Aude Guyon and Pauline Klein of Fiducial Legal by Lamy discuss the extent to which dominant companies may be held liable for the abusive conduct of their distributors \u2013 and look at how the recent Unilever ruling realigned the standard of proof when it comes to abuse of dominance through exclusivity clauses with Intel case law.<\/p>\n\n\n\n\n\n
In the case of Unilever Italia (No c-680\/20), the ECJ preliminarily ruled in its judgment of 19 January 2023 that dominant companies may be held liable for abusive behaviour carried out by distributors in the absence of a corporate link. The ECJ also clarified the standard of proof regarding abuse of dominant position implemented through exclusivity clauses.<\/p>\n\n\n\n\n\n
In its decision of 31 October 2017, the Italian Competition Authority (Autorit\u00e0 Garante della Concorrenza e del Mercato<\/em>, or AGCM) imposed a fine of more than EUR60 million on Unilever for abusing its dominant position in the Italian market. In respect of the sale of individually packaged ice-creams intended for \u201cout-of-home\u201d consumption, Unilever was found in breach of Article 102 of the Treaty on the Functioning of the European Union (TFEU).<\/p>\n\n\n\n In this case, the abuse described by the AGCM resulted from conduct materially committed not by Unilever but by its distributors, who had imposed exclusivity clauses on the operators of the sales outlets. The AGCM considered Unilever solely responsible for the abuse on the grounds that Unilever and its distributors formed one and the same economic entity, owing to Unilever\u2019s involvement in its distributors\u2019 commercial policy.<\/p>\n\n\n\n\n\n In addition, the AGCM considered that the mere use of exclusivity clauses by an undertaking in a dominant position was sufficient to establish the abuse under Article 102 of the TFEU. Therefore, the AGCM declined to analyse the economic studies produced by Unilever purporting to demonstrate that the practices had no exclusionary effects because they were not capable of foreclosing an equally efficient competitor.<\/p>\n\n\n\n\n\n Seized in appeal, the Italian Council of State (Consiglio di Stato<\/em>) referred two practical questions to the ECJ regarding the application of abuse of dominance under Article 102 of the TFEU.<\/p>\n\n\n\n In a nutshell, the ECJ had to determine:<\/p>\n\n\n\n In the Unilever case, the ECJ did not directly answer the first question \u2013 ie, the circumstances in which the conduct of one autonomous and independent undertaking may be attributed to another company. Nor did it make reference to the concept of a \u201csingle economic unit\u201d. Instead, the ECJ focused on the conditions required for the imputation of liability between independent undertakings. In a nutshell, the ECJ held that \u2013 under certain conditions \u2013 a dominant company may be held liable for the actions of distributors forming part of the distribution networks.<\/p>\n\n\n\n The ECJ ruled that a dominant company can be held liable for the abusive conduct of its distributors if it is established that (i) said conduct was not adopted independently by those distributors but, rather, (ii) formed part of a commercial policy that was decided unilaterally by the supplier and (iii) implemented through the distributors.<\/p>\n\n\n\n As such, the distributors and the network to which they belong must be considered \u201cmerely an instrument of territorial implementation of the company in dominant position\u201d where said company has unilaterally decided to put in place the abusive conduct. In such situations, the dominant company must be regarded as the perpetrator and is thus liable for the implementation of the practices.<\/p>\n\n\n\n\n\n This particularly applies to scenarios (such as the Unilever case) in which the supplier in a dominant position compels its distributors to enter into standard contracts with sales outlets if such contracts are drawn up entirely by the supplier and contain exclusivity clauses for the benefit of the supplier\u2019s products.<\/p>\n\n\n\n Had the ECJ expanded the concept of \u201csingle economic entity\u201d, the victims of the abusive conduct in the Unilever case could have sued any member of this entity for damages \u2013 in particular, the distributor who followed the instructions of the producer. By focusing on the notion of imputation, however, the ECJ prevents victims of abusive conduct from claiming for damages against any party other than the producer.<\/p>\n\n\n\n\n\n As regards the second question, the ECJ recalled that \u2013 even though it is down to competition authorities to prove the abusive nature of a conduct \u2013 it is not necessary to prove that the conduct actually has anti-competitive effects. Rather, it is sufficient to prove \u201cby tangible evidence\u201d that the conduct was capable of restricting competition on the merits. This demonstration should not be limited to empirical or behavioural studies \u2013 indeed, the specific circumstances of the case must also be taken into account.<\/p>\n\n\n\n In a similar vein to its landmark Intel judgment of 6 September 2017 (Intel v Commission, C-413\/14 P), which related to rebates, the ECJ explained that exclusivity clauses \u2013 despite, by their very nature, giving rise to legitimate concerns of competition \u2013 are not automatically able to exclude competitors. Therefore, where a competition authority suspects an abuse by a company in a dominant position and where said company provides supporting evidence during the administrative procedure that disputes the capacity of the exclusivity clauses to exclude equally effective competitors from the market, the ECJ places an obligation on the competition authority to ensure that those exclusivity clauses are \u2013 given the circumstances of the case \u2013 effectively capable of excluding from the market those competitors who are as efficient as the undertaking in question.<\/p>\n\n\n\n\n\n As with the Intel case, the foregoing enables undertakings to argue that exclusivity clauses can be objectively justified when their restrictive effects on competition are outweighed by efficiencies. Consequently, the ECJ held that \u2013 where a dominant company has put forward evidence demonstrating the lack of restrictive capacity of exclusivity clauses \u2013 a competition authority must examine such evidence.<\/p>\n\n\n\n Finally, as regards the standard of proof, the ECJ asserted that a competition authority is not required to use the \u201cas efficient competitor test\u201d in order to prove the capacity of a practice to produce exclusionary effects. However, should a party produce the results of such a test, the competition authority must then assess the probative value of those results.<\/p>\n\n\n\n By this decision, the ECJ clarifies the standard of proof that must be met when assessing exclusivity clauses under Article 102 of the TFEU and also realigns case law on rebates and exclusivity clauses. In terms of economic evidence, the recent Unilever ruling and the Intel case of 2017 respectively demonstrate that competition authorities must follow an effects-based approach for exclusivity clauses and rebates clauses alike.<\/p>\n\n\n\n\n\n\n","protected":false},"featured_media":0,"template":"","meta":[],"publication":[],"locations":[],"blocks":[{"blockName":"core\/paragraph","attrs":[],"innerBlocks":[],"innerHTML":"\n Aude Guyon and Pauline Klein of Fiducial Legal by Lamy discuss the extent to which dominant companies may be held liable for the abusive conduct of their distributors \u2013 and look at how the recent Unilever ruling realigned the standard of proof when it comes to abuse of dominance through exclusivity clauses with Intel case law.<\/p>\n","innerContent":["\n Aude Guyon and Pauline Klein of Fiducial Legal by Lamy discuss the extent to which dominant companies may be held liable for the abusive conduct of their distributors \u2013 and look at how the recent Unilever ruling realigned the standard of proof when it comes to abuse of dominance through exclusivity clauses with Intel case law.<\/p>\n"]},{"blockName":null,"attrs":[],"innerBlocks":[],"innerHTML":"\n\n","innerContent":["\n\n"]},{"blockName":"lazyblock\/chambers-media-list","attrs":{"media-list":"%5B%7B%22image%22:%7B%22alt%22:%22Aude%20Guyon,%20Fiducial%20Legal%20by%20Lamy,%20Chambers%20Expert%20Focus%20contributor%22,%22title%22:%22Aude%20Guyon%20circ%22,%22caption%22:%22%22,%22description%22:%22%22,%22id%22:15404,%22link%22:%22https:\/\/wpcms.chambers.com\/?attachment_id=15404%22,%22url%22:%22https:\/\/assets.chambers.com\/wp-content\/uploads\/2023\/04\/14143925\/Aude-Guyon-circ.jpg%22,%22sizes%22:%7B%22thumbnail%22:%7B%22height%22:120,%22width%22:120,%22url%22:%22https:\/\/assets.chambers.com\/wp-content\/uploads\/2023\/04\/14143925\/Aude-Guyon-circ-120x120.jpg%22,%22orientation%22:%22landscape%22%7D,%22medium%22:%7B%22height%22:300,%22width%22:300,%22url%22:%22https:\/\/assets.chambers.com\/wp-content\/uploads\/2023\/04\/14143925\/Aude-Guyon-circ-300x300.jpg%22,%22orientation%22:%22landscape%22%7D,%22full%22:%7B%22url%22:%22https:\/\/assets.chambers.com\/wp-content\/uploads\/2023\/04\/14143925\/Aude-Guyon-circ.jpg%22,%22height%22:767,%22width%22:768,%22orientation%22:%22landscape%22%7D%7D%7D,%22title%22:%22Aude%20Guyon%22%7D,%7B%22image%22:%7B%22alt%22:%22Pauline%20Klein,%20Fiducial%20Legal%20by%20Lamy,%20Chambers%20Expert%20Focus%20contributor%22,%22title%22:%22Pauline%20Klein%20circ%22,%22caption%22:%22%22,%22description%22:%22%22,%22id%22:15406,%22link%22:%22https:\/\/wpcms.chambers.com\/?attachment_id=15406%22,%22url%22:%22https:\/\/assets.chambers.com\/wp-content\/uploads\/2023\/04\/14144405\/Pauline-Klein-circ.jpg%22,%22sizes%22:%7B%22thumbnail%22:%7B%22height%22:120,%22width%22:120,%22url%22:%22https:\/\/assets.chambers.com\/wp-content\/uploads\/2023\/04\/14144405\/Pauline-Klein-circ-120x120.jpg%22,%22orientation%22:%22landscape%22%7D,%22medium%22:%7B%22height%22:300,%22width%22:300,%22url%22:%22https:\/\/assets.chambers.com\/wp-content\/uploads\/2023\/04\/14144405\/Pauline-Klein-circ-300x300.jpg%22,%22orientation%22:%22landscape%22%7D,%22large%22:%7B%22height%22:1024,%22width%22:1024,%22url%22:%22https:\/\/assets.chambers.com\/wp-content\/uploads\/2023\/04\/14144405\/Pauline-Klein-circ-1024x1024.jpg%22,%22orientation%22:%22landscape%22%7D,%22full%22:%7B%22url%22:%22https:\/\/assets.chambers.com\/wp-content\/uploads\/2023\/04\/14144405\/Pauline-Klein-circ.jpg%22,%22height%22:2080,%22width%22:2079,%22orientation%22:%22portrait%22%7D%7D%7D,%22title%22:%22Pauline%20Klein%22%7D%5D","blockId":"ZJgj8A","blockUniqueClass":"lazyblock-chambers-media-list-ZJgj8A"},"innerBlocks":[],"innerHTML":"","innerContent":[]},{"blockName":null,"attrs":[],"innerBlocks":[],"innerHTML":"\n\n","innerContent":["\n\n"]},{"blockName":"core\/paragraph","attrs":[],"innerBlocks":[],"innerHTML":"\n In the case of Unilever Italia (No c-680\/20), the ECJ preliminarily ruled in its judgment of 19 January 2023 that dominant companies may be held liable for abusive behaviour carried out by distributors in the absence of a corporate link. The ECJ also clarified the standard of proof regarding abuse of dominant position implemented through exclusivity clauses.<\/p>\n","innerContent":["\n In the case of Unilever Italia (No c-680\/20), the ECJ preliminarily ruled in its judgment of 19 January 2023 that dominant companies may be held liable for abusive behaviour carried out by distributors in the absence of a corporate link. The ECJ also clarified the standard of proof regarding abuse of dominant position implemented through exclusivity clauses.<\/p>\n"]},{"blockName":null,"attrs":[],"innerBlocks":[],"innerHTML":"\n\n","innerContent":["\n\n"]},{"blockName":"lazyblock\/chambers-header","attrs":{"header":"Background to the Unilever Italia Case","headerLevel":"3","blockId":"Z1EUUWx","blockUniqueClass":"lazyblock-chambers-header-Z1EUUWx"},"innerBlocks":[],"innerHTML":"","innerContent":[]},{"blockName":null,"attrs":[],"innerBlocks":[],"innerHTML":"\n\n","innerContent":["\n\n"]},{"blockName":"core\/paragraph","attrs":[],"innerBlocks":[],"innerHTML":"\n In its decision of 31 October 2017, the Italian Competition Authority (Autorit\u00e0 Garante della Concorrenza e del Mercato<\/em>, or AGCM) imposed a fine of more than EUR60 million on Unilever for abusing its dominant position in the Italian market. In respect of the sale of individually packaged ice-creams intended for \u201cout-of-home\u201d consumption, Unilever was found in breach of Article 102 of the Treaty on the Functioning of the European Union (TFEU).<\/p>\n","innerContent":["\n In its decision of 31 October 2017, the Italian Competition Authority (Autorit\u00e0 Garante della Concorrenza e del Mercato<\/em>, or AGCM) imposed a fine of more than EUR60 million on Unilever for abusing its dominant position in the Italian market. In respect of the sale of individually packaged ice-creams intended for \u201cout-of-home\u201d consumption, Unilever was found in breach of Article 102 of the Treaty on the Functioning of the European Union (TFEU).<\/p>\n"]},{"blockName":null,"attrs":[],"innerBlocks":[],"innerHTML":"\n\n","innerContent":["\n\n"]},{"blockName":"core\/paragraph","attrs":[],"innerBlocks":[],"innerHTML":"\n In this case, the abuse described by the AGCM resulted from conduct materially committed not by Unilever but by its distributors, who had imposed exclusivity clauses on the operators of the sales outlets. The AGCM considered Unilever solely responsible for the abuse on the grounds that Unilever and its distributors formed one and the same economic entity, owing to Unilever\u2019s involvement in its distributors\u2019 commercial policy.<\/p>\n","innerContent":["\n In this case, the abuse described by the AGCM resulted from conduct materially committed not by Unilever but by its distributors, who had imposed exclusivity clauses on the operators of the sales outlets. The AGCM considered Unilever solely responsible for the abuse on the grounds that Unilever and its distributors formed one and the same economic entity, owing to Unilever\u2019s involvement in its distributors\u2019 commercial policy.<\/p>\n"]},{"blockName":null,"attrs":[],"innerBlocks":[],"innerHTML":"\n\n","innerContent":["\n\n"]},{"blockName":"lazyblock\/chambers-quote","attrs":{"quote":" \u201cThe Italian Competition Authority considered the mere use of exclusivity clauses by a company in a dominant position sufficient to establish the abuse.\u201d<\/p>","blockId":"22anNu","blockUniqueClass":"lazyblock-chambers-quote-22anNu"},"innerBlocks":[],"innerHTML":"","innerContent":[]},{"blockName":null,"attrs":[],"innerBlocks":[],"innerHTML":"\n\n","innerContent":["\n\n"]},{"blockName":"core\/paragraph","attrs":[],"innerBlocks":[],"innerHTML":"\n In addition, the AGCM considered that the mere use of exclusivity clauses by an undertaking in a dominant position was sufficient to establish the abuse under Article 102 of the TFEU. Therefore, the AGCM declined to analyse the economic studies produced by Unilever purporting to demonstrate that the practices had no exclusionary effects because they were not capable of foreclosing an equally efficient competitor.<\/p>\n","innerContent":["\n In addition, the AGCM considered that the mere use of exclusivity clauses by an undertaking in a dominant position was sufficient to establish the abuse under Article 102 of the TFEU. Therefore, the AGCM declined to analyse the economic studies produced by Unilever purporting to demonstrate that the practices had no exclusionary effects because they were not capable of foreclosing an equally efficient competitor.<\/p>\n"]},{"blockName":null,"attrs":[],"innerBlocks":[],"innerHTML":"\n\n","innerContent":["\n\n"]},{"blockName":"lazyblock\/chambers-header","attrs":{"header":"Key Questions Concerning the Application of Abuse of Dominance","headerLevel":"2","blockId":"Z1o3HOP","blockUniqueClass":"lazyblock-chambers-header-Z1o3HOP"},"innerBlocks":[],"innerHTML":"","innerContent":[]},{"blockName":null,"attrs":[],"innerBlocks":[],"innerHTML":"\n\n","innerContent":["\n\n"]},{"blockName":"core\/paragraph","attrs":[],"innerBlocks":[],"innerHTML":"\n Seized in appeal, the Italian Council of State (Consiglio di Stato<\/em>) referred two practical questions to the ECJ regarding the application of abuse of dominance under Article 102 of the TFEU.<\/p>\n","innerContent":["\n Seized in appeal, the Italian Council of State (Consiglio di Stato<\/em>) referred two practical questions to the ECJ regarding the application of abuse of dominance under Article 102 of the TFEU.<\/p>\n"]},{"blockName":null,"attrs":[],"innerBlocks":[],"innerHTML":"\n\n","innerContent":["\n\n"]},{"blockName":"core\/paragraph","attrs":[],"innerBlocks":[],"innerHTML":"\n In a nutshell, the ECJ had to determine:<\/p>\n","innerContent":["\n In a nutshell, the ECJ had to determine:<\/p>\n"]},{"blockName":null,"attrs":[],"innerBlocks":[],"innerHTML":"\n\n","innerContent":["\n\n"]},{"blockName":"core\/list","attrs":[],"innerBlocks":[],"innerHTML":"\n In the Unilever case, the ECJ did not directly answer the first question \u2013 ie, the circumstances in which the conduct of one autonomous and independent undertaking may be attributed to another company. Nor did it make reference to the concept of a \u201csingle economic unit\u201d. Instead, the ECJ focused on the conditions required for the imputation of liability between independent undertakings. In a nutshell, the ECJ held that \u2013 under certain conditions \u2013 a dominant company may be held liable for the actions of distributors forming part of the distribution networks.<\/p>\n","innerContent":["\n In the Unilever case, the ECJ did not directly answer the first question \u2013 ie, the circumstances in which the conduct of one autonomous and independent undertaking may be attributed to another company. Nor did it make reference to the concept of a \u201csingle economic unit\u201d. Instead, the ECJ focused on the conditions required for the imputation of liability between independent undertakings. In a nutshell, the ECJ held that \u2013 under certain conditions \u2013 a dominant company may be held liable for the actions of distributors forming part of the distribution networks.<\/p>\n"]},{"blockName":null,"attrs":[],"innerBlocks":[],"innerHTML":"\n\n","innerContent":["\n\n"]},{"blockName":"core\/paragraph","attrs":[],"innerBlocks":[],"innerHTML":"\n The ECJ ruled that a dominant company can be held liable for the abusive conduct of its distributors if it is established that (i) said conduct was not adopted independently by those distributors but, rather, (ii) formed part of a commercial policy that was decided unilaterally by the supplier and (iii) implemented through the distributors.<\/p>\n","innerContent":["\n The ECJ ruled that a dominant company can be held liable for the abusive conduct of its distributors if it is established that (i) said conduct was not adopted independently by those distributors but, rather, (ii) formed part of a commercial policy that was decided unilaterally by the supplier and (iii) implemented through the distributors.<\/p>\n"]},{"blockName":null,"attrs":[],"innerBlocks":[],"innerHTML":"\n\n","innerContent":["\n\n"]},{"blockName":"core\/paragraph","attrs":[],"innerBlocks":[],"innerHTML":"\n As such, the distributors and the network to which they belong must be considered \u201cmerely an instrument of territorial implementation of the company in dominant position\u201d where said company has unilaterally decided to put in place the abusive conduct. In such situations, the dominant company must be regarded as the perpetrator and is thus liable for the implementation of the practices.<\/p>\n","innerContent":["\n As such, the distributors and the network to which they belong must be considered \u201cmerely an instrument of territorial implementation of the company in dominant position\u201d where said company has unilaterally decided to put in place the abusive conduct. In such situations, the dominant company must be regarded as the perpetrator and is thus liable for the implementation of the practices.<\/p>\n"]},{"blockName":null,"attrs":[],"innerBlocks":[],"innerHTML":"\n\n","innerContent":["\n\n"]},{"blockName":"lazyblock\/chambers-quote","attrs":{"quote":" \u201cBy focusing on the notion of imputation, the ECJ prevents victims of abusive conduct from claiming for damages against anyone but the producer.\u201d<\/p>","blockId":"AOwYN","blockUniqueClass":"lazyblock-chambers-quote-AOwYN"},"innerBlocks":[],"innerHTML":"","innerContent":[]},{"blockName":null,"attrs":[],"innerBlocks":[],"innerHTML":"\n\n","innerContent":["\n\n"]},{"blockName":"core\/paragraph","attrs":[],"innerBlocks":[],"innerHTML":"\n This particularly applies to scenarios (such as the Unilever case) in which the supplier in a dominant position compels its distributors to enter into standard contracts with sales outlets if such contracts are drawn up entirely by the supplier and contain exclusivity clauses for the benefit of the supplier\u2019s products.<\/p>\n","innerContent":["\n This particularly applies to scenarios (such as the Unilever case) in which the supplier in a dominant position compels its distributors to enter into standard contracts with sales outlets if such contracts are drawn up entirely by the supplier and contain exclusivity clauses for the benefit of the supplier\u2019s products.<\/p>\n"]},{"blockName":null,"attrs":[],"innerBlocks":[],"innerHTML":"\n\n","innerContent":["\n\n"]},{"blockName":"core\/paragraph","attrs":[],"innerBlocks":[],"innerHTML":"\n Had the ECJ expanded the concept of \u201csingle economic entity\u201d, the victims of the abusive conduct in the Unilever case could have sued any member of this entity for damages \u2013 in particular, the distributor who followed the instructions of the producer. By focusing on the notion of imputation, however, the ECJ prevents victims of abusive conduct from claiming for damages against any party other than the producer.<\/p>\n","innerContent":["\n Had the ECJ expanded the concept of \u201csingle economic entity\u201d, the victims of the abusive conduct in the Unilever case could have sued any member of this entity for damages \u2013 in particular, the distributor who followed the instructions of the producer. By focusing on the notion of imputation, however, the ECJ prevents victims of abusive conduct from claiming for damages against any party other than the producer.<\/p>\n"]},{"blockName":null,"attrs":[],"innerBlocks":[],"innerHTML":"\n\n","innerContent":["\n\n"]},{"blockName":"lazyblock\/chambers-header","attrs":{"header":"What does it take to prove abuse of dominance in exclusivity clauses?","headerLevel":"3","blockId":"Z34yEv","blockUniqueClass":"lazyblock-chambers-header-Z34yEv"},"innerBlocks":[],"innerHTML":"","innerContent":[]},{"blockName":null,"attrs":[],"innerBlocks":[],"innerHTML":"\n\n","innerContent":["\n\n"]},{"blockName":"core\/paragraph","attrs":[],"innerBlocks":[],"innerHTML":"\n As regards the second question, the ECJ recalled that \u2013 even though it is down to competition authorities to prove the abusive nature of a conduct \u2013 it is not necessary to prove that the conduct actually has anti-competitive effects. Rather, it is sufficient to prove \u201cby tangible evidence\u201d that the conduct was capable of restricting competition on the merits. This demonstration should not be limited to empirical or behavioural studies \u2013 indeed, the specific circumstances of the case must also be taken into account.<\/p>\n","innerContent":["\n As regards the second question, the ECJ recalled that \u2013 even though it is down to competition authorities to prove the abusive nature of a conduct \u2013 it is not necessary to prove that the conduct actually has anti-competitive effects. Rather, it is sufficient to prove \u201cby tangible evidence\u201d that the conduct was capable of restricting competition on the merits. This demonstration should not be limited to empirical or behavioural studies \u2013 indeed, the specific circumstances of the case must also be taken into account.<\/p>\n"]},{"blockName":null,"attrs":[],"innerBlocks":[],"innerHTML":"\n\n","innerContent":["\n\n"]},{"blockName":"core\/paragraph","attrs":[],"innerBlocks":[],"innerHTML":"\n In a similar vein to its landmark Intel judgment of 6 September 2017 (Intel v Commission, C-413\/14 P), which related to rebates, the ECJ explained that exclusivity clauses \u2013 despite, by their very nature, giving rise to legitimate concerns of competition \u2013 are not automatically able to exclude competitors. Therefore, where a competition authority suspects an abuse by a company in a dominant position and where said company provides supporting evidence during the administrative procedure that disputes the capacity of the exclusivity clauses to exclude equally effective competitors from the market, the ECJ places an obligation on the competition authority to ensure that those exclusivity clauses are \u2013 given the circumstances of the case \u2013 effectively capable of excluding from the market those competitors who are as efficient as the undertaking in question.<\/p>\n","innerContent":["\n In a similar vein to its landmark Intel judgment of 6 September 2017 (Intel v Commission, C-413\/14 P), which related to rebates, the ECJ explained that exclusivity clauses \u2013 despite, by their very nature, giving rise to legitimate concerns of competition \u2013 are not automatically able to exclude competitors. Therefore, where a competition authority suspects an abuse by a company in a dominant position and where said company provides supporting evidence during the administrative procedure that disputes the capacity of the exclusivity clauses to exclude equally effective competitors from the market, the ECJ places an obligation on the competition authority to ensure that those exclusivity clauses are \u2013 given the circumstances of the case \u2013 effectively capable of excluding from the market those competitors who are as efficient as the undertaking in question.<\/p>\n"]},{"blockName":null,"attrs":[],"innerBlocks":[],"innerHTML":"\n\n","innerContent":["\n\n"]},{"blockName":"lazyblock\/chambers-quote","attrs":{"quote":" \u201cIt is not necessary to prove that the conduct actually has anti-competitive effects.\u201d<\/p>","blockId":"Z19IPXy","blockUniqueClass":"lazyblock-chambers-quote-Z19IPXy"},"innerBlocks":[],"innerHTML":"","innerContent":[]},{"blockName":null,"attrs":[],"innerBlocks":[],"innerHTML":"\n\n","innerContent":["\n\n"]},{"blockName":"core\/paragraph","attrs":[],"innerBlocks":[],"innerHTML":"\n As with the Intel case, the foregoing enables undertakings to argue that exclusivity clauses can be objectively justified when their restrictive effects on competition are outweighed by efficiencies. Consequently, the ECJ held that \u2013 where a dominant company has put forward evidence demonstrating the lack of restrictive capacity of exclusivity clauses \u2013 a competition authority must examine such evidence.<\/p>\n","innerContent":["\n As with the Intel case, the foregoing enables undertakings to argue that exclusivity clauses can be objectively justified when their restrictive effects on competition are outweighed by efficiencies. Consequently, the ECJ held that \u2013 where a dominant company has put forward evidence demonstrating the lack of restrictive capacity of exclusivity clauses \u2013 a competition authority must examine such evidence.<\/p>\n"]},{"blockName":null,"attrs":[],"innerBlocks":[],"innerHTML":"\n\n","innerContent":["\n\n"]},{"blockName":"core\/paragraph","attrs":[],"innerBlocks":[],"innerHTML":"\n Finally, as regards the standard of proof, the ECJ asserted that a competition authority is not required to use the \u201cas efficient competitor test\u201d in order to prove the capacity of a practice to produce exclusionary effects. However, should a party produce the results of such a test, the competition authority must then assess the probative value of those results.<\/p>\n","innerContent":["\n Finally, as regards the standard of proof, the ECJ asserted that a competition authority is not required to use the \u201cas efficient competitor test\u201d in order to prove the capacity of a practice to produce exclusionary effects. However, should a party produce the results of such a test, the competition authority must then assess the probative value of those results.<\/p>\n"]},{"blockName":null,"attrs":[],"innerBlocks":[],"innerHTML":"\n\n","innerContent":["\n\n"]},{"blockName":"core\/paragraph","attrs":[],"innerBlocks":[],"innerHTML":"\n By this decision, the ECJ clarifies the standard of proof that must be met when assessing exclusivity clauses under Article 102 of the TFEU and also realigns case law on rebates and exclusivity clauses. In terms of economic evidence, the recent Unilever ruling and the Intel case of 2017 respectively demonstrate that competition authorities must follow an effects-based approach for exclusivity clauses and rebates clauses alike.<\/p>\n","innerContent":["\n By this decision, the ECJ clarifies the standard of proof that must be met when assessing exclusivity clauses under Article 102 of the TFEU and also realigns case law on rebates and exclusivity clauses. In terms of economic evidence, the recent Unilever ruling and the Intel case of 2017 respectively demonstrate that competition authorities must follow an effects-based approach for exclusivity clauses and rebates clauses alike.<\/p>\n"]},{"blockName":null,"attrs":[],"innerBlocks":[],"innerHTML":"\n\n","innerContent":["\n\n"]},{"blockName":"lazyblock\/chambers-header","attrs":{"header":"Fiducial Legal by 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