Identification of “Digital Essential Infrastructures” Under German Competition Doctrine

1. Introduction

The expression “digital essential infrastructure” is not a formally defined statutory category in the German Gesetz gegen Wettbewerbsbeschränkungen (GWB). It is instead a useful analytical concept derived from the German essential-facilities doctrine, the law on refusal of access, market dominance, and the newer rules governing powerful digital ecosystems.

Traditionally, an essential facility was a physical infrastructure—such as an electricity network, gas pipeline, telecommunications network or other facility—which competitors could not realistically duplicate and without which they could not compete effectively.

In digital markets, the same economic function can be performed by:

• a dominant search engine;
• an app store;
• a mobile operating system;
• a cloud-computing platform;
• a digital marketplace;
• an advertising infrastructure;
• an API or interoperability layer;
• a data ecosystem;
• a digital identity or authentication system;
• a payment infrastructure;
• a mapping or location-data platform; or
• an ecosystem that provides indispensable access to users or business customers.

German competition doctrine therefore increasingly asks not simply “Is this platform large?”, but:

Does control over the digital facility give its owner the ability to determine whether, and on what terms, competitors or business users can participate in an adjacent market?

The traditional essential-facilities doctrine under § 19 GWB remains important, but § 19a GWB has significantly expanded the German authorities' ability to address digital bottlenecks before they produce the kind of complete foreclosure traditionally associated with an essential facility. The Bundeskartellamt expressly considers access to markets and the influence of a digital ecosystem over third parties when assessing companies of paramount significance for competition across markets.

2. Statutory Foundation

A. Section 19 GWB

The classical starting point is § 19 GWB, which prohibits the abuse of a dominant position.

Historically, § 19(4) No. 4 GWB contained the German essential-facilities rule. Its underlying logic was that a dominant undertaking could not simply deny another undertaking access to an infrastructure facility where:

1. the facility was objectively necessary;
2. duplication or substitution was not reasonably possible;
3. access was necessary to compete on an upstream or downstream market; and
4. refusal could exclude effective competition.

The important principle is that the facility does not have to be literally impossible to reproduce. The question is whether it can be reasonably substituted or duplicated.

This is particularly important in digital markets because a platform may technically be replicable but economically impossible to reproduce because of:

• enormous network effects;
• accumulated data;
• installed user bases;
• interoperability;
• switching costs;
• ecosystem integration;
• reputation;
• developer dependence;
• economies of scale and scope.

The German Federal Administrative Court has emphasized that objective necessity alone is insufficient: the claimant must also be unable to substitute or duplicate the facility in a reasonably practicable manner.

3. Why Digital Infrastructure Is Different

A conventional infrastructure facility normally has a physical bottleneck.

For example:

Electricity network → transmission → downstream electricity suppliers

A digital infrastructure can instead operate through several simultaneous bottlenecks:

Users + Data + Algorithm + Interface + API + Payment + Identity + Distribution

This creates a much more complicated form of dependency.

Example

An app developer may theoretically create its own application.

But if consumers predominantly obtain applications through one app store, the developer may depend upon:

• access to the store;
• ranking;
• payment functionality;
• technical APIs;
• operating-system permissions;
• authentication;
• updates;
• security certification.

Thus, the app store is not merely a retail intermediary. It may function as an infrastructural gateway.

4. Core Test for Identifying a Digital Essential Infrastructure

A German competition-law analysis can be structured around eight factors.

4.1 Control by a dominant undertaking

First, the undertaking must possess substantial control over the facility.

Relevant indicators include:

• market share;
• user numbers;
• network effects;
• financial resources;
• data advantages;
• technological superiority;
• ecosystem breadth;
• control over standards;
• control over interfaces.

Under § 19a GWB, the Bundeskartellamt considers, among other factors, the company's market position, financial strength, cross-market activities, access to competitively relevant data and the importance of its activities for market access by third parties.

4.2 Necessity

The facility must be sufficiently important to effective competition.

A digital facility may be considered necessary where competitors cannot realistically reach customers without it.

Examples include:

• access to a dominant app store;
• access to an operating system;
• access to a dominant marketplace;
• access to an API;
• access to a critical cloud service;
• access to interoperability information;
• access to competitively significant data.

The key distinction is between useful and indispensable infrastructure.

A platform is not essential merely because it is popular.

4.3 Absence of reasonable duplication

This is one of the most important requirements.

The question is not:

“Could a competitor theoretically build another platform?”

The more relevant question is:

Could the competitor reasonably reproduce the relevant competitive functionality within a realistic period and at economically viable cost?

For digital infrastructure, duplication may be defeated by:

Network effects

More users attract more users.

Data accumulation

More users produce more data, which improves algorithms and services.

Economies of scale

Large infrastructure providers can operate at significantly lower unit cost.

Ecosystem effects

A platform may combine several complementary services.

Switching costs

Users and businesses may find migration expensive.

Interoperability barriers

Competitors may lack access to technical interfaces.

5. The “Digital Bottleneck” Concept

The most useful conceptual distinction is between a digital facility and a digital bottleneck.

A digital bottleneck exists where one undertaking controls an interface between two or more economically dependent groups.

For example:

Operating System
↓
App Store
↓
Developers
↓
Consumers

or:

Search Engine
↓
Users / Traffic
↓
Publishers and Advertisers

or:

Cloud Infrastructure
↓
Computing Resources
↓
AI Developers / Enterprise Customers

The facility becomes competition-law relevant when control over the bottleneck allows the owner to determine the competitive conditions in an adjacent market.

6. Important German Case Laws

Case 1 — BGH, Gasdurchleitung, KVR 29/93

This is one of the foundational German access cases.

The case concerned access to an existing gas pipeline network. The dominant undertaking attempted to prevent another undertaking from obtaining gas-transmission access.

The Federal Court of Justice recognized the importance of infrastructure access and developed principles concerning compelled access and the limits of the dominant undertaking's ability to refuse supply or infrastructure use. The case is particularly significant because later German jurisprudence expressly referred to it when explaining the rationale of the essential-facilities doctrine.

Digital significance

The analogy is:

Gas pipeline → digital API/cloud/platform interface

A pipeline connects suppliers to customers.

A digital interface can similarly connect:

• developers to users;
• sellers to consumers;
• applications to an operating system;
• businesses to cloud infrastructure.

The case therefore provides the historical infrastructure logic for modern digital access disputes.

7. Case 2 — BGH, Arealnetz, KVR 27/04

This is one of the clearest German authorities on essential infrastructure.

The case involved access to an electricity network operated by an energy company.

The BGH held that it was sufficient for the undertaking to possess a dominant position concerning the market for use of the infrastructure. The infrastructure owner could not refuse access simply because allowing access would expose it to competition on an upstream or downstream market.

The BGH expressly emphasized the purpose of the essential-facilities rule: competition may only be possible where an existing infrastructure facility can be used by multiple competitors.

Digital significance

This principle is extremely important for digital ecosystems.

Suppose:

Platform A controls a critical digital interface and also competes downstream with businesses that need that interface.

The platform cannot automatically justify exclusion by saying:

“Opening the interface would create competition against me.”

That would undermine the very purpose of an access doctrine.

Digital examples

• app store + competing app developer;
• marketplace + third-party seller;
• operating system + rival service;
• cloud platform + competing cloud-dependent application.

8. Case 3 — BGH, Strom und Telefon I, KZR 16/02

In Strom und Telefon I, the BGH examined the interaction between a dominant electricity provider and competition in a telecommunications market.

The Court recognized that abuse of dominance can affect competitive opportunities on a third market, even where the dominant undertaking does not itself dominate that downstream market.

The Court also examined the geographic characteristics of the electricity market and the potential competitive effects of bundling electricity and telecommunications services.

Digital significance

This case is particularly relevant to ecosystem competition.

A digital conglomerate can use dominance in one market to influence competition elsewhere.

For example:

Dominant operating system

• dominant browser
• dominant search service
• dominant advertising infrastructure

may permit competitive advantages to migrate across markets.

Therefore, identifying digital essential infrastructure cannot be restricted to one narrowly defined product market.

9. Case 4 — BGH, Soda-Club II, KVR 21/07

Soda-Club II concerned a system involving reusable cylinders and filling services.

The BGH held that when consumers have already committed themselves to a particular long-term system, alternative systems may no longer constitute realistic substitutes for the particular input required by that system.

This is extremely important for digital markets.

The principle

Market definition must consider the actual dependency created by the system.

A theoretical alternative is not necessarily a real competitive alternative.

Digital analogy

Suppose a developer has invested heavily in:

• one operating system;
• its APIs;
• its developer tools;
• its authentication system;
• its payment architecture.

The fact that another operating system technically exists does not necessarily establish effective substitutability.

Thus:

System-specific dependence can transform an ordinary input into an essential digital input.

This is one of the most useful German precedents for analysing platform lock-in.

10. Case 5 — BGH, Facebook/Meta, KVR 69/19

The Facebook case represents a major transition from physical essential facilities toward data-driven digital infrastructure.

The Bundeskartellamt found that Facebook's practice of combining data from Facebook, Instagram, WhatsApp and third-party sources raised competition concerns because Facebook possessed a dominant position in the German social-network market.

The BGH, in 2020, rejected Facebook's attempt to obtain suspensive effect against the Bundeskartellamt's decision, allowing the competition proceedings to continue. The later CJEU judgment in Meta Platforms addressed the interaction between competition law and GDPR considerations.

Why it matters for digital essential infrastructure

The case demonstrates that data can itself become an infrastructural competitive resource.

A dominant platform may possess:

• behavioural data;
• cross-service data;
• advertising data;
• identity information;
• engagement data;
• transaction data.

The more difficult it becomes for rivals to reproduce the same informational environment, the closer the data ecosystem moves toward an essential-input analysis.

Importantly, however:

Not every large dataset is automatically an essential facility.

The claimant must still demonstrate meaningful competitive necessity and lack of realistic alternatives.

11. Case 6 — Bundeskartellamt, Alphabet/Google, § 19a GWB

The Google proceeding is perhaps the clearest modern German example of the digital infrastructure concept.

The Bundeskartellamt determined that Alphabet/Google possesses paramount significance for competition across markets under § 19a(1) GWB.

Google's ecosystem includes:

• Google Search;
• YouTube;
• Android;
• Google Play;
• Google Maps;
• Chrome;
• Gmail;
• advertising services.

The authority specifically observed that Google's services can function as infrastructure because many other services depend substantially on them and because they are highly important to third-party businesses.

This is extremely significant.

The German authority is effectively recognizing that a digital ecosystem can possess infrastructural characteristics without being a traditional physical facility.

Relevant infrastructural characteristics

Search → access to users

Android → access to mobile devices

Play Store → access to applications

Google Maps → location functionality

Advertising infrastructure → access to advertisers/users

Data → competitive input

This demonstrates the movement from:

Essential physical facility

toward:

Essential digital ecosystem capability.

12. Case 7 — Bundeskartellamt/Amazon, § 19a GWB and BGH Review

Amazon provides another important example.

The Bundeskartellamt found Amazon to have paramount significance for competition across markets under § 19a GWB. The authority emphasized Amazon's marketplace, retail activities, logistics, advertising, payment services, cloud services and extensive data resources.

The authority particularly emphasized Amazon's ability to influence market access and the commercial success of third-party businesses.

The decision was subsequently upheld by the BGH in 2024.

Digital infrastructure implication

Amazon's marketplace is not simply a website on which products are sold.

It can operate as:

marketplace + distribution channel + advertising infrastructure + logistics ecosystem + data infrastructure + customer-access gateway.

This illustrates why digital essential infrastructure frequently exists at the ecosystem level rather than as a single product.

13. Case 8 — Google Automotive Services / Google Maps Platform

A particularly useful modern example concerns Google's Automotive Services and Google Maps Platform.

The Bundeskartellamt's § 19a proceedings resulted in commitments concerning licensing and interoperability. Google agreed to make the services within Google Automotive Services available individually and to create conditions for interoperability with competing services.

This demonstrates an important development:

Essential infrastructure does not necessarily require total exclusion.

A digital platform can create competitive dependence through:

• tying;
• technical integration;
• contractual restrictions;
• default settings;
• interoperability limitations;
• bundling.

Therefore, German digital competition doctrine increasingly looks at control over access conditions, not merely absolute refusal of access.

14. Traditional Essential Facility vs Digital Essential Infrastructure

15. The German “Necessity” Test in Digital Markets

The most important question is:

Could the competitor realistically compete without access to the facility?

This requires examination of several dimensions.

A. User access

Does the infrastructure provide access to a substantial proportion of users?

B. Business access

Do businesses depend upon the infrastructure to reach customers?

C. Technical access

Does it provide APIs, operating-system functions, interoperability or authentication?

D. Data access

Does it provide unique or difficult-to-replicate data?

E. Network effects

Would a new entrant be unable to attract users without already having a large user base?

F. Switching costs

Would moving away require substantial technological or commercial investment?

G. Duplication

Can a rival realistically reproduce the facility?

H. Time

Could it reproduce it quickly enough to preserve effective competition?

16. “Impossible to Duplicate” Does Not Mean Literally Impossible

This is especially important under German doctrine.

The inquiry concerns whether duplication or substitution is reasonably possible, not whether it is physically impossible.

A digital platform may be technically reproducible but economically non-replicable.

For example:

A competitor could theoretically build another search engine.

But reproducing:

• billions of indexed webpages;
• user behavioural information;
• advertising relationships;
• distribution agreements;
• default positions;
• brand recognition;
• accumulated machine-learning data;

may not be reasonably achievable.

Consequently, the economic impossibility of replication can be more important than physical impossibility.

17. Data as Digital Essential Infrastructure

Data deserves separate treatment.

A dataset becomes potentially infrastructural where:

1. it is competitively significant;
2. it is sufficiently unique;
3. competitors cannot reasonably reproduce it;
4. access is necessary for effective competition; and
5. the data controller can use its control to foreclose rivals.

The German debate increasingly recognizes this possibility. A German federal government analysis has expressly noted that datasets created through strong network effects may potentially constitute essential facilities because network effects can make parallel accumulation of comparable datasets exceptionally difficult.

But German law should avoid a simplistic equation:

Large dataset = essential facility.

The proper approach remains necessity + non-replicability + competitive dependence + abuse.

18. Algorithms as Infrastructure

Algorithms can also perform an infrastructural function.

Examples include:

• search-ranking algorithms;
• recommendation systems;
• advertising auctions;
• fraud-detection systems;
• credit-scoring systems;
• routing algorithms;
• marketplace-ranking systems.

The algorithm becomes infrastructural when control over it determines whether businesses can meaningfully access customers.

For example:

Marketplace seller → algorithmic ranking → consumer visibility

If the platform controls the ranking mechanism, it may effectively control access to demand.

This creates a modern version of the traditional infrastructure problem.

19. APIs as Essential Facilities

APIs may be among the clearest future digital essential facilities.

An API can determine whether:

• applications communicate;
• data can be transferred;
• services interoperate;
• payments are processed;
• authentication works;
• devices communicate.

The relevant question is not simply whether an API is technologically useful.

Instead:

Does withholding the API make effective competition in the adjacent market practically impossible or substantially impaired?

The Google Automotive Services proceedings illustrate why interoperability has become an important component of German digital competition policy.

20. Cloud Computing as Digital Essential Infrastructure

Cloud infrastructure presents a particularly difficult case.

A hyperscaler may provide:

• computing capacity;
• storage;
• databases;
• AI accelerators;
• networking;
• cybersecurity;
• developer tools.

But cloud services are generally more substitutable than a traditional physical monopoly facility.

Therefore, a claimant would need to establish factors such as:

• severe switching costs;
• data portability barriers;
• technical incompatibility;
• proprietary APIs;
• lack of equivalent capacity;
• scarcity of specialised computing resources;
• ecosystem dependence.

The stronger the combination of these factors, the stronger the essential-infrastructure argument.

21. App Stores and Operating Systems

Operating systems are particularly interesting because they can simultaneously constitute:

1. a technological platform;
2. a distribution system;
3. an identity system;
4. an authentication system;
5. an advertising ecosystem;
6. an application gateway.

The German Meta/Oculus proceedings illustrate the importance of ecosystem control.

The Bundeskartellamt examined whether use of Meta's VR headsets could be conditioned upon having a Facebook account. The authority treated ecosystem expansion and tying as potentially capable of strengthening barriers to entry in related markets.

Thus:

The infrastructural problem can arise even when the dominant firm does not refuse access outright, but instead conditions access on acceptance of ecosystem rules.

22. Section 19a GWB Changes the Analysis

The most important development is that § 19a GWB is not simply an updated essential-facilities rule.

It addresses a broader problem.

Traditional doctrine often asks:

“Has a dominant firm abused its control over an essential facility?”

Section 19a allows intervention against undertakings with paramount significance for competition across markets and permits intervention against certain practices even where the undertaking is not yet dominant in the specific affected market.

This is highly significant for digital ecosystems.

The Bundeskartellamt describes the system as a two-stage examination:

Stage 1

Determine whether the undertaking has paramount significance across markets.

Stage 2

Examine prohibited or potentially harmful conduct.

The authority has applied this framework to Google, Amazon, Meta, Apple and Microsoft.

23. From Essential Facility to Ecosystem Infrastructure

German doctrine can therefore be understood as moving through three stages:

Stage I — Physical infrastructure

Gas pipeline → electricity network → telecommunications network

Stage II — Network and system dependence

Telecommunications → technical standards → system-specific inputs

Stage III — Digital ecosystems

Search + data + operating system + marketplace + advertising + cloud + APIs

The third stage is substantially broader.

The infrastructure is no longer necessarily a single object.

It may be an interdependent collection of digital services.

24. Identification Matrix

A useful German-law analytical matrix is:

25. Important Limitation: Not Every Gatekeeper Is an Essential Facility

German competition law should not collapse the concepts of:

dominant platform,
gatekeeper, and
essential facility.

They are related but distinct.

Dominant platform

Has substantial market power.

Gatekeeper

Controls an important access point between businesses and users.

Essential facility

Possesses a facility or resource whose access is sufficiently indispensable to effective competition and cannot reasonably be duplicated or substituted.

A company may be a gatekeeper without every component of its ecosystem qualifying as an essential facility.

26. Relationship with the DMA

The German doctrine now operates alongside the EU Digital Markets Act.

The DMA imposes obligations concerning, among other things:

• interoperability;
• data portability;
• access to information;
• switching;
• self-preferencing;
• pre-installation;
• access to certain data.

The German competition regime therefore increasingly operates within a multi-layered regulatory architecture:

§ 19 GWB
↓
§ 19a GWB
↓
Article 102 TFEU
↓
DMA

The Bundeskartellamt itself recognizes the DMA as an important European instrument for digital gatekeepers while maintaining the distinct German §19a framework.

27. Emerging Categories of Digital Essential Infrastructure

Under the developing German doctrine, the following categories deserve particular attention:

1. Data infrastructure

Unique datasets and cross-platform data.

2. Identity infrastructure

Digital authentication and identity systems.

3. Operating-system infrastructure

Windows, Android, iOS-type environments.

4. Application-distribution infrastructure

App stores and software marketplaces.

5. Cloud infrastructure

Compute, storage, networking and specialised AI resources.

6. Search infrastructure

Search indexing and user-access mechanisms.

7. Advertising infrastructure

Ad exchanges, demand-side/supply-side systems and user targeting.

8. Marketplace infrastructure

Platforms connecting sellers and consumers.

9. API infrastructure

Interfaces required for interoperability.

10. Payment infrastructure

Digital payment gateways and platform payment systems.

11. Mapping/location infrastructure

Geospatial and location-data systems.

12. AI infrastructure

Foundation models, inference APIs, training datasets and specialised compute where duplication is realistically unavailable.

28. A Proposed German Test for “Digital Essential Infrastructure”

For academic and examination purposes, the doctrine can be synthesized into the following test:

Step 1 — Define the facility

Identify the precise digital asset:

data / API / platform / operating system / cloud / marketplace / algorithm / network.

Step 2 — Identify the dependent market

Determine the upstream, downstream or neighbouring market affected.

Step 3 — Establish control

Determine whether one undertaking controls the facility.

Step 4 — Establish competitive necessity

Ask whether effective competition is realistically possible without access.

Step 5 — Test substitution

Identify actual alternatives rather than merely theoretical alternatives.

Step 6 — Test duplication

Consider:

• technical feasibility;
• economic cost;
• time;
• data accumulation;
• network effects;
• switching costs.

Step 7 — Examine foreclosure

Ask whether refusal or restrictive access conditions can eliminate or materially weaken competition.

Step 8 — Examine ecosystem effects

Assess whether the facility allows market power to be leveraged across multiple markets.

Step 9 — Apply §19 GWB

Where traditional dominance and abuse requirements are satisfied.

Step 10 — Apply §19a GWB where appropriate

Where the undertaking possesses paramount significance across markets.

29. Overall Doctrinal Principle

The central transformation can be expressed as follows:

German essential-facilities doctrine is moving from a conception of infrastructure as a physical object toward a conception of infrastructure as a competitively indispensable access capability.

Under this approach, a digital infrastructure can consist of:

technology + data + users + interoperability + algorithms + distribution + ecosystem

rather than merely a physical network.

The Google proceedings are especially significant because the Bundeskartellamt itself described Google's services as functioning as “infrastructure” where other services substantially depend upon them and where those services are important to third-party business activity.

30. Conclusion

The identification of digital essential infrastructures under German competition doctrine should not be reduced to asking whether a platform has a large market share.

The decisive inquiry is structural dependence.

A digital facility becomes potentially essential where:

1. a powerful undertaking controls it;
2. it provides an important gateway to users, data, technology or markets;
3. competitors cannot realistically substitute or duplicate it;
4. network effects and switching costs reinforce dependence;
5. control over the facility can be leveraged into adjacent markets; and
6. refusal, discrimination, tying, interoperability restrictions or other access conditions threaten effective competition.

The traditional cases—Gasdurchleitung, Arealnetz, Strom und Telefon I and Soda-Club II—provide the foundational principles of infrastructure dependence, non-duplication, system-specific lock-in and cross-market competitive effects. The modern Facebook, Google and Amazon proceedings demonstrate how those principles are being adapted to digital ecosystems.

The most important contemporary development is therefore the shift:

from “essential facility” → “essential digital input” → “digital bottleneck” → “ecosystem infrastructure.”

That shift is particularly important under §19a GWB, because German law can address the competitive risks generated by powerful digital ecosystems before a particular digital component necessarily satisfies every traditional element of the classical essential-facilities doctrine.