When Elephants Won’t Mediate: Lessons From Enel X v. Google
11.26.2025
When the Italian Consiglio di Stato (Italy’s highest administrative court) handed down its decision No. 8398/2025 confirming that Google had abused its dominant position by excluding Enel X’s JuicePass app from the Android Auto platform, it did more than settle a legal dispute. It reopened a conversation about the relationship between private resolution and public law – between the practical art of reaching a resolution for the parties and the public responsibility of setting a precedent. This was not a quarrel about an app alone. It was about the invisible architecture of our digital ecosystems, where convenience, competition, and control converge. And it posed a simple but profound question: when should dialogue suffice, and when must a public decision draw a line for all?
The conflict began in 2018, when Enel X, an electric vehicle charging provider, sought access to Android Auto. Google denied the request, citing technical limitations. Italy’s Antitrust Authority launched an investigation and, in 2021, concluded that Google had abused its dominance, imposing a fine of over €102 million. Although Google eventually created the needed interoperability tools and opened access to similar apps, the legal dispute continued. It reached the European Court of Justice, which reformulated the questions posed by the Italian court, and resulted in the Council of State’s October 2025 decision. While confirming the abuse and establishing important principles about digital platform obligations, the court partially accepted Google’s appeal and ordered Italy’s Antitrust Authority to recalculate the fine amount. The ruling highlights the evolving interpretation of when a refusal of interoperability may breach EU competition law.
The Missed Mediation That Became a Landmark
While a negotiated resolution might have been possible early on, the dispute ultimately demanded not just a solution for the parties, but broader guidance for the digital marketplace. A mediation path might have resolved the immediate conflict, but only a public judgment could clarify the duties of dominant platforms with respect to interoperability and fair access. The decision, backed by the European Court of Justice Justice’s preliminary ruling, broadens the interpretation of Article 102 of the Treaty on the Functioning of the European Union, emphasizing that digital dominance is not only about exclusivity but also about how power shapes interdependence.
Mediation and Antitrust: A Dialogue With Limits
The logic of mediation thrives on flexibility, creativity, and mutual gain. Antitrust law, by contrast, is born of asymmetry, where one party holds the power to exclude. A private resolution can clarify technical remedies and restore relationships, but it rarely creates the kind of public guidance that markets need to remain open.
European law already integrates “commitment decisions” (under Article 9 of Regulation 1/2003), enabling authorities to close cases when dominant firms offer behavioral commitments. These settlements are fast and efficient, but end without acknowledgment of wrongdoing and produce no legal precedent. The Google/Enel X path went the long way: investigation, fine, judicial review, and European Court guidance. This patience produced a precedent that will guide regulators, companies, and mediators alike.
The Public Value of a Precedent
The decision achieved what private settlement could not: clarity for the market about interoperability duties as part of a dominant platform’s “special responsibility,” predictability for smaller actors, telling innovators that access barriers may be challenged under competition law, and accountability for technology leaders, reminding digital giants that discretion in platform design has public consequences. These are collective goods – the public good of certainty – which mediation, by its confidential nature, cannot fully deliver.
Yet this does not diminish the value of mediation. It simply defines its proper place before conflict hardens into law. Mediation is most powerful as a preventive measure to keep dialogue alive until general rules must be established.
A European Voice: From Enforcement to Co-Creation
The European approach reflects a broader philosophy. Public enforcement builds the floor, and private dialogue can raise the ceiling. What makes the 2025 ruling remarkable is its timing. As the EU’s Digital Markets Act takes effect, the court’s reasoning confirms that even outside the act’s list of “gatekeepers,” dominant platforms bear enforceable duties of fairness.
Across the Atlantic: Different Tools, Similar Tensions
In the United States, the Department of Justice and the Federal Trade Commission frequently resolve cases through consent decrees, negotiated settlements filed with federal district courts that bind companies without admission of liability. Under the Tunney Act, courts must determine that DOJ consent decrees serve the public interest. They resemble EU commitment decisions but carry distinct procedural requirements.
Advantages: They provide judicial oversight, monitoring mechanisms, and ongoing supervision – typically lasting 10-20 years.
Disadvantages: Like their European counterparts, they are of limited precedential value. Settlement rates in U.S. antitrust enforcement exceed 90%, meaning the body of adjudicated antitrust law grows slowly and provides less doctrinal clarity about lawful conduct.
Recent U.S. debates reveal growing unease with this approach. The European Google ruling could resonate in Washington, not as a call for more fines, but as an invitation to rethink the balance between negotiated compliance and principled adjudication.
Learning From Each Other
Europe and America have more in common than they are different. Both seek to maintain innovation while avoiding over-regulation. From the European side, the U.S. could rediscover the virtue of precedent-building, a public statement of limits that clarifies expectations for all market participants. From the American side, Europe could improve consent-based implementation, ensuring that after the principle is declared, practical cooperation follows. In the spirit of mediation’s philosophy, each system could learn to “see the other as complement, not contrast.”
The Human Dimension Behind the Law
Beyond statutes and precedents lies the human story, engineers waiting for access, users longing for choice, policymakers balancing growth and fairness. In this case, mediation could have produced an early bridge, but once dialogue failed, the public decision became necessary to restore conditions for future dialogue.
An African proverb says: “When elephants fight, it is the grass that suffers.” The task of mediation is to make the elephants talk before they trample the field. The task of public law, when talk fails, is to rebuild the field so that others may grow.
Looking Ahead: Hybrid Justice for Digital Platforms
What this case ultimately teaches Europe – and perhaps America too – is that hybrid justice is the future, combining the humanity of mediation with the universality of precedent. This looks like:
- Preventive Mediation. Regulators could institutionalize early ADR windows before investigations harden – to let platforms and rivals co-design technical remedies under supervision.
- Public-Private Oversight. Settlements could be coupled with transparent publication of principles, preserving both efficiency and learning.
- Global Dialogue. As platform economies transcend borders, so must our dispute-resolution models. EU and U.S. agencies might exchange not just evidence but ethics: when to settle, when to decide.
If the digital world is a shared space, its governance cannot rely solely on courtroom battles or private bargains. It needs a rhythm: first listening, then deciding; first dialogue, then declaration.
Conclusion: From Case to Compass
The Consiglio di Stato’s 2025 ruling may appear as one more chapter in Europe’s regulatory assertiveness. Yet, when read through the lens of mediation, it becomes something deeper: a meditation on justice in the algorithmic age.
It reminds us that while some conflicts must be resolved privately, others must be decided publicly. It brings closure between parties; law brings coherence to society. Without the first, we lose peace; without the second, we lose principle.
Europe’s message to the world, and perhaps America’s opportunity for reflection, is that power, once concentrated, must meet both dialogue and law. Mediation humanizes justice; precedent universalizes it. Together, they form the twin lungs of a healthy digital democracy.
Giuseppe De Palo is an international mediator at JAMS and president of the Dialogue Through Conflict Foundation. A former senior official of the United Nations, he has advised the European Parliament, as well as national parliaments within the EU and beyond, on mediation policy. His publications on mediation law and policy have been translated into several languages. The views expressed are his own. This article appears in a forthcoming issue of NY Dispute Resolution Lawyer, the publication of the Dispute Resolution Section. For more information, please visit nysba.org/drs.
References:
Alessandro Boso Caretta & Chloe Cumber, Refusal To Supply: A New Test for Digital Platforms, DLA Piper (via Lexology) (Mar. 18, 2025), https://www.lexology.com/library/detail.aspx?g=1e9681f4-0356-41c9-9b92-86f39c7542fc.
Foo Yun Chee, Google Loses Fight on Android Auto Access, Bodes Ill for Big Tech, Reuters (Feb. 25, 2025), https://www.reuters.com/technology/google-loses-fight-android-auto-access-bodes-ill-big-tech-2025-02-25/.
Peggy Corlin, European Judges Rap Google Over Access Denied to Auto App, Euronews (Feb. 25, 2025), https://www.euronews.com/my-europe/2025/02/25/european-judges-rap-google-over-access-denied-to-auto-app.
Lewis Crofts, Google Must Grant Android Auto Interoperability Despite No ‘Indispensability,’ EU Court Rules, MLex (Feb. 25, 2025), https://www.mlex.com/mlex/articles/2302339/google-must-grant-android-auto-interoperability-despite-no-indispensability-eu-court-rules.
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Mario Zúñiga, The Android Auto Decision and the European Antitrust Paradox, Truth on the Market (Apr. 2, 2025), https://truthonthemarket.com/2025/04/02/the-android-auto-decision-and-the-european-antitrust-paradox/.
