Request for a preliminary ruling from the Administrativen sad Sofia-oblast (Bulgaria) lodged on 5 April 2024 – ‘LUKOIL Bulgaria’ EOOD and ‘LUKOIL Neftohim Burgas’ AD v Komisia za zashtita na konkurentsiata

(Case C-245/24, LUKOIL Bulgaria and LUKOIL Neftohim Burgas)

Language of the case: Bulgarian

Referring court

Administrativen sad Sofia-oblast

Parties to the main proceedings

Applicants: ‘LUKOIL Bulgaria’ EOOD and ‘LUKOIL Neftohim Burgas’ AD

Defendant: Komisia za zashtita na konkurentsiata

Questions referred

1.    Where the national competition authority has identified different types of behaviours, some of which have been classified as a refusal to grant access to an essential facility and others as a restriction of trade, but which have been combined into an overall strategy of the undertaking, is it permissible to find there to have been a single infringement under Article 102 TFEU or must separate infringements, classified respectively as a refusal to grant access to an essential facility and a restriction of trade, be found to have been committed?

2.    Must the competition authority exclude the application of the Bronner test to the alleged infringement under Article 102 TFEU in the form of a refusal to supply in all cases where the undertaking in a dominant position in relation to the essential facility has received public funding (on the basis of a privatisation contract/a concession), or is it necessary to assess the amount of the investment, the performance of the privatisation contract/concession (on the basis of which the essential facility was acquired) and whether the investment was made in connection with the performance of the investment contract/concession or on that undertaking’s own initiative?

2.1    If the foregoing question is answered in the affirmative, is observance of the principle of proportionality set out in [paragraph 75 of the] Guidance on the enforcement of Article 102 … TFEU (Section [‘IV.][D. Refusal to supply and margin squeeze’]) ensured, where the dominant undertaking has invested in the essential facility, by applying restrictive criteria determined on the basis of the principle of ‘that which is most necessary’ for preserving competition, with proportionate account being taken of the interests of the dominant undertaking?

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