Competition Law and Shared Infrastructure Ecosystems and Antitrust

1. Introduction

Shared infrastructure ecosystems arise where competing or vertically related firms use, jointly develop, operate, or depend upon common infrastructure. The infrastructure may be physical, digital, technological, financial, or network-based.

Examples include:

• telecommunications towers and radio-access networks;
• electricity transmission and distribution grids;
• EV charging networks;
• railway tracks and stations;
• airports and airport slots;
• ports and terminals;
• broadband and fibre networks;
• cloud infrastructure and data centres;
• payment networks;
• digital identity and authentication infrastructure;
• logistics hubs and delivery networks;
• pipelines and energy terminals; and
• common data or interoperability infrastructure.

Competition law faces a fundamental tension: sharing can reduce duplication and promote efficiency, but it can also allow competitors to coordinate, exclude rivals, or obtain collective control over an essential input.

The European Commission has expressly recognised that infrastructure-sharing arrangements can generate cost savings, wider coverage and faster network deployment while simultaneously creating risks to operator independence and competition.

2. Meaning of Shared Infrastructure Ecosystems

A shared infrastructure ecosystem exists where several market participants depend upon a common infrastructure layer to compete in downstream markets.

A simplified structure is:

Infrastructure Layer
↓
Access / Interconnection Layer
↓
Downstream Competitors
↓
Consumers

For example:

Mobile towers / RAN → Network operators → Mobile services → Consumers

or:

Electricity grid → Energy suppliers → Retail electricity → Consumers

or:

Cloud infrastructure → SaaS providers → Digital services → Consumers

The infrastructure may be owned by:

1. one dominant undertaking;
2. a consortium;
3. a joint venture;
4. a regulated utility;
5. a state-owned enterprise;
6. several competing firms collectively; or
7. an independent infrastructure provider.

The competition-law problem changes depending on who controls the infrastructure and whether competitors can realistically obtain alternatives.

3. Why Shared Infrastructure Can Be Pro-Competitive

Infrastructure sharing is not inherently anti-competitive.

Competitors may share infrastructure because independent duplication is economically inefficient.

Potential benefits

A. Lower costs

Several operators can divide:

• construction costs;
• maintenance costs;
• equipment costs;
• energy costs;
• land costs; and
• network-management costs.

B. Faster infrastructure deployment

Sharing can enable infrastructure to be constructed more quickly.

This is particularly important in:

• rural telecommunications;
• fibre broadband;
• EV charging;
• renewable energy;
• transportation; and
• digital infrastructure.

C. Wider geographic coverage

Sharing may make infrastructure economically viable in areas where individual investment would otherwise be unprofitable.

D. Increased consumer choice

If infrastructure access is available to multiple competitors, consumers may benefit from greater downstream competition.

E. Environmental benefits

Infrastructure sharing may reduce:

• duplication of physical structures;
• energy consumption;
• construction;
• land requirements; and
• equipment waste.

F. Innovation

Common infrastructure can create technical standards allowing different firms to build complementary products.

The U.S. FTC similarly recognises that competitors sometimes need to collaborate to achieve efficiencies, while warning that collaboration becomes problematic when it compromises independent competitive decision-making or gives participants collective market power.

4. Main Antitrust Risks

A. Collusion through infrastructure sharing

The most obvious risk is that competitors use infrastructure cooperation as a mechanism for coordinating their commercial behaviour.

For example, competitors sharing:

• network capacity;
• costs;
• demand information;
• customer data;
• pricing information;
• capacity forecasts; or
• investment plans

may obtain commercially sensitive information about one another.

The infrastructure agreement can therefore become a platform for coordination beyond what is necessary for the legitimate infrastructure project.

5. Information Exchange

A shared infrastructure arrangement may require substantial information exchange.

However, competition law distinguishes between:

information necessary to operate the shared infrastructure

and

information capable of influencing competitive behaviour.

Sensitive information may include:

• future prices;
• customer-specific information;
• output plans;
• investment strategies;
• capacity decisions;
• margins;
• promotional plans; and
• future market expansion.

The greater the amount of commercially sensitive information exchanged, the greater the possibility that infrastructure cooperation could facilitate coordinated conduct.

6. Joint Control and Collective Market Power

Several infrastructure users may collectively acquire substantial market power.

For example:

Four major competitors jointly control the only logistics terminal available to downstream firms.

They may have an incentive to restrict access to smaller competitors.

This creates a competition problem even though no single participant individually controls the infrastructure.

Therefore, antitrust analysis must sometimes consider:

• collective control;
• joint ventures;
• governance arrangements;
• voting rights;
• veto rights;
• capacity allocation; and
• access conditions.

7. Essential Facilities Doctrine

The essential facilities doctrine is particularly relevant.

Where a dominant undertaking controls infrastructure that competitors cannot reasonably duplicate or substitute, refusal of access may potentially constitute an abuse of dominance.

However, courts have generally treated compulsory access as an exceptional remedy.

The classic European test comes from:

Bronner v Mediaprint

The Court of Justice required, in substance, that the facility be indispensable, that refusal be capable of eliminating effective competition, and that there be no objective justification.

Thus, the mere fact that access would make competition easier does not automatically make infrastructure an essential facility.

8. Key Case Law

1. United States v. Terminal Railroad Association of St. Louis, 224 U.S. 383 (1912)

This is one of the foundational U.S. infrastructure-access cases.

Several railroad companies collectively controlled terminal facilities necessary for effective railroad access to St. Louis.

The Supreme Court was concerned that control over the terminal infrastructure could exclude competing railroads.

Principle

Where competitors collectively control infrastructure indispensable for reaching a market, the arrangement may violate antitrust law if it effectively excludes rivals.

Importance

The case established an early form of the essential facilities/access principle.

It remains conceptually important for:

• ports;
• railway infrastructure;
• airports;
• pipelines;
• telecommunications networks; and
• other bottleneck facilities.

9. 2. MCI Communications Corp. v. AT&T, 708 F.2d 1081 (7th Cir. 1983)

MCI sought access to AT&T's telecommunications network.

The Seventh Circuit articulated an influential formulation of the essential-facilities doctrine.

The analysis focused on factors including:

1. control of the facility by a monopolist;
2. competitor inability practically or reasonably to duplicate the facility;
3. denial of access; and
4. feasibility of providing access.

Importance for shared infrastructure

The case illustrates the competition-law problem created where a dominant undertaking controls infrastructure that downstream competitors require to compete.

It is especially relevant to:

• telecom networks;
• broadband infrastructure;
• digital infrastructure; and
• other network industries.

10. 3. Oscar Bronner GmbH & Co. KG v. Mediaprint, Case C-7/97

Bronner concerned newspaper distribution infrastructure.

The claimant sought access to a dominant competitor's newspaper-delivery system.

The Court of Justice adopted a strict approach to compulsory access.

The facility had to be genuinely indispensable; a merely advantageous or more convenient alternative was insufficient.

Principle

Competition law does not ordinarily require a dominant undertaking to share infrastructure simply because sharing would improve a competitor's position.

Significance

Bronner is central to analysing:

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

11. 4. IMS Health GmbH & Co. OHG v. NDC Health, Case C-418/01

IMS Health concerned a pharmaceutical data structure protected by intellectual-property rights.

The Court considered when refusal to license an infrastructure-like intellectual property system could constitute abuse.

The case developed a distinct test involving circumstances such as:

• indispensability;
• elimination of effective competition;
• prevention of a new product; and
• absence of objective justification.

Relevance to shared digital infrastructure

Modern digital ecosystems frequently depend upon:

• APIs;
• technical standards;
• data structures;
• interoperability systems;
• databases; and
• software interfaces.

Consequently, IMS Health is important where intellectual property forms part of infrastructure necessary for downstream competition.

12. 5. Microsoft Corp. v. Commission, Case T-201/04

Microsoft involved interoperability information needed by competing work-group server operating systems.

The European courts upheld the Commission's approach to Microsoft's refusal to provide interoperability information.

Importance

The case demonstrates that an infrastructure problem does not always involve a physical facility.

A digital interface, protocol or interoperability layer can have infrastructure-like importance.

Competition lesson

Control over an interoperability layer can potentially permit a dominant undertaking to:

• restrict interoperability;
• disadvantage competing products;
• protect downstream market power; or
• reinforce an ecosystem.

This is particularly relevant to:

• cloud computing;
• operating systems;
• digital platforms;
• APIs;
• connected devices; and
• IoT ecosystems.

13. 6. Slovak Telekom v Commission, Joined Cases C-165/19 P and C-165/19 P-related proceedings

Slovak Telekom concerned access to telecommunications infrastructure.

The case is particularly significant because the Court distinguished between ordinary refusal-to-supply situations and conduct involving an infrastructure subject to ex ante regulatory access obligations.

Where access is already mandated by sector-specific regulation, the stringent Bronner indispensability test does not necessarily govern the assessment in the same way.

Importance

This is highly relevant to:

• fibre networks;
• local loops;
• telecom towers;
• broadband;
• electricity grids; and
• other regulated infrastructure.

It demonstrates the importance of considering competition law together with sector regulation.

14. 7. Deutsche Telekom AG v Commission, Case C-280/08 P

Deutsche Telekom involved access to telecommunications infrastructure and alleged margin squeeze.

The case established that a vertically integrated dominant infrastructure operator can violate competition law where the relationship between wholesale access conditions and downstream prices effectively disadvantages competitors.

Relevance

The principle can apply to infrastructure ecosystems where the infrastructure owner operates downstream.

For example:

Infrastructure owner → wholesale access → downstream service

If the infrastructure owner charges competitors conditions that make effective downstream competition commercially impossible while competing itself downstream, antitrust concerns arise.

15. 8. T-Mobile UK / O2 UK Network Sharing Agreement

The European Commission examined agreements under which T-Mobile UK and O2 UK shared aspects of their mobile networks.

The Commission recognised that network sharing could generate efficiencies but also identified potential competition risks, including common-cost effects and reduced independence between competitors.

The European Commission's broader practice distinguishes between different forms of infrastructure sharing and recognises that the competitive risks vary depending upon whether sharing is passive or active.

Importance

This is one of the most directly relevant examples of competitor infrastructure sharing.

It demonstrates that authorities do not automatically prohibit network sharing; rather, they examine:

• scope of sharing;
• technical integration;
• information exchange;
• geographic coverage;
• market structure;
• remaining independent assets;
• pricing independence; and
• efficiencies.

16. 9. Vodafone / CK Hutchison UK

The UK's CMA investigated the proposed Vodafone–CK Hutchison mobile-network joint venture.

The CMA ultimately cleared the transaction in June 2025 subject to remedies after a Phase 2 investigation.

Significance

The case illustrates how infrastructure consolidation can raise concerns about:

• reduction in the number of network operators;
• investment incentives;
• wholesale access;
• network quality;
• competitive constraints; and
• future infrastructure competition.

It demonstrates that network infrastructure transactions can be assessed as mergers, rather than merely as access arrangements.

17. 10. Cellnex / CK Hutchison UK Towers

The CMA examined Cellnex's acquisition of CK Hutchison's UK passive telecommunications infrastructure.

The transaction was cleared subject to remedies.

Importance

Telecommunications towers are classic shared infrastructure because multiple operators may use the same physical sites.

Competition authorities therefore have to consider whether consolidation of tower assets could affect:

• access;
• prices;
• geographic coverage;
• quality;
• investment;
• deployment of competing networks; and
• bargaining power.

18. Forms of Infrastructure Sharing

A. Passive infrastructure sharing

Examples:

• towers;
• ducts;
• poles;
• buildings;
• fibre conduits;
• electricity poles;
• railway tracks.

Generally, passive sharing creates fewer competitive risks than deep operational integration, although this depends on market structure.

B. Active infrastructure sharing

Examples:

• radio-access networks;
• network equipment;
• spectrum-related infrastructure;
• common software;
• network-management systems.

Active sharing can create greater competitive concerns because competitors become operationally interconnected.

C. Commercial infrastructure sharing

Examples:

• payment networks;
• logistics platforms;
• booking infrastructure;
• cloud marketplaces.

Here, access terms and data flows can be particularly important.

D. Digital infrastructure sharing

Examples:

• APIs;
• identity systems;
• cloud infrastructure;
• app stores;
• interoperability protocols;
• data exchanges.

The infrastructure may be intangible but economically indispensable.

19. Shared Infrastructure and Abuse of Dominance

Where one undertaking controls shared infrastructure, competition authorities may examine:

1. Refusal to supply

The dominant undertaking refuses access.

2. Discriminatory access

Competitors receive less favourable conditions than the infrastructure owner's affiliated businesses.

3. Excessive access pricing

Access charges may become an abuse where applicable legal requirements are satisfied.

4. Margin squeeze

Wholesale access prices combined with downstream prices may prevent equally efficient competitors from competing effectively.

5. Degradation of access

The dominant firm technically permits access but reduces:

• speed;
• reliability;
• interoperability;
• capacity; or
• service quality.

6. Strategic capacity allocation

Capacity may be reserved disproportionately for the dominant firm's own downstream activities.

20. Self-Preferencing

Shared infrastructure becomes particularly sensitive when the infrastructure owner also operates downstream.

Example:

Cloud infrastructure owner → Cloud marketplace → SaaS competitors

The owner could potentially give its own downstream service:

• better capacity;
• preferential latency;
• priority access;
• superior technical support;
• better data;
• lower internal costs.

The competition issue is therefore not simply access versus no access, but neutral versus discriminatory access.

21. Governance Problems

Shared infrastructure often requires a governance body.

The governance structure itself can generate antitrust risks.

Important questions include:

• Who controls the infrastructure?
• Who appoints directors?
• Who controls technical standards?
• Who controls capacity?
• Who determines access prices?
• Who receives operational data?
• Can competitors veto new entrants?
• Are decisions transparent?
• Are minority users protected?
• Can participants exclude rivals?

A nominally independent infrastructure operator may still be subject to competitive concerns if participating firms exercise effective joint control.

22. Data and Information Risks

Modern infrastructure ecosystems increasingly involve data.

A shared infrastructure may collect:

• traffic data;
• customer information;
• network utilisation;
• capacity data;
• demand forecasts;
• transaction data;
• pricing information.

The competition risk is particularly serious when competing firms can observe each other's commercially sensitive information.

A robust arrangement should therefore consider:

Data minimisation

Only information necessary for infrastructure operation should be exchanged.

Access controls

Competitors should not automatically receive one another's sensitive data.

Firewalls

Separate teams may be required to prevent improper information flows.

Independent administration

An independent infrastructure operator may reduce coordination risks.

23. Competition Between Infrastructure Providers

Shared infrastructure can create an additional competition problem if infrastructure providers themselves consolidate.

For example:

Tower Company A + Tower Company B → Tower Company C

The resulting company may control a large proportion of strategically located sites.

Similarly:

Cloud Provider A + Cloud Provider B

or:

Port Terminal A + Port Terminal B

may create significant infrastructure concentration.

Merger analysis should therefore examine:

• market shares;
• substitutability;
• capacity;
• geographic constraints;
• switching costs;
• entry barriers;
• countervailing buyer power; and
• access to alternative infrastructure.

24. Essential Facility vs Ordinary Commercial Facility

A crucial distinction is:

Bronner demonstrates why indispensability is a particularly important threshold in European competition law.

25. Infrastructure Sharing and Joint Ventures

A joint venture may simultaneously be:

1. an efficiency mechanism;
2. a concentration;
3. a competitor collaboration; and
4. a potential source of collective market power.

Authorities therefore examine whether the joint venture:

• is genuinely necessary;
• creates efficiencies;
• eliminates duplication;
• restricts independent competition;
• facilitates coordination;
• forecloses third parties; or
• creates a bottleneck.

26. Efficiency Defence

Infrastructure sharing may generate substantial efficiencies.

Possible efficiencies include:

• reduced capital expenditure;
• lower operating costs;
• accelerated deployment;
• increased geographic coverage;
• environmental benefits;
• technical standardisation;
• improved reliability.

However, efficiencies generally need to be:

1. genuine;
2. verifiable;
3. sufficiently connected to the arrangement; and
4. capable, under the applicable legal framework, of benefiting consumers or offsetting competitive harm.

27. Regulatory Interaction

Infrastructure ecosystems frequently operate under sector-specific regulation.

Examples include:

• telecommunications regulation;
• energy regulation;
• railway regulation;
• airport regulation;
• financial regulation;
• transport regulation.

The European telecommunications framework expressly combines ex ante regulation for enduring infrastructure bottlenecks with ex post competition enforcement.

Thus:

Competition law + sector regulation + infrastructure governance

often provide the relevant legal framework together.

28. Remedies

Competition authorities can employ several remedies.

Structural remedies

• divestiture;
• separation of infrastructure assets;
• independent infrastructure ownership.

Behavioural remedies

• non-discriminatory access;
• transparent pricing;
• capacity allocation rules;
• interoperability obligations;
• information firewalls;
• service-quality obligations.

Governance remedies

• independent directors;
• compliance officers;
• separate commercial teams;
• restrictions on information sharing.

Access remedies

• reasonable access;
• transparent technical standards;
• published access conditions;
• dispute-resolution mechanisms.

29. Shared Infrastructure in Digital Markets

Digital ecosystems create a new form of infrastructure competition.

Examples include:

Cloud → APIs → Applications

Operating system → App store → Applications

Digital identity → Authentication → Financial/online services

Payment infrastructure → Merchants → Consumers

Data infrastructure → AI models → Applications

The essential-facilities debate can therefore move from physical assets to technical interfaces and digital infrastructure.

Microsoft and IMS Health are particularly relevant to this development.

30. Shared Infrastructure and Cloud Computing

Cloud infrastructure presents several competition questions.

Potential concerns include:

• interoperability restrictions;
• switching costs;
• data portability;
• egress charges;
• technical lock-in;
• preferential treatment of affiliated services;
• access to computing capacity.

The UK's CMA completed a market investigation into public cloud infrastructure in 2025 and reported an adverse effect on competition, recommending consideration of strategic-market-status investigations concerning the largest cloud providers.

This illustrates how infrastructure competition is increasingly relevant beyond traditional utilities.

31. Shared Infrastructure and Telecom Networks

Telecom infrastructure is particularly important because independent duplication can be expensive.

Authorities therefore have to balance:

Infrastructure investment

against

downstream competition.

Current UK regulatory policy explicitly seeks to promote both competition and investment in gigabit-capable networks.

The same tension explains why authorities may permit infrastructure sharing while imposing safeguards.

32. Shared Infrastructure and Merger Control

Infrastructure transactions can trigger merger review even when the immediate transaction appears to concern only physical assets.

Important questions include:

1. Will competitors lose independent infrastructure?
2. Will access prices increase?
3. Will smaller operators become dependent?
4. Will investment decrease?
5. Will the transaction facilitate coordination?
6. Will the merged entity control strategically located sites?
7. Can new infrastructure realistically be built?

The Cellnex/CK Hutchison and Vodafone/CK Hutchison proceedings demonstrate how infrastructure consolidation can lead to detailed merger scrutiny and remedies.

33. Shared Infrastructure Ecosystem: Competition-Law Test

A useful analytical framework is:

Step 1 — Define the infrastructure

What exactly is being shared?

Step 2 — Identify the participants

Are they:

• competitors;
• suppliers;
• customers;
• vertically integrated firms?

Step 3 — Define the relevant markets

Identify:

• infrastructure market;
• access market;
• downstream market.

Step 4 — Determine market power

Ask whether any participant or group controls a bottleneck.

Step 5 — Examine alternatives

Can competitors reasonably:

• build;
• buy;
• lease;
• substitute; or
• bypass?

Step 6 — Examine the sharing agreement

Analyse:

• scope;
• duration;
• exclusivity;
• governance;
• pricing;
• data exchange.

Step 7 — Assess foreclosure

Could the arrangement exclude:

• existing competitors;
• potential entrants;
• innovative firms?

Step 8 — Assess coordination

Could infrastructure sharing facilitate:

• price coordination;
• output coordination;
• investment coordination;
• market allocation?

Step 9 — Examine efficiencies

Identify:

• cost savings;
• coverage;
• innovation;
• investment;
• environmental benefits.

Step 10 — Design safeguards

Use:

• non-discrimination;
• information firewalls;
• independent governance;
• transparent access;
• capacity safeguards.

34. Important Legal Principles Emerging from the Case Law

The principal lessons are:

Principle 1 — Infrastructure sharing is not automatically unlawful

The competitive effects must be examined.

Principle 2 — Indispensability matters

Bronner establishes a demanding threshold for compulsory access in refusal-to-supply cases.

Principle 3 — Physical infrastructure is not the only infrastructure

Digital interfaces, interoperability information and data structures may have infrastructure-like competitive significance.

Principle 4 — Regulation matters

Where access is already subject to sector-specific regulation, the competition-law analysis may differ from an unregulated refusal-to-supply case.

Principle 5 — Sharing can generate efficiencies

Network-sharing cases recognise potential benefits such as cost savings and faster deployment.

Principle 6 — Sharing can facilitate coordination

The more competitors integrate their operations, costs, data and investment decisions, the greater the potential coordination risk.

Principle 7 — Infrastructure mergers require special scrutiny

Control over bottleneck infrastructure can have effects extending into multiple downstream markets.

35. Conclusion

Shared infrastructure ecosystems occupy a distinctive position in competition law. They can simultaneously be a source of efficiency and competition enhancement and a potential mechanism for collusion, foreclosure, exclusion, discrimination and concentration of market power.

The central legal question is therefore not simply:

“Is infrastructure being shared?”

Instead, the appropriate questions are:

Who controls it?

Who depends upon it?

Are alternatives available?

What information is exchanged?

Does sharing facilitate coordination?

Can access be denied or discriminated against?

Does the arrangement produce verifiable efficiencies?

Does infrastructure consolidation reduce independent competitive constraints?

The cases from Terminal Railroad, MCI, Bronner, IMS Health, Microsoft, Deutsche Telekom, Slovak Telekom, T-Mobile/O2, Cellnex/CK Hutchison and Vodafone/CK Hutchison collectively demonstrate the evolution of competition law from traditional physical bottlenecks toward increasingly complex digital, technological and networked infrastructure ecosystems.