Opinion of the Advocate General — ECLI:EU:C:2022:586
Date: 2022-07-14
Language of the case: Italian
Subject matter: Competition;Agreements, decisions and concerted practices
Procedure: Reference for a preliminary ruling;Reference for a preliminary ruling - inadmissible
Origin: Italy

Summary C­680/20 – 1 
Case C­680/20 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
15 December 2020 
Referring court:  
Consiglio di Stato (Council of State, Italy) 
Date of the decision to refer:  
7 December 2020 
Appellant:  
Unilever Italia Mkt. Operations Srl 
Respondent:  
Autorità Garante della Concorrenza e del Mercato 
  
Subject matter of the action in the main proceedings 
Appeal against the judgment of the Tribunale Amministrativo Regionale per il 
Lazio (Regional Administrative Court, Lazio, Italy), which dismissed the action 
brought by the appellant against the penalty measure imposed on it by the Autorità 
Garante della Concorrenza e del Mercato (Italian Competition Authority) for 
abuse of a dominant position in the national market for the distribution and 
marketing of packaged ice creams to resellers. 
Subject matter and legal basis of the reference 
Interpretation of Articles 101 and 102 TFEU, pursuant to Article 267 TFEU 
Questions referred 
(1) In cases other than those involving corporate control, what are the relevant 
criteria for establishing whether contractual coordination among formally 
autonomous and independent economic operators results in the creation of a single 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C­680/20 
 
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economic entity for the purposes of Articles 101 and 102 TFEU? Specifically, can 
the existence of a certain level of interference in the commercial decisions of 
another undertaking, which is typical of cooperative commercial relationships 
between producers and distribution intermediaries, be deemed sufficient reason to 
classify those undertakings as part of the same economic unit? Is it necessary for a 
‘hierarchical’ link to exist between the two undertakings, identified by the 
existence of a contract under which several autonomous undertakings ‘submit’ to 
management and coordination by one of their number, thus making it necessary 
for the Authority to prove that there is a systemic and consistent range of 
guidelines likely to influence the undertaking’s management decisions, namely 
strategic and operational decisions of a financial, industrial and commercial 
nature? 
(2) In assessing whether there has been abuse of a dominant position implemented 
by means of exclusivity clauses, must Article 102 TFEU be interpreted as 
meaning that the competition authority has an obligation to verify whether such 
clauses have the effect of excluding equally efficient competitors from the market, 
and to examine specifically the economic analyses produced by the party 
concerning the actual ability of the alleged conduct to exclude equally efficient 
competitors from the market? In the case of exclusionary exclusivity clauses or 
conduct characterised by a large number of abusive practices (loyalty-inducing 
rebates and exclusivity clauses), does the Authority have a legal obligation to base 
its allegation of a competition offence on the equally efficient competitor 
criterion? 
Provisions of EU law cited 
Articles 101 and 102 TFEU 
Provisions of national law cited 
Article 3 of legge 10 ottobre 1990, n. 287 – Norme per la tutela della concorrenza 
e del mercato (Law No 287 of 10 October 1990 – Provisions for the protection of 
competition and the market): ‘Abuse of a dominant position within the national 
market or a substantial part of it by one or more undertaking shall be 
prohibited …’ 
Brief outline of the facts and the main proceedings 
1 Unilever Italia Mkt. Operations Srl (‘Unilever’) is an undertaking active in the 
development and sale of fast-moving consumer goods. It covers a range of well-
known brands, with those in the ice cream sector including Algida and Carte d’Or. 
La Bomba snc is a company producing ice lollies that is active in certain regions 
in central Italy. 
UNILEVER ITALIA MKT. OPERATIONS 
 
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2 In a complaint submitted to the Autorità Garante della Concorrenza e del Mercato 
(the Italian Competition Authority) (‘the Competition Authority’), La Bomba 
alleges that, over the last few years, Unilever ordered the operators of beach 
resorts and bars operating as its resellers not to sell ice lollies of the La Bomba 
brand alongside its own products but, rather, in separate refrigerated counters, 
threatening to no longer apply the agreed rebates or to terminate the sales 
agreements and also imposing penalty payments. 
3 The Competition Authority held that Unilever had adopted a strategy that 
excluded competition on merit. It therefore imposed a financial penalty and 
ordered that the conduct considered to be unlawful cease, on the basis of the 
following conclusions: (a) Unilever holds a dominant position in the relevant 
market; (b) Unilever’s 150 local distributors (‘the concessionaires’) are not 
independent undertakings and their commercial practices are attributable to 
Unilever; and (c) the actions by Unilever and its concessionaires in the market, 
consisting in particular in the imposition of product exclusivity obligations and the 
application of rebates and payments contingent upon the achievement of sales 
targets, represent an abuse of a dominant position under Article 102 TFEU. 
4 Unilever brought an action against that measure before the Tribunale 
Amministrativo Regionale per il Lazio (Regional Administrative Court, Lazio). 
An appeal against the decision given by that court dismissing that action is 
pending before the referring court, the Consiglio di Stato (Council of State, Italy).  
The essential arguments of the appellant in the main proceedings 
5 The appellant alleges, in particular, methodological errors in the definition of the 
relevant market (deemed to include bulk ice cream as a product that could be 
substituted for packaged ice cream) and of the geographical market (not deemed 
to include the entire country but, rather, only the local market) and a breach of 
several aspects of Article 102 TFEU. It claims that: (a) Unilever does not have a 
dominant position; (b) its local concessionaires are responsible, each within its 
own area, for the sale of Unilever products, and the effects of their conduct cannot 
therefore be attributed to Unilever; and (c) the Competition Authority did not 
determine the extent to which the conduct attributed to Unilever was actually able 
to exclude equally efficient competitors from the market (the exclusivity 
agreements between Unilever and the resellers cover just 0.8% of the total number 
of sales outlets active in Italy, compared to 8% covered by the exclusivity 
agreements concluded by the concessionaires with their customers) and did not 
weigh the allegedly anti-competitive effects against the pro-competitive effects 
represented by the increased distribution of products and the reduced prices for 
operators and consumers. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C­680/20 
 
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Succinct presentation of the reasons for the request for a preliminary ruling 
6 In this case, the abusive conduct alleged by the Competition Authority, despite 
having been actually implemented not by Unilever but by its concessionaires, has 
been attributed solely to Unilever on the basis that Unilever and its 
concessionaires can be classified as a single economic entity. Notwithstanding the 
fact that it is, in fact, the responsibility of the national courts to determine the 
nature of the contractual relationship between Unilever and its concessionaires, 
there is a legal need to clarify the notions of ‘undertaking’ and ‘economic agent’ 
in competition law and the criteria for subjective attribution of the offence. In 
particular, it is necessary to clarify in what circumstances coordination among 
formally autonomous and independent economic operators is such as to represent 
a single decision-making centre, with the consequence that the conduct of one 
could also be attributed to the other. 
7 The referring court first cites the settled case-law of the Court of Justice in relation 
to the identification of a single decision-making centre with respect to the 
phenomenon of groups of undertakings, focusing on the need to prove specifically 
that the decisive influence of the parent company was actually exercised over its 
subsidiary (judgments in Areva and Others, Joined Cases C­247/11 P and 
C­253/11 P; Schindler Holding Ltd, Case C­501/11; Dow Chemical, Case 
C­179/12 P). It then indicates that, in Italian commercial law, in situations of de 
facto or de jure shareholder control, the party responsible for the management and 
coordination of companies is presumed by law, whereas if that responsibility is 
allocated on the basis of a contract concluded with the companies concerned or 
clauses in their articles of association, it must be proven (codice civile (Italian 
Civil Code), Article 2497-sexies and -septies, Article 2359). 
8 With reference to cases involving contractual coordination, such as the case at 
issue in the main proceedings, the referring court notes that all cooperative 
commercial relationships, including those – of relevance here – underlying the 
sales concession, are characterised by a certain degree of interference by the 
principal in the procedures used by the intermediary to perform the service. 
However, these do not necessarily result in management activities being carried 
out, and could in fact merely regulate a particular form of division of labour 
between large undertakings and small and medium-sized enterprises. 
Independence does not have to be absolute, for example when the concessionaire 
encounters constraints in certain instructions received but this does not call into 
question the contractor’s commercial and decision-making independence and 
direct responsibility for the costs and risks associated with its specific activities. 
Indeed, in the classical hypothesis, a sales concessionaire does not merely bring 
together the parties concluding a sale, as would an agent, who facilitates the 
conclusion of future contracts between customer and third parties. Rather, the 
sales concessionaire itself buys from the principal and resells to third parties, 
having the obligation to promote the goods and collecting the difference between 
the purchase price and the resale price. 
UNILEVER ITALIA MKT. OPERATIONS 
 
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9 On that basis, by its first question, the referring court asks, in essence, what 
structural link must exist, in abstract, between the producer and its intermediaries 
for those parties to be classified as a single economic entity under competition 
law. Is normal interference in those commercial relationships sufficient or is there 
a need for real control of one or more undertakings by another, demonstrated by 
formal documents (such as decisions or contractual agreements) or by simple 
guidelines (instructions, behavioural rules, service orders), which are likely to 
significantly influence the management decisions made by the commercial 
intermediary?  
That point is all the more relevant because the financial penalty in question is also 
a ‘criminal’ sanction (being ‘punitive’ because of its total amount) for the purpose 
of Article 7 ECHR and may therefore only be imposed in the cases and for the 
periods stipulated by law. 
10 The second doubt as to interpretation, raised by the referring court in the second 
question, relates to the objective aspect of the offence and, specifically, to the 
standard of proof incumbent on the competition authorities in order to determine 
the existence of exclusionary abusive conduct. As in Case C­377/20, currently 
pending before the Court of Justice, the Council of State is asking whether – 
despite the fact that there is behaviour that, in abstract terms, is liable to produce 
restrictive effects – the court can nonetheless admit evidence from the undertaking 
being sanctioned that there was, in fact no restrictive effect. 
11 In order to establish the importance to be attached to the current or potential 
impact on competition in the assessment under Article 102 TFEU, the referring 
court makes particular reference to the Intel judgment (Case C­413/14 P). 
According to the Commission, Intel, leader in the computer processor market, 
operated a system of rebates and payments in order to exclusively supply 
computer manufacturers and exclude a competitor from the market for those 
goods. Considering those behaviours to be intrinsically anti-competitive, the 
General Court asserted that, in determining whether the conduct was abusive, 
there was no need to assess the current or potential impact of that conduct on 
competition in the light of all of the circumstances of the case. Conversely, the 
Court of Justice reversed that position and concluded that it was necessary to take 
into consideration the arguments raised by Intel aimed at highlighting certain 
alleged errors made by the Commission in analysing whether the system of 
loyalty-inducing rebates in question was actually able to foreclose the market to 
competitors that were at least equally efficient (‘the as-efficient-competitor (AEC) 
test’). 
12 Invoking the abovementioned Intel judgment, the appellant alleges that the 
Competition Authority did not carry out any analysis of the actual effects of 
Unilever’s conduct (and thus of the absence of exclusionary effects in respect of 
its equally efficient competitors) and of the corresponding pro-competitive effects 
(demonstrated by the study commissioned by Unilever from a respected economic 
consultancy firm). The Competition Authority asserts, however, that the principles 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C­680/20 
 
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stated in the Intel judgment do not apply to this case, since they apply only to 
abuses committed using loyalty-inducing rebates. The Court of Justice merely 
pointed out a ‘formal error’ made by the General Court, which did not rule on the 
allegations made by the applicant in relation to the AEC test. In any case, no test 
would be capable of analysing a large number of abusive practices at the same 
time. 
13 On that basis, the referring court would like to know whether – as the appellant 
asserts – the principles laid down in the Intel judgment can be extended to cover 
exclusivity clauses or conduct involving multiple abusive practices and, if 
appropriate, in what cases or under what conditions the relevance of the AEC test 
or of the studies and in-depth analyses produced by the undertaking can be 
discounted. In particular, it would like to know whether an assessment by the 
Competition Authority that considers irrelevant the AEC test and the studies 
serving the same function in cases of conduct such as that in this case is lawful in 
the light of the Intel judgment.