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The case concerned the Italian competition and markets authority’s (AGCM) finding in 2017 that Unilever had abused its dominant position in ice cream at bars, beach resorts and campsites through its “Algida” brand.
Independent distributors imposed exclusivity clauses on operators of outlets, meaning they could not sell ice cream of competitors, such as small popsicle maker La Bomba which complained to Italian authorities.
Unilever produced economic studies to show the practice did not exclude competitors, but the AGCM said it did not have to analyse them, prompting Unilever to appeal to Italy’s Council of State. It referred two questions to the Court of Justice of the European Union.
First, it found that the abusive conduct by distributors could be ascribed to Unilever if the conduct was not adopted independently by the distributors.
Secondly, it looked into whether the AGCM should have examined Unilever’s economic analysis in determining whether the exclusivity clauses were capable of excluding market competitors.
The court found that the competition authority should have assessed the evidence that might demonstrate that practices at issue would not exclude efficient competitors.
($1 = 0.9239 euros)
