# C_2023083EN.01000301.xml

| 6.3.2023 | EN | Official Journal of the European Union | C 83/3 |
| --- | --- | --- | --- |

6.3.2023

EN

Official Journal of the European Union

C 83/3

---

Judgment of the Court (Fifth Chamber) of 19 January 2023 (request for a preliminary ruling from the Consiglio di Stato — Italy) — Unilever Italia Mkt. Operations Srl v Autorità Garante della Concorrenza e del Mercato

(Case C-680/20, (1) Unilever Italia Mkt. Operations)

(Reference for a preliminary ruling - Competition - Article 102 TFEU - Dominant position - Imputation, to the producer, of actions of its distributors - Existence of contractual links between the producer and the distributors - Concept of ‘economic unit’ - Scope - Abuse - Exclusivity clause - Need to demonstrate the effects on the market)

(2023/C 83/03)

Language of the case: Italian

Referring court

Consiglio di Stato

Parties to the main proceedings

Applicant: Unilever Italia Mkt. Operations Srl

Defendant: Autorità Garante della Concorrenza e del Mercato

Intervening party: La Bomba Snc

Operative part of the judgment

| 1. | Article 102 TFEU must be interpreted as meaning that the actions of distributors forming part of the distribution network for goods and services of a producer in a dominant position may be imputed to that producer if it is established that those actions were not adopted independently by those distributors, but form part of a policy that is decided unilaterally by that producer and implemented through those distributors; |
| --- | --- |

1.

Article 102 TFEU must be interpreted as meaning that the actions of distributors forming part of the distribution network for goods and services of a producer in a dominant position may be imputed to that producer if it is established that those actions were not adopted independently by those distributors, but form part of a policy that is decided unilaterally by that producer and implemented through those distributors;

| 2. | Article 102 TFEU must be interpreted as meaning that, where there are exclusivity clauses in distribution contracts, a competition authority is required, in order to find an abuse of a dominant position, to establish, in the light of all the relevant circumstances and in view of, where applicable, the economic analyses produced by the undertaking in a dominant position as regards the inability of the conduct at issue to exclude competitors that are as efficient as the dominant undertaking from the market, that those clauses are capable of restricting competition. The use of an ‘as efficient competitor’ test is optional. However, if the results of such a test are submitted by the undertaking concerned during the administrative procedure, the competition authority is required to assess the probative value of those results. |
| --- | --- |

2.

Article 102 TFEU must be interpreted as meaning that, where there are exclusivity clauses in distribution contracts, a competition authority is required, in order to find an abuse of a dominant position, to establish, in the light of all the relevant circumstances and in view of, where applicable, the economic analyses produced by the undertaking in a dominant position as regards the inability of the conduct at issue to exclude competitors that are as efficient as the dominant undertaking from the market, that those clauses are capable of restricting competition. The use of an ‘as efficient competitor’ test is optional. However, if the results of such a test are submitted by the undertaking concerned during the administrative procedure, the competition authority is required to assess the probative value of those results.

---

(1)  OJ C 79, 8.3.2021.

---