Judges D Gratsias, M Ilešič, I Jarukaitis, Z Csehi
Advocate General A Rantos
The claimant undertaking, which manufactured and sold ice cream, enjoyed a dominant position on the Italian market for the sale of individually packaged ice cream. It distributed, via a network of distributors in Italy, individually packaged ice cream, sold in outlets on beaches and in bars, cafés, and leisure sites. The distributors imposed exclusivity clauses on the operators of the sales outlets, obliging them to obtain their entire supplies of individually packaged ice cream from the claimant undertaking in return for rebates and commissions. A competitor company lodged a complaint with the Italian Competition and Markets Authority alleging that the undertaking was abusing its dominant position on the relevant market. During its investigation, the authority considered that it was not obliged to analyse the studies produced by the undertaking in order to demonstrate that the practices under investigation did not have exclusionary effects against its equally efficient competitors. The “efficient competitor” tests were various assessments which determined the ability of a practice to produce anti-competitive exclusionary effects by reference to the ability of a hypothetical competitor of the dominant undertaking, which was as efficient as that undertaking in terms of cost structure, to offer customers a rate which was sufficiently advantageous to encourage them to switch supplier, without that competitor incurring losses. The competition authority found that the undertaking had abused its dominant position on the market in question in breach of article 102 TFEU and imposed a fine. A court of first instance dismissed the undertaking’s action against that decision. On the undertaking’s appeal, the Council of State, Italy stayed the proceedings and referred to the Court of Justice of the European Union for a preliminary ruling the question, inter alia, whether, in order to find an abuse of a dominant position under article 102 TFEU, where there were exclusivity clauses in distribution contracts, the competition authority had to establish that those clauses had the effect of excluding equally efficient competitors from the market, and whether the authority had to examine any economic analyses produced by the undertaking, in particular where they were based on an “as efficient competitor” test.
On the reference—
Held, although exclusivity clauses gave rise to legitimate concerns of competition, their ability to exclude competitors was not automatic. If a competition authority suspected that an undertaking had infringed article 102 TFEU by using exclusivity clauses, and the undertaking had produced evidence that the clauses were not capable of excluding equally efficient competitors from the market, the authority had to ensure that those clauses were actually capable of such exclusion. The competition authority was also required to assess the ability of those clauses to restrict competition where the undertaking tendered justifications for its conduct. In any event, the submission of evidence capable of demonstrating the inability to produce restrictive effects gave rise to an obligation for the competition authority to examine that evidence. It followed that, where the undertaking in a dominant position had produced an economic study in order to demonstrate that the practice of which it was accused was not capable of excluding competitors, the competition authority could not exclude the relevance of that study without setting out its reasons. The “as efficient competitor” test was one of a number of methods for assessing whether a practice was capable of producing exclusionary effects. Further, its use, which only took into consideration price competition, could be inappropriate in certain situations, in particular in relation to certain non-pricing practices. Nevertheless, the relevance of such a test could not be conclusively ruled out. Consequently, although the use of such a test was optional, if the results of such a test were submitted by the undertaking, the competition authority had to assess the probative value of those results (judgment, paras 51–58, 60, 62, operative part, para 2).
G Bitonto, S Borocci, S Lembo, L Perfetti, C Tesauro and C Thomas for the claimant undertaking.
F Sclafani for the Competition and Markets Authority, Italy.
G Palmieri, agent, and P Gentili for the Italian Government.
K Boskovits, agent, for the Greek Government.
G Conte, N Khan and C Sjödin, agents, for the European Commission.