Clifford Chance
The ECJ clarifies the Imputation of Liability and Treatment of Exclusivity under the EU Prohibition on Abuse of Dominance
30 January 2023
In its recent Unilever Italia judgment, the European Court of Justice ("ECJ") ruled on two important practical aspects of the application of the EU prohibition on abuse of dominance under Article 102 of the Treaty on the Functioning of the EU ("TFEU"): (i) abusive behaviour of third parties can under certain circumstances be imputed to a dominant undertaking even if these third parties do not have any corporate links to the dominant undertaking and (ii) competition authorities cannot rely on a "form-based" approach to infer negative effects on competition solely from the nature of exclusivity clauses, without evaluating economic evidence provided by the investigated undertaking.
