justice, as developed by Hans-W. Micklitz, as the normative framework. Access justice is a form of justice concerned with facilitating (re-)entry to the market (and society). Based on its first requirement “breaking down of barriers which limit participation and access”, I infer three principles: access must be materialised and meaningful (meaning that access which exists only in theory must be turned into a realistic, tangible possibility); it must be fair and non-discriminatory; and access for the vulnerable must be ensured. I also argue that access justice is a fitting standard not only for European regulatory private law (as developed by Micklitz), but for EU competition law itself.

What the dissertation finds

The findings show that the two routes differ both in how they currently safeguard access to digital platforms and in how they could safeguard it in the future.

The role of/for essential facilities doctrine

Starting with competition law, the essential facilities doctrine is applied through the test set out in Bronner (Case C-7/97). Under that test, a dominant undertaking can be required to grant access only where its refusal would eliminate all competition on the downstream market, cannot be objectively justified, and concerns an input that is indispensable, meaning that no actual or potential substitute exists. Recent case law has confined the Bronner test to facilities developed exclusively for the dominant undertaking’s own use. That sits uneasily with the open business model of most platforms, so the doctrine in its classic form now applies only in limited circumstances. Yet alongside this narrowing, a growing body of access restrictions and equality of opportunity case law has emerged beyond Bronner (CBEM v CLT; Slovak Telekom; Superleague; Lithuanian Railways; Google Shopping; Android Auto. Read through access justice, this is not decline but maturation: the essential facilities doctrine protects undertakings facing absolute exclusion, while the access restrictions case law secures fair and non-discriminatory access. The Superleague judgment (Case C-333/21) adds a procedural layer, requiring dominant undertakings with quasi-regulatory power over access to observe good governance standards. I nonetheless propose refinements, including assessing indispensability through a broader public interest lens where an input is linked to essential needs or critical sectors.

The role of/for public services

Public services tell a different story. No EU legislator or Member State has yet explicitly entrusted a digital platform provider with a public task, although several existing EU legislative instruments already contain incidental provisions of that nature, and the existing framework would allow such a designation. Using search engines as an example, I show that a measure based on Article 114 TFEU, possibly combined with Article 14 TFEU, could impose obligations akin to USOs that address current gaps in access, quality and affordability guarantees. Such obligations could, for instance, guarantee that a basic search service remains affordable and meets a minimum level of quality. The concept therefore remains under-used, despite being well equipped to protect customers and citizens from exclusion not only from markets but from society.

My conclusion is that both routes align with access justice and are best seen as complementary. For now, competition law does more of the work, as it has begun to recognise that private undertakings are taking on functions once associated with statutory monopolies. The public service framework has not yet followed suit, given that the EU’s efforts towards digital solidarity and inclusion remain directed primarily at hard connectivity infrastructure, such as broadband, leaving digital platform services largely subject to market dynamics.

The enforcement angle: whose access is enforced?

Looking at these findings through the lens of enforcement raises a simple question: if access is denied, who can act?

Article 102 TFEU: decentralised and ex post. Competition law access claims can be brought by the Commission, by national competition authorities, and by private parties before national courts. This decentralisation has proved valuable. The Android Auto judgment (Case C-233/23), which made clear that Bronner’s indispensability condition does not apply to infrastructures designed to be open to third parties, began with a decision of the Italian competition authority concerning a refusal of interoperability. National enforcers, in other words, are helping to drive the doctrinal update my dissertation identifies. Yet ex post enforcement is slow and case-specific, and its beneficiaries are, almost by definition, undertakings.

The Digital Markets Act: centralised and ex ante. For designated gatekeepers, much of the access question has moved to the DMA, enforced primarily by the Commission. Article 6(12), for example, requires fair, reasonable and non-discriminatory general conditions of access for business users to app stores, search engines and online social networking services. But the DMA is an instrument for contestable and fair markets: its notion of fairness concerns the balance of rights and obligations between gatekeepers and business users, not access for citizens as such. Its protected class is business users, and its enforcement depends on the capacity and priorities of a single institution.

Universal service obligations: the missing enforcer. In the sectors where the EU has embraced public service logic, such as electronic communications, energy or postal services, USOs are monitored and enforced by national regulatory authorities, and end users can rely on them through the national rules transposing them. For digital platform services there is no equivalent. The EU’s commitments to digital inclusion are expressed largely in political and declaratory instruments, such as the European Declaration on Digital Rights and Principles, and in investment in hard connectivity infrastructure. Downstream platform services remain governed by market dynamics, with no baseline guarantee of access, quality or affordability, and therefore no one tasked with enforcing such a guarantee.

Put side by side, the findings are clear. Undertakings at risk of exclusion from digital platforms have two enforcement routes, one decentralised and one centralised. Citizens and consumers who depend on the same platforms for everyday participation, and whose socio-economic interests, such as universal access, are at stake, have no explicit rights and no dedicated enforcer in this regard.

Occupying the room that exists

Two lessons follow for enforcers and practitioners. First, competition enforcers, and national authorities in particular, should feel encouraged to use the space that post-Bronner case law has opened, including the procedural good governance standards of Superleague, to address access restrictions by platforms that fall outside the DMA. Second, if the EU means what it says about digital solidarity and inclusion, USO-type guarantees for essential platform services will need to be tabled, together with a designated authority to enforce them, so that citizens and consumers no longer sit in this enforcement gap.

Access has always been a foundational element of the European project. My dissertation argues that the doctrinal and conceptual room already exists to safeguard access to essential digital platforms for undertakings and citizens alike, and so to guard against the arbitrary exclusion that the platforms’ power to regulate access makes possible. Whether that room is actually occupied will also depend on who is given the task of enforcing it.

* Entailing services of general (economic) interest, their growing constitutional footing in Article 14 TFEU, Protocol No 26 and Article 36 of the Charter, and universal service obligations (USOs) guaranteeing access, quality and affordability.