The Court of Justice of the European Union held that a producer in a dominant position is liable for the abusive conduct of distributors belonging to its distribution network if that conduct forms part of a policy adopted unilaterally by the producer.
In the same judgment, the Court of Justice of the European Union also ruled on the interpretation of exclusivity clauses contained in distribution agreements and set out the criteria which the authority should take into account in order to find that such clauses restrict competition.
In Case C-680/20, the Court of Justice of the European Union (“CJEU”) held that, under Article 102 TFEU, the conduct of distributors forming part of the distribution network of a producer in a dominant position may be imputed to the producer if it is not adopted independently by those distributors, but forms part of a policy that is decided unilaterally by that producer and implemented through those distributors.
In addition, where exclusivity clauses are included in distribution contracts, the market surveillance authority, in order to find an abuse of a dominant position, must establish that those clauses are capable of restricting competition. The authority must reach this conclusion by assessing the relevant circumstances and taking into account the economic analyses produced by the undertaking in a dominant position. In its analysis, the authority has the option of applying an ‘as efficient competitor’ test to determine whether the clauses are capable of excluding competitors that are as efficient as the dominant undertaking. However, if the results of such a test are submitted by the undertaking concerned during the administrative procedure, the authority is required to assess the probative value of those results.
