Link: https://curia.europa.eu/jcms/upload/docs/application/pdf/2023-01/cp230014en.pdf

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Abuse of a dominant position: exclusivity clauses in distribution contracts must be capable of having exclusionary effects

The competition authority is obliged to assess that actual capacity to exclude by also taking into account the evidence submitted by the undertaking in a dominant position

By decision of 31 October 2017, the Italian Competition and Markets Authority (‘the AGCM’) 1 found that Unilever Italia Mkt. Operations Srl (‘Unilever’) had abused its dominant position on the Italian market for the sale of individually packaged ice cream intended for consumption ‘outside’, that is to say, away from consumers’ homes, at various sales outlets.

The abuse alleged against Unilever resulted from conduct materially committed not by that company, but by independent distributors of its products who had imposed exclusivity clauses on the operators of those sale outlets. In that regard, the AGCM considered, inter alia, that the practices which were the subject of its investigation had precluded, or at least limited, the possibility for competing operators to engage in competition based on the merits of their products.

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