Request for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 15 December 2020 – Unilever Italia Mkt. Operations Srl v Autorità Garante della Concorrenza e del Mercato

(Case C-680/20)

Language of the case: Italian

Referring court

Consiglio di Stato

Parties to the main proceedings

Appellant: Unilever Italia Mkt. Operations Srl

Respondent: Autorità Garante della Concorrenza e del Mercato

Questions referred

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 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?

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?

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