On 11th June 2015, the Italian Competition Authority (the “ICA”) opened an in-depth investigation into Unilever Italia Mkt. Operations S.r.l. which is one of the leading Italian companies (also referred as “Unilever” or the “Accused Company”) manufacturing industrial ice cream for alleged infringements of Article 102 TFEU, the prohibition against the abuse of dominance.
The investigation started in 2013 after a complaint filed with the ICA by a small Italian industrial ice cream manufacturer, which reported that Unilever would implement exclusionary conducts aimed at making extremely difficult for Unilever’s competitors to enter the relevant market.
The ICA found that the Accused Company entered into supply and distribution agreements with retailers and retailers’ associations containing several contractual clauses developed for raising customers’ loyalty.
In particular, the ICA focused its attention on the exclusivity clauses -- which obliged, under the threaten of termination, the retailers to sell only the products provided by Unilever and imposed not to use the Unilever’s refrigerators to store other products -- and the discounts and bonuses payments granted by Unilever in case of the achievement of a certain amount of purchases.
First of all the ICA alleged that -- as far as the Italian market was concerned -- Unilever held a dominant position within the industrial ice cream sector and -- in light of that -- the ICA found that exclusivity clauses along with the mentioned discounts and bonus schemes were able to either hinder competitors from distributing their own products or raise prices in the relevant market.
Furthermore, the ICA stressed that the Accused Company implemented a very effective monitoring system in order to detect any possible breach of the alleged anti-competitive clauses.
Therefore, the ICA held that Unilever abused its dominant position in the relevant market by rendering it de facto impossible or unprofitable for retailers to subscribe supply and distribution agreements with Unilever’s competitors, violating Article 102 of the TFEU.