Swedish Court Establishes Novel Form of Abuse and Objective Justification - Tobacco Marketing Regulation Excused Restriction of Competitors' Opportunities of Marketing in Coolers Lent to Dealers

摘要

Key Points 1. Swedish Match lent coolers to its dealers. Although permitting sales of competitors' products in those coolers, Swedish Match introduced a system of labels which restricted the competitors in how they could communicate, e.g. price and brand. 2. The Appeal Court finds that exclusionary behaviour by a dominant player by way of restricting competitors' possibilities of marketing is objectively justifiable when it ensures compliance with marketing regulations. 3. When an objective justification is based on an 'objective necessity', exclusionary intent is irrelevant. 4. In the view of the authors, in cases where a dominant undertaking can and does restrict competitors from a certain conduct, and such conduct is to some extent also restricted by law, the adequate counterfactual when assessing whether the dominant player has restricted competition is what competitors could lawfully have done absent the restrictive measures by the dominant player.