Leonie van der Laag

In this blog we highlight the latest developments on competition law.

The Italian Competition Authority (the "AGCM") fined Unilever over €60 million for abusing its dominant position in the market for individually packaged ice creams. The distributors of these ice creams were required by Unilever to impose exclusivity clauses on their customers. Those customers (bars, cafes, swimming pools, sports clubs, etc.) were thus restricted from purchasing any ice creams other than those of Unilever. Unilever challenged the fine before the Italian court which in turn posed two preliminary questions to the European Court of Justice ("ECJ"). The ruling of the ECJ of 19 January 2023 provides food for thought for dominant producers.

Non-notifiable mergers may constitute an abuse of a dominant position. This is the position taken by the European Court of Justice ("ECJ") in its ruling of 16 March in the much-discussed Towercast case. The crucial precedent appears to be the 1973 Continental Can judgment, which held that the prohibition of abuse of dominance in Article 102 TFEU can also apply to concentrations. An important detail is that Continental Can dates from a time when the European Merger Regulation had not yet been adopted.. Nevertheless, the ECJ ruled, in line with the opinion of Advocate General Kokott, which had already caused quite a stir, that this case-law still applies.  

The new Vertical Block Exemption Regulation (VBER) and accompanying Vertical Guidelines came into force on 1 June 2022. The new VBER applies to all agreements concluded on or after 1 June 2022 and is valid until 31 May 2034. Agreements in effect on 31 May 2022 which benefited from an exemption under the old VBER will continue to be covered by the exemption until 31 May 2023. Undertakings should thus bring existing agreements in line with the new VBER before then.