When an ice cream case provides antitrust experts with food for thought: Unilever Italia

The preliminary ruling in Unilever Italia Mkt. Operations offers several valuable lessons. Firstly, it serves as a reminder that, despite the current focus on digital markets and tech giants, competition threats may still occur even in the most traditional markets, such as the market for industrial single-wrapped impulse ice creams. Secondly, it deals with two seminal issues: the imputability theories that the European Commission and national competition authorities can use in antitrust cases involving dealer networks, and the possibility for dominant firms to apply the as-efficient-competitor test (hereinafter, also the “AEC test”) in their defence, in order to exclude their liability. In doing so, however, the Court of Justice of the European Union leaves certain questions unresolved, thereby offering abundant material for contemplation and future scholarly exploration, especially in light of the new Guidance of the European Commission on its enforcement priorities in applying Article 102 TFEU to exclusionary practices.