The EU Court of Justice AG Saugmandsgaard Øe recommends the Bronner legal test to be limited to ’refusals to make available’ (Slovak Telekom) (Deutsche Telekom)

Advocate General (‘AG’) Saugmandsgaard Øe recommends the European Court of Justice (‘ECJ’) to (i) rule that the test included in the Bronner Judgment – including the indispensability requirement – should only be applied in specific circumstances (i.e., in case of ‘refusals to make available’), and (ii) reject the introduction of the concept of ‘implicit refusals to grant access’ (or similar terms such as ‘constructive refusals to grant access’). In this article, we set out the reasoning adopted by the AG to substantiate his recommendation as well as our analysis of the AG’s Opinion. In addition, the Opinion provides the ECJ guidance in relation to the liability of parent undertakings for the behaviour of their subsidiaries. We do not deal with this aspect of the Opinion. 1.The Parties