The case brought before the EU Court of Justice by way of preliminary rulings arises from a decision of the Italian Competition Supervisory Authority (AGCM) which deemed that an undertaking in dominant position availed itself of a number of exclusive distributors for the sale of its own products (take-away ice creams) and held that said undertaking required that its distributors adopted certain behaviour which was infringing competition and, benefitting from its market force, also having an impact to downstream sale points. The AGCM also deemed that the concerned conduct was essentially attributable to the dominant undertaking and sanctioned the latter with a fine of over 60 000 000 EUR for abuse of dominant position.

Following the appeal filed by the dominant undertaking, firstly before the competent Administrative Court (Tribunale Amministrativo Regionale) and then before the Italian highest Administrative Court (Consiglio di Stato), the latter indeed sought, by way of preliminary rulings to the Court of Justice, the interpretation of article 102 of the TFEU forbidding the abuse of dominant position.

Firstly, the ECJ confirmed that when it is given evidence that the dominant undertaking, by means of such an exclusive distribution system, has actually organised pressing activities on competition, this represents an abuse of dominant position. However, the Court specified 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” (operative part, point 1).

Moreover, after having recapitulated its own case-law on abuses of dominant position, the ECJ specifically observed that 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  (…)”

Essentially, the Court stressed the need for the AGCM to provide evidence that is particularly consolidated, as well as the obligation for the AGCM to analyze evidence provided by the same undertaking accused of infringing EU competition law, in order to give reasons for the alleged abuse of dominant position.