194 / 516
It is not necessary that the undertaking in a dominant position also
be active in the secondary market in order for this condition to be ful-
filled. For instance, the undertaking in a dominant position may facili-
tate its entry into the secondary market by refusing to sell.
Absence of an Objective Justification.
A case-by-case analysis is
required for this condition. For instance, a refusal to sell harmful prod-
ucts that necessitate proper precautions and technical expertise when
being handled may be considered an objective justification.
Board Analysis and Findings
The Board first determined the relevant market, then considered
whether Unilever is in a dominant position in this market and finally
analyzed if refusal to sell could be considered in that case as an abuse
of dominant position.
Relevant Market
Relevant Product Market.
A relevant product market means a mar-
ket that includes all those products and/or services which are regarded
as interchangeable or substitutable by the consumer by reason of the
products’ characteristics, their prices and their intended use. Hence, in
determining the relevant product market, the interchangeability or
substitutability of the products by the consumer is taken into account.
The Board stated that there are two different ice cream markets:
the industrial ice cream market and the “scooping” ice-cream market.
The most important difference between the two markets is that indus-
trial ice cream is sold everywhere and scooping ice cream is only sold
around the place where it is produced.
Considering that ice cream branded Algida is industrial ice cream,
the Board determined the relevant product market to be the industrial
ice cream market.
Relevant Geographic Market.
A relevant geographic market
means a market which comprises the area in which the firms concerned
are involved in the supply of products or services, the conditions of
competition are sufficiently homogeneous and can be disassociated
from neighboring markets because competition conditions are perceiv-
ably different.
180
NEWSLETTER 2012