PAGE 1 STUDY ON THE LEGAL FRAMEWORK COVERING BUSINESS-TO-BUSINESS UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN FINAL REPORT 26 February 2014 Prepared for the European Commission, DG Internal Market DG MARKT/2012/049/E Core research Team Dr. Andrea Renda, CEPS, Brussels (Project Coordinator) Prof. Fabrizio Cafaggi, European University Institute, Florence (Head of comparative law team) Prof. Jacques Pelkmans, CEPS, Brussels (Head of Internal Market team) Prof. Paola Iamiceli, European University Institute, Florence Ms Anabela Correia de Brito, CEPS, Brussels Ms Federica Mustilli, CEPS, Brussels Ms Luana Bebber, European University Institute, Florence With special contribution from Prof. Sandrine Clavel, Université de Versailles, France Prof. Dr. Juan Ignacio Ruiz Peris, University of Valencia, Spain Prof. Dr. Carmen Estevan, University of Valencia, Spain Project management Ms Cristina Macovei, CoE Ms Alissa Albrechts, CoE
Transcript
PAGE 1
STUDY ON THE LEGAL FRAMEWORK COVERING
BUSINESS-TO-BUSINESS UNFAIR TRADING
PRACTICES IN THE RETAIL SUPPLY CHAIN
FINAL REPORT
26 February 2014
Prepared for the European Commission, DG Internal Market
DG MARKT/2012/049/E
Core research Team
Dr. Andrea Renda, CEPS, Brussels (Project Coordinator)
Prof. Fabrizio Cafaggi, European University Institute, Florence (Head of comparative law team)
Prof. Jacques Pelkmans, CEPS, Brussels (Head of Internal Market team)
Prof. Paola Iamiceli, European University Institute, Florence
Ms Anabela Correia de Brito, CEPS, Brussels
Ms Federica Mustilli, CEPS, Brussels
Ms Luana Bebber, European University Institute, Florence
With special contribution from
Prof. Sandrine Clavel, Université de Versailles, France
Prof. Dr. Juan Ignacio Ruiz Peris, University of Valencia, Spain
Prof. Dr. Carmen Estevan, University of Valencia, Spain
Project management
Ms Cristina Macovei, CoE
Ms Alissa Albrechts, CoE
PAGE 2
The information and views set out in this study are those of the authors and do not
necessarily reflect the official opinion of the Commission. The Commission does not
guarantee the accuracy of the data included in this study. Neither the Commission nor
any person acting on the Commission’s behalf may be held responsible for the use
which may be made of the information contained therein.
Figure 3 – Types of legislation and private regulation that cover selected UTPs in
the EU28 .................................................................................................... 105
Figure 4 – Coverage of selected UTPs by national legislation, retail ....................... 111
Figure 5 – Coverage of selected UTPs by national legislation, food ........................ 112
PAGE 7
STUDY ON THE LEGAL FRAMEWORK COVERING
BUSINESS-TO-BUSINESS UNFAIR TRADING
PRACTICES IN THE RETAIL SUPPLY CHAIN
EXECUTIVE SUMMARY
etail services are a key intermediary service in the modern economy acting as
the conduit between thousands of product suppliers and consumers: according to
Eurostat (2013), retail services account for 4.3% of the EU’s GDP, 8.3% of
European employees and 17% of SMEs. Over the past decade, the European retail
sector has undergone significant changes: globalization of distributive trade has led to
increased competition from multi-national conglomerates and, to some degree, entry of
large players or acquisition of existing firms by larger players in many European
countries over the past three decades. This evolution led to the emergence of complex
contractual relationships between various types of suppliers and increasingly large
retailers. Where suppliers can count on a global footprint, a well-known brand and
sufficient consumer loyalty, they are likely to hold more bargaining power than their
distributors, whose revenues depend on their ability to display these products (so-called
“must have” products); at the other extreme, local small producers that wish to market
perishable goods (e.g. fresh fruit) might end up having weak bargaining power vis-à-vis
large retailers, even in cases that would not be considered by competition law as
problematic for the degree of competition of the relevant market as a whole. The main
result, under these conditions, is that contracts between these players might end up
being imbalanced to the detriment of the weaker party: the stronger party will seek to
impose unfair price and contract terms, and more generally to transfer commercial risk
onto its counter-party.
As will be explained in more detail in the following sections, the emergence of “unfair
trading practices” (UTPs) in the retail supply chain is a peculiar phenomenon in several
respects. First, it cannot be fully tackled through (EU) antitrust law. EU competition law
can tackle those practices mostly within the scope of Article 102 TFEU, and in
particular within the concept of exploitative abuses. However, Article 102 TFEU is
insufficient to tackle these practices insofar as it relies on a precondition – that one of
the parties involved in the commercial relationship holds a dominant position in the
relevant product and geographic market – that is almost never met in practice in the
EU28. As a matter of fact, only a very limited number of retailers or suppliers in the
retail chain can be said to hold a dominant position at the national level: and even in that
case, dominance per se is not prohibited by EU competition law. To the contrary, UTPs
emerge as a result of imbalances in contractual power, which go beyond the concept of
dominance in antitrust. This is the case, i.a. when weak parties have no real alternative
to the commercial relation at hand; when one of the parties depends on its counterparts
due to other factors, such as technology and know-how; when one of the parties can
exploit informational advantages to the detriment of the other party; and in case of
incomplete contracts, which leave room for strategic behaviour during the course of the
negotiation.
R
PAGE 8
Moreover, UTPs are a peculiar case since they pose a policy problem, even if there is no
consistent and substantial evidence of litigation, and even in countries with dedicated
legal rules. As a matter of fact, some countries are currently changing their legal rules to
more effectively address the problem of UTPs and the so-called “fear factor”, which
reportedly inhibits weaker parties from filing suit against their stronger partners. The
fear factor appears more likely when products are perishable, i.e. the relevant
geographic market for the producer is within a rather limited range from the location in
which they are produced; when the weaker party has no real alternative to the
commercial relationship with the stronger party imposing UTPs; and when lawsuits are
costly and risky.
The European Commission’s Green Paper and selected initiatives in
the food sector
On January 31, 2013 the European Commission adopted a European Retail Action Plan
and a Green Paper on unfair trading practices in the business-to-business food and non-
food supply chain. The underlying idea is that a number of barriers hinder the smooth
functioning of cross-border sourcing, consumer access to cross-border retail services
and market entry for retailers. The Action Plan thus sets out a strategy to improve the
competitiveness of the retail sector and to enhance the sector’s economic, environmental
and social performance.
The actions in the European Retail Action Plan relate to five key priorities: (i)
Empowering consumers through better information; (ii) Improving accessibility to retail
services by promoting an exchange of good practices between Member States on
commercial and spatial planning; (iii) Fairer and more sustainable trading relationships
along the food and non-food supply chain; (iv) Ensuring a better link between retail and
innovation; and (v) Creating a better work environment, for example through better
matching the needs of employers and staff skills.
For what concerns possible unfair B2B trading practices, and consistently with our
analysis above, the Green Paper clarifies that UTPs can occur at the pre-contractual
phase, during the contractual phase and also at the post-contractual phase (as in the case
of (e.g., retro-active contractual changes). The Green Paper provides the following
categories of clauses:
Ambiguous Contract Terms that make it possible to impose additional obligations
on weaker contracting parties.
Lack of Written Contracts. UTPs are more easily imposed where contracts are not
set out in written form.
Retroactive Contract Changes. Retroactive changes, such as deductions from the
invoiced amount to cover promotion fees, unilateral discounts based on quantities
sold, listing fees, etc.
Unfair Transfer of Commercial Risk, e.g. shrinkage fees, obligations to
compensate for losses incurred by the trading partner, long payment delays,
‘Reverse margin’ practices, etc.
PAGE 9
Unfair Use of Information, including cases in which one of the parties requests
information to the other, and then uses them to develop a competing product; or
failure to respect confidentiality.
Unfair Termination of a Commercial Relationship, and in particular sudden and
unjustified termination without a reasonable period of notice.
Territorial Supply Constraints imposed by some multi-national suppliers that
impede retailers from sourcing identical goods cross-border in a central location and
distributing them to other Member States.
In the food sector, European Principles of good practice for vertical relations were
adopted in 2011, drafted by the core members of the Expert Platform on B2B
contractual practices in the food supply chain of the High Level Forum for a Better
Functioning Food Supply Chain. This has been seen as a good basis for the
development of a voluntary code of conduct for fair business practices between
enterprises in the food sector.
At the same time, following a request made on 10 March by the European Commission
in the B2B Platform of the High Level Forum for a Better Functioning Food Supply
Chain, a multi-stakeholder dialogue was created to discuss fair/unfair practices along
the food supply chain. The outcome of the multi-stakeholder dialogue was a set of
voluntary principles of good practice and a list of examples of unfair and fair practices
in vertical trading relationships. This voluntary initiative prescribes that contracting
parties act in strict compliance with applicable laws, including competition law. In
addition, general principles hint at the protection of consumer interests, freedom of
contract and fair dealing; whereas more specific principles specify the importance of
written contracts, predictability of rules and behaviours, respect for confidentiality, etc.
Our survey of national experts: key findings
In order to complete this Report, we have relied on a network of 28 legal experts – one
for each Member State – that have helped us fill a very detailed questionnaire (see
Annex I) on the legal treatment of UTPs in retail and its sub-sectors (in particular, the
food sector). The wealth of information produced by this survey has improved existing
knowledge of the emerging national legislation on UTPs and pierced the veil that
covered a worryingly fragmented landscape, which could have significant consequences
for the Internal Market, especially for what concerns the possibility for suppliers to
cross borders and operate in non-domestic markets, but also for larger retailers wishing
to establish themselves in various Member States.
Key trends that we have observed are the following:
The expansion of national competition law beyond the scope of EU antitrust
rules. Several countries have adopted – within their competition laws – rules on
abuse of economic dependence, which aim at capturing the imbalance of bargaining
power between the parties to a commercial relationship, without requiring that one
of the parties holds a dominant position in the relevant markets. In doing this,
countries like Austria, Cyprus, Germany, Hungary, Portugal and Romania go
beyond the scope of EU antitrust law in their national competition laws. Other
countries adopted these rules outside their competition laws, e.g. in unfair
PAGE 10
competition laws, in specific B2B legislation or in sectoral legislation for retail trade
or specific subsectors (most often, agri-food).
The expanding role of competition authorities or, other, ad hoc enforcement
bodies. While UTPs have traditionally been dealt with by contract law and enforced
by civil courts, several countries have realized that more effective and powerful
authorities should be entrusted with enforcement, in order to ensure that ex officio
investigation and the collection of confidential complaints can be possible.
Accordingly, competition authorities are today involved in the enforcement of rules
addressing UTPs in four different ways: (i) in enforcing competition rules within the
EU scope (when market conditions trigger antitrust scrutiny); (ii) in launching
market investigations on the retail sector or more specific sectors (e.g. food); (iii) in
enforcing provisions on UTPs, on abuse of economic dependence or, more broadly,
on unfair competition included in the national competition law; and/or (iv) in
enforcing legislation other than competition law, when the legislator empowers
them to do so. Countries like Austria, Germany, Hungary, Italy, Latvia and
Lithuania have reserved a key role for competition authorities in addressing the
problem of UTPs.
Combining hard and soft law. One emerging trend in the regulation of UTPs is the
complementarity of public and private regulation, with an increasing number of
countries, after scrutiny of the sector by either the competition authority or a
ministry, committing to the endorsement of self-regulatory schemes, or the creation
of alternative enforcement mechanisms, which can facilitate the resolution of
disputes and avoid, to some extent, the problem of the fear factor. One good
example of this development is France. There, in addition to two different channels
of public enforcement through hard law, retailers and suppliers may engage the
Commission d'Examen des Pratiques Commerciales (CEPC), a specialized body
overseen by the Ministry of Finance. The CEPC is not a court or tribunal; rather, it
is a body that produces decisions and opinions that are not legally binding. It was set
up at the beginning of the past decade to provide a forum where retailers and
suppliers could speak to each other without fear of retaliation and without any
formal consequences.
Public enforcement of private regulation. Many Member States feature a mix of
public and private regulation, with the latter mostly emerged due to the need to
ensure better coordination of the value chain and the introduction of more fine-
tuned, speedier instrument to solve controversies. Public and private regulation have
over time faced different problems, which – as already observed – make them more
complementary than alternative. In the case of public regulation, the insufficiency of
competition law, lengthy proceedings and legal uncertainty, coupled with problems
of access to justice and the “fear” factor described above have caused major
concerns over the past decades. To the contrary, the lack of institutional strength and
legitimacy, coupled with limited enforcement and sometimes lack of transparency
have led legislators to consider private regulation with a degree of distrust, at least
in certain fields. As a consequence, in some countries a new approach is emerging,
which entails public enforcement and supervision of private regulation. A key
example in this respect is the United Kingdom, but also France and Spain can be
said to be following this trend. In the UK, the Grocery Code Adjudicator Act 2013
(the “Act”) came into force on 25 June 2013, formally establishing the role of the
PAGE 11
Grocery Code Adjudicator (the “Adjudicator”). The Adjudicator oversees the
implementation and enforcement of the Grocery Supply Code of Practice
(“GSCOP”) which came into force in February 2010 and imposes legally binding
obligations on the UK’s ten largest supermarket retailers – principally those with an
annual £1 billion turnover (the "Designated Retailers"). In France, the CEPC
recently issued a recommendation to establish a code of good practice in the retail
sector, including key principles such as fair access to information, respect of
intellectual property (IP) rights and innovation, and rules regarding form of
contracts. In Spain, the recent Law n. 12 of 2 August 2013 calls for the creation of
an observatory on the food sector, which in turn will be tasked with the elaboration
of a Code of Practice.
In our attempt to evaluate at Member States’ ability to successfully tackle the issue of
UTPs in the retail chain, we have identified with the European Commission eleven
UTPs covered by our survey (out of a total of thirty practices contained in our
questionnaire), which can be considered as representative of the “core” of the problem.
These eleven selected UTPs are reported in the table below.
Selected UTPs addressed by our analysis, and types of UTPs in the Green Paper
Category in the Green Paper on UTPs Selected practices for our in-depth analysis
Ambiguous contract terms Lack of clarity in contract offer
Lack of written contract Lack of written contract
Retroactive contract changes Abuse of economic dependence*
Unfair transfer of commercial risk Liability disclaimers
Unilateral modification clauses
Terms unreasonably imposing or shifting risks
Unfair use of information Unfair use of confidential information
Unfair use of confidential information after contract expiry
Unfair termination of a commercial
relationship Unfair breaking off of negotiation
Unfair contract termination
Refusal to negotiate
* Abuse of economic dependence can be invoked to tackle also other UTPs included in the Green Paper, such as i.a. retroactive
contract changes, unilateral modification clauses, terms unreasonably imposing or shifting risks, and the unfair use of confidential information during the contractual relationship.
Below, we summarize our findings by drawing some conclusions on the degree of
coverage and the extent of enforcement of selected UTPs by national legislation, as well
as coverage by private regulatory schemes, whether alternative or complementary to
public legislation. In performing our analysis, we have agreed with the European
Commission on a key assumption: that countries adopting rules on abuse of economic
dependence or abuse of superior bargaining power potentially can, through these rules,
capture several UTPs, such as retroactive contract changes, unilateral modification
clauses, terms unreasonably imposing or shifting risks, and the unfair use of confidential
information during the contractual relationship.
We distinguish between the retail sector and the food sector, in which – as observed
above – coverage and enforcement practices seem to have been slightly more significant
over the past few years.
The retail sector: a fragmented legal landscape
The Figure below shows the coverage of UTPs in the EU28, highlighting that:
PAGE 12
In as many as ten countries there is no coverage of selected UTPs through
public legislation in the retail chain. These are Denmark, Ireland, Luxembourg,
Malta, the Netherlands, Sweden, Belgium, Estonia, the Czech Republic' and the UK.
In another five countries coverage is quite limited. These are Slovenia, Slovakia,
Poland, Finland and Bulgaria display very limited coverage.
Some countries feature a very comprehensive coverage of the selected UTPs.
These are Croatia, Italy, France and Portugal.
Coverage of selected UTPs by national legislation, retail
We are then able to segment the 28 Member States more accurately by looking at the
table below, which shows the share of the eleven selected UTPs that can be enforced by
an administrative body in the retail sector for each of the countries that provide for this
possibility. The Table shows that:
In only 12 Member States powers to enforce the rules addressing selected UTPs
in the retail sector are attributed to an administrative body other than the
ordinary courts. In eight countries such body is the competition authority, in four
countries another administrative authority.
In only nine countries of the EU28 there is an administrative authority that is able
to launch ex officio investigations in order to address selected UTPs.
' The new Civil Code of the Czech Republic, entered into force on January 1, 2014, provides rules on
abuse of economic dependence that can tackle five out of the eleven UTPs.
PAGE 13
In only eight countries among the EU28 there is an administrative authority that is
able receive confidential complaints in order to address selected UTPs.
In as few as seven Member States (25% of the total), there is an administrative
authority that is both able to launch ex officio investigations, and allowed to receive
confidential complaints in order to address selected UTPs.
If one considers coverage of our selected UTPs, there are only four countries in
the EU28 that can cover at least half of the core practices selected in the retail
sector (i.e. with “high” or “very high” coverage), and with strong enforcement
powers. These are Croatia, France, Hungary and Lithuania.
Administrative bodies, ex officio investigation and confidential complaints in retail
Country Enforcing Authority
RETAIL
% of coverage of core
UTPs in RETAIL
Ex officio investigations Confidential
complaints
Austria NCA High No No
Bulgaria NCA Limited Yes No
Croatia State Inspectorate Very high Yes Yes
Cyprus NCA Medium No Yes
France DGCCRF High Yes Yes
Germany NCA Medium Yes Yes
Hungary NCA High Yes Yes
Latvia NCA Medium Yes Yes
Lithuania NCA High Yes Yes
Portugal ASAE High Yes No
Romania NCA High No No
Slovenia Market inspector Medium Yes Yes
Total 12 9 8
Finally, introducing private regulation does not change the results of our analysis
very significantly. As a matter of fact, private regulation is common across the EU28,
but rarely targets explicitly the selected UTPs, and almost always complements public
legislation rather than being a stand-alone remedy for UTPs. Only two countries see a
wider coverage of UTPs as a result of private regulation only:
in Estonia private regulation addresses four UTPs that legislation does not address
in the retail sector: the lack of written contract, terms unreasonably imposing or
shifting risks, unfair use of confidential information and the refusal to negotiate;
in Croatia private regulation addresses the lack of written contracts.
Focus: the food sector
In the food sector the situation is slightly different due to the existence of sectoral
legislation that does not apply to the wider retail sector. Our results indicate that:
In eight Member States there is no coverage of selected UTPs through public
legislation. These are Denmark, Ireland, Luxembourg, Malta, the Netherlands,
Sweden, Belgium, and Estonia.
In another four countries coverage is quite limited. These are Poland, Finland,
Bulgaria and Slovenia.
PAGE 14
Some countries feature a very comprehensive coverage of the selected UTPs.
These are Italy, which covers all eleven selected UTPs, Croatia, France, the United
Kingdom, Portugal, Spain and the Czech Republic (where legislation, until the end
of 2013, has been specific to food).
Coverage of selected UTPs by national legislation, food
We are then able to analyse the 28 Member States more accurately by looking at the
table below, which shows the share of the eleven selected UTPs that can be enforced by
an administrative body in the food sector for each country. The Table shows that:
In 17 Member States powers to enforce the rules addressing UTPs in the food
sector are attributed to an administrative body other than the ordinary courts. This means that there are five countries that have provided for this mode of
enforcement in food, but not in other retail sectors. In eight countries such body is
the competition authority, in nine countries another administrative authority.
In 15 countries of the EU28 there is an administrative authority that is able to
launch ex officio investigations in order to address selected UTPs.
In 11 countries among the EU28 there is an administrative authority that is able to
receive confidential complaints in order to address selected UTPs.
In 10 Member States, there is an administrative authority that is both able to launch
ex officio investigations, and allowed to receive confidential complaints in order to
address selected UTPs.
PAGE 15
If one considers coverage of our selected UTPs, there are seven countries in the
EU28 that can cover at least half of the core practices selected in the food sector
(i.e. with “high” or “very high” coverage), and with strong enforcement powers
(i.e. where both ex officio investigations and confidential complaints are possible).
These are Croatia, France, the UK, the Czech republic, Spain, Hungary and
Lithuania.
Administrative bodies, ex officio investigation and confidential complaints in food
Country Enforcing Authority FOOD % of coverage of core
UTPs in FOOD
Ex officio
investigations
Confidential
complaints
Croatia State Inspectorate Very high Yes Yes
Italy NCA Very high Yes No
Austria NCA High No No
Czech Republic NCA High Yes Yes
France DGCCRF High Yes Yes
Hungary “NÉbiH” High Yes Yes
Lithuania NCA High Yes Yes
Portugal ASAE High Yes No
Romania National Authority for Consumer Protection High Yes No
Spain Administration General del Estado High Yes Yes
United Kingdom Grocery adjudicator High Yes Yes
Cyprus NCA Medium No Yes
Germany NCA Medium Yes Yes
Latvia NCA Medium Yes Yes
Slovakia The Ministry of Agriculture Medium Yes No
Slovenia Market inspector Medium Yes Yes
Bulgaria NCA Limited Yes No
Total 17 15 11
Finally, introducing private regulation changes the results of our analysis. As a
matter of fact, private regulation in the food sector is even more widespread across the
EU28 than in the general retail sector, but rarely targets explicitly our selected UTPs
and almost always complements public legislation rather than being a stand-alone
remedy for UTPs. If one consider the existence of private regulatory schemes (when
they do not overlap with public legislation), there are four countries that increase their
coverage of selected UTPs: Estonia and Belgium cover four UTPs, Slovenia covers
three UTPs and Croatia one selected UTP through private regulation.
Overview of results
The figure below shows our survey of legislation and private regulation, by
distinguishing rules that have a general application (or apply to the whole retail sector),
and specific rules and private regulatory schemes that apply only in the food sector).
The figure shows the extreme fragmentation existing in the EU28 in the coverage of
selected UTPs: six countries have no specific rule, one country has only private
regulation, one only addresses the food sector with private regulation, two countries
have regulated only in the food sector (although in the Czech Republic things have
changed as of 1 January 2014), and only a handful of countries can be said to cover a
good share of the selected UTPs identified in the Green Paper.
PAGE 16
Coverage of selected UTPs by national legislation and private regulation, retail and food, EU28
Similarly, our findings suggest that enforcement practices are very diverse across
Member States:
In eleven Member States there is no administrative authority empowered to enforce
rules against UTPs;
In five Member States an administrative authority enforces rules on UTPs only in
the food sector;
In only three countries there is an administrative enforcement body that can cover at
least half of the selected UTPs, launch ex officio investigations and accept
confidential complaints in the retail sector;
Seven Member States cover at least half of the selected UTPs and have attributed
enforcement powers to an administrative body that can launch ex officio
investigations and access confidential complaints in the food sector.
PAGE 17
Bodies, UTPs covered, ex officio investigations and confidential complaints in retail and food
Policy recommendations
Based on our main findings, we formulate a number of policy recommendations, which
are meant to contribute to the ongoing work of the European Commission on the issue
of UTPs in the retail chain.
Recommendation #1: clearly define the policy problem by explaining that UTPs
are affected by a mix of market failures (in particular, transaction costs, asymmetric
incomplete information, strategic behaviour and accumulation of bargaining power)
and regulatory failures connected to (i) the extreme fragmentation of legislation in
Member States, (ii) the insufficiency of EU competition law in tackling the issue;
(iii) the insufficiency of many solutions elaborated at national level to address all the
identified UTPs; and (iv) an enforcement gap which becomes even worse in UTPs
in cross-border supply chains for lack of coordination among national enforcers.
Recommendation #2: EU competition law is insufficient. EU Competition law is
insufficient to tackle the problem of UTPs in the retail chain. EU competition law
can tackle these practices mostly within the scope of Article 102 TFEU, and in
particular within the concept of exploitative abuses. However, as pointed out by
many national competition authorities Article 102 TFEU is insufficient to tackle
these practices insofar as it relies on a precondition – that one of the parties involved
in the commercial relationship holds a dominant position in the relevant product and
geographic market – that is almost never met in practice in the EU28. As a matter of
fact, only a very limited number of retailers or suppliers in the retail chain can be
said to hold a dominant position at the national level: and even in that case,
dominance per se is not prohibited by EU competition law.
Recommendation #3: address the fragmentation of legal rules and approaches
in the EU28. In terms of legal instrument, the landscape is very fragmented: some
Member States use antitrust law anyway to tackle UTPs, by stretching it beyond the
scope of EU competition law; some Member States also use so-called “unfair
competition” laws; a number of Member States use contract law, tort law, specific
B2B laws, etc. to capture some or all the UTPs defined in the Green Paper; and in
yet other cases, national legislation takes a more “functional” approach, i.e. it targets
specific practices without specifying whether the legal rules belong to the domain of
contract, torts or competition. Such a wide variety of legal instruments results in
different enforcement practices with various combination of private and public
enforcement and little coordination within and between national enforcers.
PAGE 18
Recommendation #4: address the “fear factor”. The “fear” factor is a major
factor that leads to a limited litigation on UTPs: other factors, to be taken in to
account, include problems in access to justice created by legal rules that are
insufficiently claimant-friendly, the absence of effective collective litigation in
many Member States, and the incentive for stronger parties to settle disputes before
trial. Based on these preconditions, the fear factor appears more likely when: (i)
Products are perishable, i.e. the relevant geographic market for the producer is
within a rather limited range from the location in which they are produced; (ii)
Alternatives on the side of the “weak party” are abundant, i.e. there are many
potential alternative suppliers or retailers that could replace the existing one in the
short term, and as a result the supplier in question is particularly weak; (iii) Lawsuits
are costly and risky. Our results confirm that the fear factor can be a very important
problem with respect to UTPs, especially in the food sector. Most countries,
however, seem to be hardly effective in tackling this problem, and this requires
action in terms of devising an enforcement mechanism that can put weaker parties in
the condition to trust the fact that their anonymity will be preserved throughout the
proceeding, whenever possible.
Recommendation #5: Enforcement is key. Relying on ordinary courts to enforce
rules that address selected UTPs is likely to prove ineffective, as testified by the
very low level of litigation observed in most Member States. The only countries that
have managed to reach significant levels of litigation and, supposedly, found an
effective way to solve the “fear factor” are those that have in place a powerful, agile
administrative body empowered to launch ex officio investigations, actively protect
the confidentiality of complainants, and credibly exercise their power to impose
sanctions and mediate between the involved parties.
Recommendation #6: Provide more detailed information as regards the unfair
nature of certain trading practices. One of the key roles that the European
Commission could play in the future would be to provide more legal certainty as
regards the types of practices, within the categories identified in the Green Paper,
which can create the most significant concerns in terms of fairness, regardless of the
context in which the practices take place. This would mean creating a narrow, non-
binding black list of practices, which in any event the Commission recommends not
to include in standard contracts or in negotiations taking place in the retail chain
with a corresponding list of best recommended practices; and a non-binding grey list
of practices that are often (but not always) unfair, explaining to the extent possible
what factors would determine the unfair nature of these practices.
Recommendation #7: Refrain from a “one-size-fits-all” approach. Empirical
evidence suggests that diffusion of UTPs varies sensibly across sectors and even
within sectors depending on the structure and length of the supply chains. Different
strategies might be required depending on the sector, the degree of market
concentration and internationalization of supply chains.
Recommendation #8: adopt a “principles-based” approach. The possibility of a
legislative intervention either in the form of a recommendation or that of a directive
will have to address at least two types of variables: differences of UTPs across
sectors, and differences of approaches by national legal systems and in particular
enforcement mechanisms. These differences suggest the adoption of a principles-
based approach that can provide common definition at EU level to be articulated
PAGE 19
sector by sector with different combinations between legislation and private
regulatory regimes.
Recommendation #9: adopt a “functional” approach that regulates unfair trading
practices rather than fields (contract, unfair competition, torts) leaving to Member
States the task of indicating which combination of instruments should be used. The
functional approach should be based on the description of general principles
distilled from the common principles of Member States plus a list of practices with
the comparative indication of what is unfair and what is fair based on the model
adopted by codes of good practice.
Recommendation #10: a “co-regulatory” approach, coupled with coordinated
administrative and judicial enforcement. Our analysis has revealed that the role
of private regulation is and should increasingly be significant: however, following
the current trend in a number of countries as well as the evolving literature on
private regulation, co-regulation instead of pure self-regulation seems to be most
appropriate especially in the food sector. Preferably co-regulation should operate at
EU level for trans-European supply chains and also for global chains that operate in
Europe. This is especially important when EU suppliers deal with non-EU retailers
but it is also important when EU retailers deal with non-EU suppliers. We
recommend that enforcement of privately produced rules is ensured through
coordinated administrative and judicial enforcement. Administrative authorities
should police the compliance with codes and sanction violations. Similarly national
judges should police breach of codes and sanction them.
PAGE 20
STUDY ON THE LEGAL FRAMEWORK COVERING
BUSINESS-TO-BUSINESS UNFAIR TRADING
PRACTICES IN THE RETAIL SUPPLY CHAIN
INTRODUCTION
etail services are a key intermediary service in the modern economy acting as
the conduit between thousands of product suppliers and consumers. This
applies to a number of different products, from agri-food products to
appliances, consumer electronics, a good part of the textile, clothing and cosmetics
market, and many others. According to Eurostat (2013), retail services account for
4.3% of the EU’s GDP, 8.3% of European employees and 17% of SMEs1. As shown
by the ECB (2011)2, the growing role of the retail industry is also important to
understand the cross-country differentials in productivity growth: data shows that this
sector accounted for one-third of the widening of the productivity gap between the EU
and US in the last thirty years3. Over the past decade, the European retail sector has
undergone significant changes, mostly due i.a. to increased globalization of
production, distribution and consumption, the development of e-commerce, the
enlargement of the EU to 28 member countries, and also to the enduring economic
downturn, which leads consumers to shop for cheaper products and consequently lead
retailers to compete aggressively on price. Globalization of distributive trade has led to
increased competition from multi-national conglomerates and, to some degree, entry
of large players or acquisition of existing firms by larger players in many European
countries over the past three decades. Today, retailers like Metro Group and Carrefour
already operate in 30-40 countries, and Casino, Auchan, Metro Group or Schwarz
Group post around 60% of their annual revenues outside their home country; and giant
trader Walmart reports that the net sales growth of its international division exceeds
that of its home market in the US. One of the effects of this trend has been that large
retailers have started to develop own practices and rather standardized contractual
forms (or to revert to private standards) to control the supply chain especially in
countries where the rule of law places responsibility on the vendor for products
liability or any other form of damages accrued to consumers for defects in the products
sold.
The evolution of the retail supply chain in Europe has led to the emergence of complex
contractual relationships between various types of suppliers and increasingly large
retailers. Where suppliers can count on a global footprint, a well-known brand and
sufficient consumer loyalty, they are likely to hold more bargaining power than their
distributors, whose revenues depend on their ability to display these products (so-
1 COM(2013) 37 Final of 31 January 2013, Green Paper on Unfair Trading Practices in the Business-
To-Business Food and non- Food Supply Chain in Europe.
2 European Central Bank (2011) Structural features of distributive trades and their impact on prices in
the Euro area. Structural issues report, September 2011.
3 Id.
R
PAGE 21
called “must have” products); at the other extreme, local small producers that wish to
market perishable goods (e.g. fresh fruit) might end up having weak bargaining power
vis-à-vis large retailers, even in cases that would not be considered by competition law
as problematic for the degree of competition of the relevant market as a whole. The
main result, under these conditions, is that contracts between these players might end
up being imbalanced to the detriment of the weaker party: the stronger party will seek
to impose unfair price and contract terms, and more generally to transfer commercial
risk onto its counter-party. As mentioned in the European Commission Green Paper on
unfair trading practices in the business-to-business food and non-food supply chain in
Europe (hereinafter, the “Green Paper”), UTPs “are practices that grossly deviate from
good commercial conduct and are contrary to good faith and fair dealing. UTPs are
typically imposed in a situation of imbalance by a stronger party on a weaker one and
can exist from any side of the B2B relationship and at any stage in the supply chain.”4
As will be explained in more detail in the following sections, the emergence of unfair
trading practices (UTPs) in the retail supply chain is a peculiar phenomenon in several
respects. First, it cannot be fully tackled through antitrust law, since it refers most
often to a situation of “relative dominant position”, i.e. an imbalance of contractual
power that depends on the specific situation of the contracting parties, rather than on
the condition of the relevant product or geographic market. UTPs emerge as a result of
imbalances in contractual power, which go beyond the concept of dominance in
antitrust. This is the case, i.a. when weak parties have no real alternative to the
commercial relation at hand; when one of the parties depends on its counterparts due
to other factors, such as technology and know-how; when one of the parties can
exploit informational advantages to the detriment of the other party; and in case of
incomplete contracts, which leave room for strategic behaviour during the course of
the negotiation.
Moreover, UTPs are a peculiar case since they pose a policy problem, even if there is
no consistent and substantial evidence of litigation, and even in countries with
dedicated legal rules. This was acknowledged by most EU member states, also during
the recent Commission consultation on the Green Paper5. As a matter of fact, some
countries are currently changing their legal rules to more effectively address the
problem of UTP and solve the so-called “fear factor”, which reportedly inhibits
weaker parties from filing suit against their stronger partners.
Finally, also as a result of these peculiarities, UTPs have become subject over time to
a conundrum of public and private regulatory initiatives, which – as will be clarified
below – forms a unique mix for each Member State of the European Union. Some
countries (e.g. The Netherlands) tend to rely exclusively on general antitrust and
contract norms to address the issue, but are increasingly realizing the value and
importance of an industry-wide code of conduct; other countries (e.g. Germany) rely
mostly on legislation on abuse of economic dependence, often stretching the remit of
antitrust law beyond the otherwise rather narrow scope of EU competition rules; some
countries (e.g. Hungary, Latvia) have adopted dedicated sectoral legislation, either for
the retail sector as a whole or specifically for the food sector; and other countries (e.g.,
4 See COM(2013)37 final, 31 January 2013, at 6.
5 See http://ec.europa.eu/internal_market/consultations/2013/unfair-trading-practices/index_en.htm.
a) La ruptura, aunque sea de forma parcial, de una relación comercial establecida sin que haya
existido preaviso escrito y preciso con una antelación mínima de seis meses, salvo que se deba a
incumplimientos graves de las condiciones pactadas o en caso de fuerza mayor.
b) La obtención, bajo la amenaza de ruptura de las relaciones comerciales, de precios, condiciones de
pago, modalidades de venta, pago de cargos adicionales y otras condiciones de cooperación
comercial no recogidas en el contrato de suministro que se tenga pactado.
PAGE 56
which, as a result of the situation in the market, the supplier becomes dependent on
the buyer with regard to a possibility to supply own goods to consumers, and in
which the buyer may impose unilaterally beneficial trade conditions on the
supplier. There is no reference to any significant market power of suppliers. The
market power is assessed by the structure of the market, barriers of the entrance
into the market, certain market share and the financial power of the buyers. A
significant market power is presumed when the net turnover of a buyer exceeds 5
billion CZK. Despite its name, the Act is based upon the “economic dependence”
concept (also with some elements of the “superior bargaining position” concept).
The Significant Market Power Act concerns only sales of agricultural and food
products. It was enacted to tackle commercial retail chains allegedly abusing their
bargaining position against smaller suppliers from the agricultural and food sector.
It is not necessary for the supplier to be a “smaller” undertaking (an SME), as the
Act protects all suppliers in the agricultural and food sector under the following
conditions. Under Article 3 par. 1 of the Act, there are two main conditions that
must both be fulfilled before the legislation applies:
(i) The supplier must be in a position of economic dependence on the
purchaser as a result of the market situation; and
(ii) The purchaser is able to impose unilaterally beneficial trade conditions on
the supplier (that is, it has superior bargaining power).
Under Article 3(2) of the Significant Market Power Act, “significant market power
shall be deemed to be a relation between a buyer and a supplier [...] and in which
the buyer may impose unilaterally beneficial trade conditions on the supplier”.
According to information published in the media in July 2010, there have been
only two administrative proceedings opened so far (against two big retail chains)
regarding alleged infringements of the Act. These proceedings are still pending so
no final decision has been issued.
In France, Loi n°2010-874 du 27 juillet 2010 de modernisation de l’agriculture et
de la pêche for agricultural and fishing products and following Decrees, such as
2010/1753 on the diary sector, have introduced new rules on transparency in tariffs
and pricing and on certain unfair trading practices in the distribution and sale of
agri-food products, with clear focus on the B2B relationship between producer and
retailer. These provision add to an already very comprehensive set of rules
contained in the French Commercial Code, which tackle a wide variety of unfair
trading practices (see section 3.2 below).
In Hungary, Act CLXIV of 2005 on Trade contains provisions on abuse of
economic dependence in retail trade and, in the food sector, while Act XCV of
2009 “on the Prohibition of Unfair Trading Practices vis-à-vis the Suppliers of
Agricultural and Food Products” applies to undertakings producing, processing, or
redistributing agricultural and food industry products without processing, and
undertakings which sell such products to end customers. It covers conducts such as
the lack of written contract, unilateral modification clauses and the abuse of
economic dependence.
In Italy special rules are contained in Art. 62 Law Decree 24.1.2012, n° 1,
converted with amendments by Law 24.3.2012, n° 27, concerning commercial
(B2B) transactions in the field of cession of agricultural or agro-food products
(entered into force on 24.10.2012), implemented by Decree of the Ministry for
PAGE 57
farming, food and forestry policies 19.10.2012, n° 199 (entered into force on
8.12.2012). Article 62 introduces a mandatory contractual form, i.e., the contract
must be in writing, and must indicate the duration, quantities and characteristics of
the product sold, price, delivery and payment terms. It also imposes a maximum
payment deadline of 30 days from delivery or collection, for perishable products.
Article 62 also prohibits unfair practices such: as imposing unjustifiably
burdensome costs; obtaining undue and unjustifiable unilateral performance of
obligations; and subjecting continued business relationships to performance
obligations that have no connection with the objective of the contracts or
relationships. Violators are subject to a fine ranging between €516 to 20,000, or
€500 to 500,000, depending on the type of non-compliance. The Italian Antitrust
Authority is tasked with enforcement of these provisions. Article 62 is very
controversial. One commentator indicated concern that the frequency at which
retailer/supplier contracts are negotiated may prove impossible to satisfy the
Article’s drafting requirements.
In Latvia the Competition law was amended in 2008, and a new concept of
“dominant position in retail trade” (hereinafter the “DPRT”) was introduced69.
With this amendment the legislator attempted to protect the suppliers and
producers from abuse of both economic dependence and bargaining power by the
big supermarket chains. The concept of DPRT is a combination of superior
bargaining power and economic dependence and, therefore, shall be analysed in
conjunction. The provisions, thus, address both abuse of economic dependence of
smaller suppliers or producers as well as abuse of superior bargaining power by
the retailers, and the mentioned two concepts are not separated by the legislator.
The new Section 13(2) was introduced to the Section 13 “Prohibition of the Abuse
of Dominant Position” of Latvian Competition law. The provision covers retail
level traders without specifying the sector or field of retail. Nevertheless, although
not explicitly stated in Competition law, it is clear from the preparatory works that
the legislation aims at restricting unilateral conducts of the biggest supermarket
chains in particular.
The provisions are supposed to protect suppliers, namely producers and
wholesalers supplying their goods for sales in supermarket chains. The Latvian
Competition Council clarified that the DPRT concept significantly differs from the
classical dominant position. Unlike what occurs for the classical dominant
position, an undertaking holding DPRT is not in the position to act independently
from its competitors or consumers but is in a position to impose unfair terms or
payments on its suppliers. There are two preconditions for establishing DPRT:
market power or superior bargaining power (criteria for evaluation are: market
share in the relevant retail market and the purchase amounts) of the retailer and
dependence of the suppliers.
There is no particular threshold of the supplier’s turnover at which DPRT can be
presumed. When evaluating dependence of suppliers in DPRT cases where the
market power threshold is lower if compared to classical dominance, the threshold
of 22% of the supplier’s turnover defined in the Rewe/Meinl case is not decisive
and can be even lower (less than 20% in a particular case, Maxima being the
69
See i.a. http://infolex.lt/portal/ml/start.asp?act=legupd&lang=eng&biulid=189&srid=18&strid=1305.
PAGE 58
biggest buyer of the particular supplier). When the undertaking concerned holds
market power; this per se implies the existence of a risk of dependence of
suppliers. Thus, upon establishing the market power, dependence of suppliers can
be presumed. However, the Competition Council has to make assess the position
of each supplier on a case-by-case basis.
There is very little case law on DPRT. For the first time proceedings were initiated
in regard to conduct of supermarket chain “Maxima Latvija” in July 2010 but a
decision to close the case was adopted (published on 5 August 2010). In that case
the Competition Council clarified that the DPRT concept significantly differs from
the classical dominant position: unlike in case of the classical dominant position,
an undertaking holding DPRT is not in the position to act independently from its
competitors or consumers but is in a position to impose unfair terms or payments
on its suppliers. There are two preconditions for establishing DPRT: market power
or superior bargaining power (criteria for evaluation are: market share in the
relevant retail market and the purchase amounts) of the retailer and dependence of
the suppliers. Subsequently, on 30 November, 2010 (published on 22 December,
2010) NCA (Competition council) delivered the first infringement decision in
Section 13(2) case on DPRT case and imposed a fine of one of the biggest super
market chains “Rimi Latvia” for requesting unfair discounts (unfair payment for
access to the supermarket chain “Supernetto”) from Latvian dairy products
producer AS Valmieras Piens70.
In Lithuania, the Law on the Prohibition of Unfair Practices of Retailers targets behavior by (food) retailers with significant market power, meaning an
undertaking engaged in retail trade in non-specialized stores with mostly food,
beverages and tobacco, which alone or together with associated undertakings meet
all of the following requirements: (i) the sales area of at least 20 stores from all the
stores under its (their) management in the Republic of Lithuania is not less than
400 sq. m.; and (ii) their aggregate income in the last financial year is not less than
LTL 400 million. Those retailers are prohibited from carrying out any actions
contrary to fair business practices whereby the operational risk of the retailers is
70
A general settlement procedure is available also in cases of DPRT, including also abuse of economic
dependence. There are two kinds of settlement procedures available. One is called an “administrative
agreement”. In the case of the Competition council this type of settlement is possible only at the
stage where the infringement decision is adopted and has been appealed in the court. At this stage, in
order to end the court proceedings and save administrative resources, involved parties can propose
entering into an administrative agreement, thus reaching a settlement and putting to an end the court
proceedings. As a result, parties enter into an agreement where the undertakings concerned admit the
fact of the particular violation, undertake to withdraw the claim as well as to pay the fine. The
Competition council, in turn, is entitled to reduce the amount of fine as well as to alter the imposed
behavioural or other remedies. The other procedure, which works similarly to the settlement
procedure applied by the European Commission, is provided for in the Section 27 of the Competition
Law. The said norm states that before the final decision is taken, the Competition Council is entitled
to close the case without rendering the infringement decision provided that the undertakings
concerned undertakes in writing certain commitments which put to an end the violation and remedy
harm and hindrances caused to competition. This is possible provided that the Competition Council
considers the settlement appropriate and useful in particular circumstances. The Competition Council
normally opts for this type of settlement and closes the file in cases of lower importance, where the
undertaking concerned comes with such initiative, and provided that the Competition Council is
satisfied with the relevant remedies proposed y the undertaking an no further enforcement steps are
necessary.
PAGE 59
transferred to suppliers or they are imposed supplementary obligations or which
limit the possibilities of suppliers to freely operate in the market and which are
expressed as requirements for the supplier. A rather long list of practices is
specified in the law.
In December 2013, following a long debate, a new Decree-Law on unfair
commercial practices was adopted in Portugal (Decree-Law nº 166/2013 of 27
December). The Decree-law establishes that it is up to the Agency for Food and
Economic Security (ASAE) to monitor, conduct proceedings and sanction unfair
trading practices such as (Article 7): imposing on a counter-party the impossibility
of selling to any other company at a lower price; imposing/obtaining
disproportionate payments or other terms; requesting payments in exchange for a
promotion; and the imposing of retroactive changes in the contract. The new law is
focused on the retail but sector also carries specific – and harsher – provisions for
the agri-food sector, specifically when the supplier is a micro- or a small
enterprise. UTPs mentioned are: (i) returning or rejecting products without
objective reasons; (ii) imposing discounts on the purchase price; (iii) imposing
penalties in case the expected volume of sales is not reached; (iv) requesting
compensation of costs related to consumer complaints (unless the complaint was
due to the supplier’s negligence); and requesting various other contributions and
payments. All these are terms that unreasonably shift commercial risk onto the
small supplier.
In Romania, Law 321/2009 on food marketing applies to legal and natural
persons that carry marketing activities with food products, and incorporates a
previous code of practice, which was insufficiently enforced according to the
competent authority. Articles 4-10 of the law address a number of unfair trading
practices, whereas Articles 11-12 specify related criminal and monetary sanctions.
A recently adopted law in the Slovak Republic (Law 362/2012, in force since 1
January 2013) imposes conditions intended to prevent chain stores from abusing
their dominant economic position by imposing one-sided terms on economically
weaker parties. This includes a requirement that the period for payment of the
purchase price of foodstuffs may not end more than 30 days from receipt of the
invoice, or more than 45 days after delivery of the goods. As well as a set of
compulsory conditions, there is also a long list of as many as 44 unfair trading
practices, the insertion of which can lead to penalties ranging from €1,000 to
€300,000, with repeat penalties for continued non-compliance.
In Spain, after the National Competition Commission (CNC) published a ‘Report
on Manufacturer – Retailer Relationships in the Food Sector’ detailing the problem
of increased bargaining power in the retail industry, which was resulting in abusive
commercial practices against suppliers, a law was finally passed in August 2013
(n. 12). It should be noted that the Act expressly excludes from its scope the
following activities: (i) food transportation; (ii) trading with catering or hospitality
businesses; and (iii) product deliveries made to agricultural cooperatives and other
partnerships by the members of the same where the articles of association
(corporate bylaws) lay down this duty. The Act addresses practices such as
unilateral changes and unanticipated commercial payments (art. 12), the provision
of commercially sensitive information (art. 13), and the management of brands
(art. 14). The Preamble of Act 12/2013 states that the imbalance of bargaining
PAGE 60
power sometimes results “in potentially abusive trading practices and anti-
competitive practices that distort the market and have a negative effect on the
competitiveness of the agro-food sector as a whole”. Accordingly, Article 4 states
that “business relationships subject to this Act shall be governed by the principles
of balance and fair reciprocity between the parties, contractual freedom, good
faith, mutual interest, equitable sharing of risks and responsibilities, cooperation,
transparency and respect for free market competition.” It must be reminded that
several of the practices regulated by Act 12/2013 are already regulated by other
legislation (including the Unfair Competition Act) or are part of those conducts
that fall under the scope of the Competition (Antitrust) Act 15/2007 and articles
101 and 102 TFEU. This can lead to the concurrent application of different
legislation to the same conduct, or at least the need to conduct a comprehensive
study of such conduct from the perspective of three different pieces of legislation.
Garcia Vidal and Igartua Arregui (2013) observe that “it is still early to assess
whether this accumulation of legal remedies will be effective and beneficial to the
market or will otherwise complicate the legal analysis too much to the point of
generating uncertainties”71. The authors argue that the most important consequence
of the inclusion of these practices in the new Act lies in the new administrative
sanctions foreseen: article 23 of Act 12/2013 considers the commission of (some
of) the abusive trading practices a food contract infringement, resulting in the
imposition of fines that can range from 3,000 Euros to one million Euros72.
In the UK, the Grocery Code Adjudicator Act 2013 came into force on 25 June
2013, formally establishing the role of the Grocery Code Adjudicator. The
Adjudicator will oversee the implementation and enforcement of the Grocery
Supply Code of Practice, which came into force in February 2010 and imposes
legally binding obligations on the UK’s ten largest supermarket retailers –
principally those with an annual £1 billion turnover (the “Designated Retailers”).
Christine Tacon, formerly Managing Director of Co-operative Farms, has been
appointed as the Adjudicator for an initial four-year term. The role of Adjudicator
is intended to empower suppliers and strengthen their position in the market. This
will be achieved through the investigations which the Adjudicator may initiate
against Designated Retailers and through the duty to arbitrate (or appoint another
to arbitrate) any disputes brought by a supplier. It is also worth noting that the
Adjudicator may not make unauthorised disclosures of information relating to
arbitrations or complaints brought by suppliers where disclosure of such
information may identify the complainant supplier. The confidentiality provisions
contained within the Act are intended to provide anonymity for suppliers wishing
to initiate proceedings against a Designated Retailer.
71
See their article, Abusive trading practices in the “Measures for a better functioning food supply
chain Act 12/2013, of 2 August”, available online at
Whether the existing legislation addressing UTPs has developed in the area of
competition law, unfair competition law or other areas of law;
Whether legislation has been introduced as a mode of transposition of European
directives, mainly the 2006/114 Directive on Misleading and Comparative
Advertising or the 2005/29 Directive on Unfair Commercial Practices as
eventually extended to B2B relations;
What is the scope of existing legislation and private regulation addressing UTPs,
mainly whether they apply to B2B relations specifically or also to B2C relations,
whether they distinguish enterprises size-wise, whether they refer to a specific
sector (e.g. food, automotive) or operate cross-sector, whether they apply to the
whole chain or specifically on relations between retailers and suppliers;
How UTPs are defined in legislation and private regulation, whether through lists
(black, grey lists) or general clauses including open-end terms (e.g. fairness, good
faith, etc.);
Which are the main conducts and practices covered by legislation and private
regulation on UTPs and whether these concern the pre-contractual phase, the
definition of specific contractual terms, the contract execution phase, the phase
after a contract has expired (herein considered as post-contractual phase);
How this legislation or private regulation is enforced, whether via public or private
enforcement, with the involvement of which authorities (such as courts,
administrative bodies, arbitrators, mediators, etc.); within this area special
attention has been posed to the issue whether these authorities may receive
confidential complaints and whether they can launch ex officio investigations;
Which remedies are applied in case of violation of legislation or private regulation
addressing UTPs, both as individual or collective remedies applied in favour of
classes of victims infringed by the same UTP;
Whether and how disputes are litigated and solved;
The analysis has been developed separately for legislation (Section 2.1) and for private
regulation (Section 2.2).
With regard to legislation, special attention has been paid:
Across the 28 countries, to the level of legislative differentiation among them;
PAGE 68
Within each country, to the distinction between competition law, unfair
competition law and other areas of law, including contract law and law on unfair
practices irrespective of their contractual or extra-contractual nature.
With regard to private regulation the analysis has been developed paying special
attention to the distinction between private regulation concerning specific sectors (e.g.
food), specific segments of the value chain (more particularly, retail relations) and
private regulation with more general scope. One of the main issues underlying this part
of the analysis is whether, contrary to what often occurs in public legislation, private
regulation follows a functional approach to address UTPs more than a disciplinary
one.
2.1.1 Methodological caveat
The analysis herein reported has been developed on the basis of information provided
by our network of 28 legal experts, one for each Member State. It is important to note
that the information was provided based on a questionnaire (see Annex II), which was
validated by the European Commission, but which preceded the adoption of the Green
Paper. Accordingly, our experts have analyzed a much broader set of legislation and
private regulation, addressing a longer list of potential UTPs compared to the ones
included in the Green Paper. This means that our experts have retrieved information
on pieces of legislation that might be considered of limited relevance now that the
Green Paper has been adopted: these include competition laws (even when falling
within the scope of EU legislation), laws on misleading advertising, various forms of
contract and tort law. This represents a wealth of information that allows for a very
deep comparison of Member States: however, for a more in-depth analysis of the types
of UTPs identified in the Green Paper, we advise the reader to consult in particular
Section 3 below, in which we reconcile our findings with the categories of UTPs
identified in the Green Paper and provide a comparative analysis of the coverage and
modes of enforcement in the EU28.
2.2 Examined legislation per country
Each National Expert has been asked to identify relevant legislation addressing legal
issues concerning unfair trading practices in B2B relations, including and having
special regard to the relations between retailers and suppliers. Pieces of legislation
have been qualified distinguishing between Competition law, Unfair competition law
and Other areas of law. In the course of the analysis a sub-distinction has been made,
when appropriate, within the category of “Other areas of legislation” between Contract
Law and the remaining areas of relevant legislation.
Countries have most often reported more than one piece of legislation as addressing
UTPs in B2B relations. A coordination problem thus emerges among legal sources
without necessarily ensuring that all legal issues are addressed within the each legal
system. This effect is even more significant when several enforcement systems are
provided.
PAGE 69
2.2.1 Which areas of law are considered by Member States when
addressing UTPs in B2B relations?
One of the main questions addressed by this Study concerns the area of legislation in
charge of tackling UTPs in B2B relations. This type of analysis is of major importance
since different areas of law may be (and in fact are) characterized by different rules
concerning the way in which UTPs are defined, monitored, sanctioned.
As explained above, relevant legislation identified in each country has been divided in
several categories depending on the area of law, namely: (1) competition law; (2)
unfair competition law; (3) other types of law out of competition or unfair competition
law. Indeed, it has soon emerged that unfair trading practices in B2B relations are
addressed by national legislation through different legal instruments, sometimes
overlapping and/or leaving issues or practices unregulated.
2.2.1.1 Competition law and its limits
With special regard to the domains of competition law and unfair competition law it
should be acknowledged that the boundaries of these areas of law may vary depending
on legal traditions and doctrines, being absent a univocal definition of their scope and
contents throughout Europe. Indeed, national legal systems have sometimes enlarged
the scope of competition law well beyond the scope of EU competition law in order to
address unfair trading practices falling outside the concept of abuse of dominant
position. Within Competition Law, our analysis focused only on pieces of legislation
or specific provisions (within more extended acts) that were relevant for addressing
unfair trading practices. As explained in more detail below, this choice has enabled not
only to confirm that most countries have introduced at national level provisions
equivalent to art. 102 TFEU (on abuse of dominant position) but, also and most
importantly, that:
More than one third of the examined legal systems have enlarged the scope of
domestic competition law beyond abuse of dominant position by looking at
other forms of abuse (e.g. abuse of economic dependence) or critical situations in
which abuse can take place (e.g. economic dependence, superior bargaining power,
etc.).
Other countries have regulated similar conducts and situations out of
competition law, therefore acknowledging the limits of competition law in
addressing UTPs, as Competition Authorities themselves have themselves
observed in recent papers82.
In what follows, and in light of our explanation of the insufficiency of general
competition rules in addressing the problem of UTPs in the retail chain (see above,
Section 1.3.1), we only report competition laws in our tables to the extent that they can
be seen as going beyond the scope of EU antitrust rules, and that in doing so they
address more directly one or more UTPs as identified in the Commission Green Paper.
82
European Competition Network, ECN Activities In The Food Sector, Report on competition law
enforcement and market monitoring activities by European competition authorities in the food sector,
May 2012, p. 11, as quoted below, par. 5.
PAGE 70
2.2.1.2 Unfair competition law
Within Unfair Competition Law, national experts have listed pieces of legislation
addressing issues of fairness among competing firms not only horizontally but also
vertically (along the chain). As explained above, lacking a univocal definition of
unfair competition law at European level, reference has been made to domestic legal
traditions as described by our national experts. The subject matter of unfair
competition law goes from the general prohibition of unfair competition to advertising,
practices related to payment, trade practices in general, B2C commercial practices (as
regulated by provisions extended to B2B relations). The blurring boundaries between
antitrust and unfair competition law are even more apparent when it is considered that
respectively in Spain and Greece unfair competition law also includes provisions on
abuse of dominant position and economic dependence. As will be explained below,
Spanish unfair competition law regulates the abuse of economic dependence as well.
2.2.1.3 Other legislation
Our analysis led to the conclusion that competition and unfair competition law do not
exhaust the array of relevant legislation addressing unfair trading practices in B2B
relations at national level. Rather, several pieces of legislation have been identified as
possibly relevant in other areas of law. Some of these can be more easily identified
having regard to traditional disciplinary boundaries (e.g. contract law, tort law).
Moreover, following an established distinction, B2B legislation and more general
legislation (covering both B2C and B2B relations) have been separated. Apart from
these classifications, other types of legislation have been identified adopting a
functional instead of a disciplinary approach. Indeed, without necessarily focusing on
contract or extra-contractual relations, many pieces of legislation simply regulate trade
practices (or commercial practices, as it is common to name them in a B2C context).
Advertising law, among other types of legislation, usually follows this approach. In
these areas, contract law may still be very relevant (and often the same piece of
legislation combines disciplinary and functional language) but it does not represent the
core subject.83
The choice of the area of law matters when it comes to identifying the general
principles, the relevant practices, the protected interests, and the remedies provided by
each legal provision. Within this context, remarkable differences are observed across
countries in the field of specific B2B legislation, which takes a functional approach to
cover not only subject-matters inherent to contract law (e.g., unfair terms) but also
(and even more extensively) the area of B2B practices as such irrespective of their
contractual or extra-contractual nature. In some systems (Czech Republic, Hungary)
this type of legislation also includes provisions on abuse of significant market power,
which differs from solutions approached from a competition law perspective. A
similar choice was made in Italy, where in 2001 the legislator reformed the provision
on abuse of economic dependence, as originally included in a piece of legislation
standing out of competition law (the 1998 law on industrial sub-contracting), in order
83
It is important to underline that the functional approach still requires the interpreter, particularly the
enforcer, to fill the gaps by making reference to specific principles provided by disciplinary fields
such as contract law, tort law, competition law, etc.
PAGE 71
to tackle in the same provision the possible competition law consequences of the same
violation. Abuse of economic dependence is also one of the elements that define the
scope of the law on instruments to improve the functioning of the food chain recently
adopted in Spain (l. 12/2013, 2 August 2013).
Vices of consent, unfair exploitation, unfair terms in general are usual subject matters
of general contract law. In some countries, this type of legislation is indeed the only
safeguard against UTPs due to the lack of specific legislation (e.g., Luxembourg,
Malta): however, the absence of enforcement mechanisms other than the ordinary
courts often makes it very difficult to rely only on these types of general provisions.
2.2.2 Type of legislation potentially addressing unfair trading
practices (UTPs) in B2B relations
Building on the distinctions explained in the previous paragraph, the Study has
enabled to examine to what extent countries rely on unfair competition law, B2B laws,
specific laws for the retail sector or for a sub-sector (food), or private regulation when
tackling unfair trading practices. The pieces of legislation considered as potentially
relevant for our analysis are summarized in Table 1 below.
Table 1 – Legislation examined for the purposes of this report, per area of law
EU28 Legislation/private regulatory scheme Type* Austria Competition Act CL Act against Unfair Competition, Nr. 448/1984 UC
Local Supply Act, Nr. 392/1977 B2B Loi du 6 avril 2010 relative aux pratiques du marché et à la protection du consommateur O Belgium Law of 15 September 2006 on the Protection of Economic Competition
Loi du 6 avril 2010 relative aux pratiques du marché et à la protection du consommateur
(Moniteur belge du 12 avril 2010), Artt. 95-99
Bulgaria Protection of Competition Act, Nr. 102/2008 CL/UC Croatia Law on Trade, Nr. 87/08, 96/08, 116/08, 76/09, 114/11, 68/13 B2B Law on Prohibited Advertising, Nr. 43/09 B2B Law on Financing and Pre-Bankruptcy Settlement, Nr. 108/12, 114/12, 81/13 B2B Law on Obligatory Relations, Nr. 35/05, 41/08, 125/11 O Cyprus Protection of Competition Act, Nr. 13(I)2008 CL Control of Misleading and Comparative Advertising Act, Nr. 92(I)/2000 B2B Czech
Republic
Act Nr. 513/1991 Coll. Commercial Code, Sec. 44-55 UC Act Nr. 395/2009 Coll. on Significant Market Power in the Sale of Agricultural and Food
Products and Abuse thereof
FD
Act Nr. 89/2012 Coll. The Civil Code abrogating Act No. 40/1964 Coll. Civil Code O Denmark Danish Marketing Practices Act, Consolidation Act No. 58/2012, Sec. 1 and 3 O Danish Contracts Act, 781/1996 O Estonia Advertising Act B2B Law of Obligations Act, 2001 O General Part of the Civil Code Act,2002, § 86 O Finland Unfair Trade (Business) Practices Act, Nr. 1061/1978 UC Unfair Terms in Contract between Businesses Act, Nr. 1062/1993 B2B Contract Act, Nr. 228/1929 O France Commercial Code, Art. L. 420-2 al. 2 (abuse of economic dependence) CL Civil Code, 1804, Artt. 1382-1383 UC Commercial Code, Art. L. 330-3 (distribution, franchise, dealership) B2B Commercial Code, Art. L. 441-3 (invoice, contents and information duties) B2B Commercial Code, Art. L. 441-6 (B2B sales contract) B2B Commercial Code, Art. L. 441-7 (sale/supply contracts between suppliers and retailers or
between good producer and retailers, formal requirements for contract conclusion)
B2B
Commercial Code, Art. L. 442-2 (below cost sales) B2B Commercial Code, Art. L. 442-5 (minimum resale prices) B2B
PAGE 72
Commercial Code, Art. L. 442-6, titre IV, livre IV (Restrictive Practices) B2B Loi n°2010-874 du 27 juillet 2010 de modernisation de l’agriculture et de la pêche
(2010) for agricultural products
FD
Consumption Code, Art. L. 120-1, Art. L. 121-1 I & III (Unfair Commercial Practices) O Civil Code, artt. 1134 ("force obligatoire du contrat"; the contract is the law of the
parties; contractual good faith), 1137 & 1147 & 1150 (contractual obligations and
contractual liability
O
Germany Act Against Restraints of Competition, 1957 (BGBl I, 1081) CL Act Against Unfair Competition 2004, BGBl I, 1414 ff. UC German Civil Code 1896 (RGBl, 195) O Greece Law Nr. 146/1914 “Regarding unfair competition” UC
Law Nr. 2251/1994 “Protection of consumers” O Hungary Act LVII of 1996 on the Prohibition of Unfair and Restrictive Market Practices CL/UC Act CLXIV of 2005 on Trade B2B Act XLVIII of 2008 on Essential Conditions of and Certain Limitations to Business
Advertising Activity
B2B
Act XCV. of 2009 on Prohibition of Unfair Distribution Behavior against Suppliers in
Relation with agricultural and food Products
FD
Act IV of 1959 on the Civil Code of the Republic of Hungary O Ireland European Communities (Late Payment in Commercial Transactions) Regulations 2012
(S. I. No. 580/2012), as amended by European Communities (Late Payment in
Sale of Goods Act, 1893 (as amended by, in particular, the Sale of Goods and Supply of
Services Act 1980 (No. 16/1980) and the Consumer Credit Act 1995 (No. 24/1995), Sec.
12-15.
O
EU Misleading and Comparative Marketing Communications Regulations 2007 (S.I. No.
774/2007)
O
Italy Italian Civil Code, 1942, Art. 2598 (Unfair Competition Actions) UC Law 18.6.1998, Nr. 192, concerning sub-supply relationships in productive activities,
Art. 9
B2B
Legislative Decree 9.10.2002, Nr. 231, implementing the Late Payment Directive
2000/35, Art. 7
B2B
Law 6.5.2004, Nr. 129 on “commercial affiliation” (franchising), Art. 6 B2B Legislative Decree 2.08. 2007, Nr. 145 on Misleading Advertising B2B Law-decree 24.1.2012, Nr. 1, converted with amendments by Law 24.3.2012, Nr. 27,
concerning commercial (B2B) transactions in the field of cession of agricultural or agri-
food products, Art. 62
FD
Italian Civil Code, Artt. 1341-1342 (Unfair Standard Contract Terms) O Legislative Decree 6.9.2005, Nr. 206 (Codice del consumo), Artt. 18-27 O Latvia Competition Law, 2008, Sec. 13 (1), 13 (2) and 18, including a specific provision on
ADP by retailers
RT
Law on Advertising, 20 December 1999 B2B Lithuania Law on Competition of the Republic of Lithuania, Nr. 30-856, 1999 UC Law on Advertising of the Republic of Lithuania, Nr. 64-1937, 2000 B2B Law on the Prevention of Late Payment in Commercial Transactions of the Republic of
Lithuania, Nr. 123-5571, 2003, Art. 9
B2B
Law on the Prohibition of Unfair Practices of Retailers of the Republic of Lithuania, Nr.
1-31, 2009
RT
Civil Code of the Republic of Lithuania, Nr. 74-2262, 2000 O Luxembourg Law on Certain Commercial Practices and the Prohibition of Unfair Competition, 30 July
2002
UC
Malta Commercial Code, Sub-title III (Of Limits of Competition) to Title II, (Chapter 13 of the
Laws of Malta), 1857, Artt. 32-37
UC
Trade Descriptions Act (Chapter 313 of the Laws of Malta), enacted by virtue of Act
XXII of 1986
B2B
Poland Act on combating unfair competition, 16 April 1993 UC Civil Code, 23 April 1964 O Pharmaceutical Law, 6 September 2001 O Portugal Law Nr. 19/2012 (Competition Law) CL Decree-Law Nr. 446/85 of 25/10 (unfair contractual terms), sec. II (B2B relations) B2B Decree-Law Nr. 62/2013 of 10/05 (combating late payment on commercial transactions B2B Decree-Law nº 166/2013 of 27 December on individual restrictive trade practices B2B Decree-Law Nr. 446/85 of 25/10 (unfair contractual terms), other sections O
PAGE 73
Romania Law on Competition, Nr. 21/1996 CL/UC Law Nr. 11/91 on unfair competition B2B Law on Food Marketing, Nr. 321/2009 FD Slovakia Act Nr. 513/1991 Coll. Commercial Code UC Act No. 362/2012 on unreasonable conditions in trade relations subject of which are
foodstuffs entered into force on January 1, 2013.
FD
Slovenia Protection of Competition Act, Nr. 18/1993 UC
Constitution of the Republic of Slovenia, Nr. 33I/1991, third Paragraph of Art. 74 UC Media Act transposing Directive 114/2006 B2B Consumer Protection Act, Nr. 20/1998 O Spain Law 3/1991, Unfair Competition Act – Article 16(2) UC Law 34/1988, General Advertisement Act B2B Law 7/1996, Retail Trade Act RT Law 12/2013 on measures to improve the functioning of the food chain FD Civil code, art. 7, 1258 O Comm. Code, art. 57 O Law on terms and conditions (13 April 1998, n. 7) O Sweden Swedish Act on Marketing Practices, Nr. 486/2008 UC Sweden Contracts Act, 1915 O The
Netherlands
Dutch Civil Code, entry into force on 1 January 1992 B2B/O
United
Kingdom
Business Protection from Misleading Marketing Regulations, Nr.1276/2008 B2B Groceries Code Adjudicator Bill, 2013 (enforcement of private regulation) FD Legend: CL = Competition Law; UC = Unfair Competition Law; B2B = Specific law on B2B relations; RT = Specific law in the
retail sector; FD = Specific law for the food/grocery sector; O = Other type of legislation
As shown in the table, there is a significant variety of types of legislation and also
different forms of private regulation that could be considered as relevant for the
purposes of our study. This is due to the fact that:
- Some countries have decided to rely on the concept of abuse of economic
dependence in a vertical B2B relationship, and have accordingly expanded the
scope of their competition laws (Germany, Austria), or included such provisions in
their unfair competition law (Spain).
- At the same time, some countries have decided to tackle the issue of UTPs by
mandating or directly incorporating codes of practice or other self-regulatory
initiatives in their legislation, and providing for public enforcement, especially in
the food sector.
- Still, other countries have decided to adopt a functional approach and refrain from
using competition law, unfair competition law or general contract law, and instead
adopted ad hoc B2B legislation (or superior bargaining power) to tackle UTPs,
either generally or specifically for the retail or the agri-food sector.
Our research shows that, as a tendency, the application of competition law normally
excludes that the same practice is scrutinized through the lenses of legislation different
from competition law; also, the application of legislation different from competition
law excludes that the same practice is scrutinized through the lenses of competition
law84. This approach does not rule out competition law as a relevant source, whereas it
84
This is confirmed for example by the debate following the decision rendered by the Belgian Cour de
Cassation on 7 January 2000 (Cass. 7.1.2000 RCJB 2001, p. 249): indeed, while excluding that
unfair trade practice law may contradict competition law when dealing with practices having as
exclusive effect the one of restricting competition (and not any other), the Court implicitly
acknowledges that a practice which is competition law compliant can still be sanctioned if it violates
distinct rules, e.g. the one prohibiting abuse of law. Which practices may be qualified as abusive in
PAGE 74
poses an issue of coordination among different disciplines in the area covered by this
Study. As the European Competition Network has pointed out, UTPs may anyway
produce anti-competitive effects in the long term and this leaves space for
complementarity among different disciplines and legal instruments.
2.2.2.1 What are objectives and scope of application of relevant legislation?
We investigated whether legislation addressing UTPs in B2B relations pursues single
or several objectives and, in the latter case, how these objectives are prioritized. We
then first asked our network of national experts to declare the classes of interests and
objectives pursued by each branch of law, and then to attach priorities to these classes
of interest per each area of legislation. In this second part of the analysis we have
distinguished contract law from other areas of legislation.
What emerges is that in general, countries tend to pursue similar objectives when
adopting similar types of legislation: however, there are differences in the interests that
are explicitly protected or considered in each area of legislation; for example, whereas
consumers are most often considered as beneficiaries of examined legislation,
suppliers not always are, especially in the area of unfair competition law. Therefore,
legislation is generally multi-objective but legal systems and, within legal systems,
different areas of legislation may protect some class of interests (e.g. suppliers, or
retailers) to a different extent.
We also examined whether legislation addressing UTPs in B2B relations distinguishes
among different types of enterprises depending on their size. Indeed, there is still a
lively debate on whether B2B legislation should be adapted to the needs of small
firms85. Some countries have implicitly incorporated the problem of protecting micro-
or small enterprises by extending the scope of the unfair commercial practices
directive (normally tackling only B2C transactions) also to B2b transactions, in which
one of the parties is a small or micro enterprise. Other Member States have introduced
size thresholds in their law, either by requiring that one of the parties is a small
enterprise, or by specifying that the law applies only in case the strong party is a firm
that passes certain thresholds of size, or turnover (Czech Republic, Hungary,
Lithuania, United Kingdom). Not surprisingly, our results show that the types of
legislation that is mostly inclined to differentiate firms size-wise are B2B legislation
and “other” legislation, whereas unfair competition law does not do so to a relevant
extent. Our analysis led us to other important findings, which shed further light on the
current landscape of national legislation that fully or partly addresses UTPs in the
retail chain or related sub-sectors. In particular, the following findings can be
highlighted:
Countries differ as to the extent to which UTPs are regulated specifically
through black or grey lists, or only through general clauses. This is also
this perspective is a question of interpretation and some scholars suggest to follow a restrictive
approach on this issue for sake of legal certainty (D. Vandermeersch, Note in Revue de droit
commercial Belge, 2000, p. 372 ff.; J. Stuyck, Handels- en Economisch Recht, 3e ed., 2013, p. 230
f.).
85 See European Commission, Review of the "Small Business Act" for Europe, Brussels, 23.2.2011,
COM(2011) 78 final.
PAGE 75
broadly linked to the type of legislation adopted to address the issue of UTPs:
unfair competition laws and ad hoc B2B laws tend to combine general clauses
with black and/or grey lists to a greater extent than other areas of law86.
Comparatively, other areas of law attach priority to the use of general clauses
without black or grey lists.
Member State legislation refer to various phases of the life of a commercial
relationship. Pre-contractual practices can be tackled by unfair competition
law, contract law and B2B law; national legislation tackles contract terms
through contract law, as well as B2B legislation; countries relying on B2B
legislation on abuse of economic dependence or similar concepts tend to focus
on the period during which the contract is executed. Our comparative tables at
Annex 3 provide detailed information on the phases of the commercial
relationship covered by the law
2.2.3 Public and private enforcement
Rules addressing UTPs are supported by both public and private enforcement
mechanisms. While private enforcement often relies on general principles of contracts
and torts law, legislation addressing (some type of) UTPs in B2B relations has
gradually expanded the specific role of public enforcement in this area. Within public
enforcement, due to the partial overlapping between B2B UTPs and competition law
matters (abuse of dominant position and, where sanctioned under competition law,
abuse of economic dependence, abuse of significant market power and the like),
competition authorities often play a role. Our results also show that, in at least nine
Member States some type of public enforcing authority different from the Competition
authority is established, often with inspecting and monitoring powers, sometimes also
with sanctioning powers (See Section 3.5 below). The scope of these powers and the
modes of enforcement significantly vary from one country to another. In four legal
systems these authorities have a specific competence in the agri-food sector although
they do not necessarily operate in the area of UTPs only. When they are not sector-
specific, they might be assigned functions pertinent to determined business aspects
(e.g. marketing communication and advertising) or to more general economic interests
(like for some agencies or office within economic Ministries).
The following examples are worth being presented under this perspective:
- In France the following public authorities contribute to enforcing substantive rules
on UTPs:
o the Commission d’Examen des Pratiques Commerciales (CEPC),
established by the law on “pratiques restrictives” and empowered to
provide advice and recommendations upon request of private operators,
trade associations, public authorities; though lacking sanctioning powers,
the CEPS has a strong impact on compliance since its declarations are
taken in good consideration before courts; it can investigate ex officio, and
receive confidential complaints;
86
Black lists contain terms or clauses that are in any case prohibited. Grey lists contain clauses that are
presumed to be unlawful, but the presumption is rebuttable.
PAGE 76
o the Direction Générale de la Concurrence, de la Consommation et de la
Répression des Fraudes (DGCCRF) has investigation powers on UTP, and
even sanctioning prerogatives on behalf of the Ministry of economy; it is
important to note that, besides acting as public enforcer (with sanctioning
powers, though exceptionally), the Ministry is also enabled by law to bring
private claims “on behalf” of the victim with the knowledge (but not
necessarily her consent) of the victim whose anonymity is anyway ensured;
- In Hungary the Act XCV. of 2009 on prohibition of unfair distribution behaviour
against suppliers in relation with agricultural and food products provides that the
agricultural administration authority acts on request or ex officio in case of
violation of the act. Among other measures the Authority will publish on its
website a ‘Blacklist’ reporting the names of the sanctioned retailers (with company
data, nature of the infringement, amount of the fine imposed);
- In Portugal the Portuguese Authority for Food and Economic Security (ASAE) -
oversees economic activities in the food and non-food sectors and monitors
compliance with existing rules. Infringements are then subject to fines applied by
the Portuguese Competition Authority, and can also lead to the awarding of
damages in civil courts. Since the adoption of Decree-Law nº 166/2013 of 27
December, it is up to ASAE to monitor, conduct proceedings and sanction UTPs:
previously enforcement was a joint responsibility of ASAE and the competition
authority.
- In the UK, the newly established Grocery Code Adjudicator oversees the
implementation and enforcement of the Grocery Supply Code of Practice
(“GSCOP”) which came into force in February 2010 and imposes legally binding
obligations on the UK’s ten largest supermarket retailers – principally those with
an annual £1 billion turnover (the “Designated Retailers”).
Within private enforcement, disputes on UTPs can always be brought before a civil
court. Arbitration is often mentioned by the majority of the national reporters as an
alternative mechanism of dispute resolution, although in many cases victims are said
reluctant to resort to either courts or arbitration for the fear of retaliation by the retailer
(so called fear factor). Mediation represents one the provided instruments in
approximately half of the examined legal systems. Moreover in 10 legal systems
alternative dispute resolution mechanisms (including mediation and arbitration) are
established within specific bodies or organisms due to deal with B2B practices and
affairs (often chambers of commerce or enterprises’ associations).
PAGE 77
Table 2 –Authorities in charge of enforcement
Countries Courts Competition authorities
Admin. Authority
- Food
Admin. Authority
- other
Other public bodies
Media-tion Arbi-
tration
Private enforcement/mechanisms
Austria X X X X
Belgium X X X
Bulgaria X X - X X
Croatia X X X X
Cyprus X X X X X
Czech Republic X X X X X
Denmark X
Estonia X X X
Finland X - -
France X X X X X X
Germany X X X - X X
Greece X X X X
Hungary X X X X X X
Ireland X - -
Italy X X X X X
Latvia X X X X
Lithuania X X X X X
Luxembourg X
Malta X X X
Poland X -
Portugal X X X X -
Romania X X X -
Slovakia X X X X X X
Slovenia X X X - X
Spain X X X X X
Sweden X - -
The Netherlands X X X
United Kingdom X X X
Total 28 14 4 2 12 15 19 10
2.2.3.1 Confidential complaints and ex officio investigations
As explained above, one of the main obstacles to the use of enforcement mechanisms
based on active claims by the victims is represented by the “fear factor” (see above,
1.1.4). One possible, partial solution could be provided, at least in theory, in those
legal systems admitting procedures based on confidential complaints or complaints
whose confidentiality may be preserved with respect to the public upon request by the
interested party (the victim). As shown in table 3 below, this possibility is available for
some of the legislation in place in less than half of the Member States, in some cases
limited to the food sector. Moreover, in practice, anonymity may be difficult to ensure
in all those cases in which practices are imposed on a single counter-party or a limited
number thereof. Indeed, some national experts report that in fact confidentiality might
be hindered by the need to provide detailed information, whose origin may be traced
back to the victim. It should also be highlighted that in some systems the competent
authority may assess the admissibility of confidentiality on a case-by-case basis (see
the Italian law on agri-food contracts, 2012).
PAGE 78
Our results also show that in a number of legal systems the Competition Authority has
the power to launch ex officio investigations. However, only in a few of them this
power is specifically assigned to investigate about cases not falling within the remit of
competition law. Among these:
- Italy (e.g. in case of violation of the law on agri-food contracts or the one on unfair
commercial practices as extended to B2b);
- Lithuania (e.g. under the Law on Advertising as well as under the Law on the
Prohibition of unfair practices of Retailers).
At the same time, a higher number of legal systems assign similar powers to other
public authorities, often rooted within the Ministry of Economy or Development.
Among these the above-mentioned institutions operating in France should be recalled:
the Commission d’Examen des Pratiques Commerciales (CEPC) and the Direction
Générale de la Concurrence, de la Consommation et de la Répression des Fraudes
(DGCCRF). Section 3.3. below provides in-depth information about enforcement
authorities that are able to capture a selected number of conducts, which we term
“selected UTPs”.
PAGE 79
Table 3 – Selected public legislation, enforcing authority, ex officio investigation and confidential complaints
Country Name of legislation Type of legislation
Enforcing Authority Ex officio investigations
confidential complaints
Austria Act against Unfair Competition, Nr. 448/1984 UC NCA No (only cease and desist)
No
Competition Act CL NCA No (only cease and desist)
No
Belgium No.
Bulgaria Protection of Competition Act, State Gazette Nr. 102/2008
UC NCA Yes No (can only be treated as
signals)
Croatia Law on Trade, Nr. 87/08, 96/08, 116/08, 76/09, 114/11, 68/13
B2B State Inspectorate, Commercial Court, Misdemeanour Court
Yes (only state inspectorate and
Misdemeanour Court); No (Commercial Court)
Yes
Cyprus Protection of Competition Act, Nr. 13(I)2008 CL (B2B) NCA No Yes
Czech Republic
Act No. 89/2012 Coll. The Civil Code O courts No No
Act Nr. 395/2009 Coll. on Significant Market Power in the Sale of Agricultural and Food Products and Abuse thereof
FD NCA Yes Yes
Act No. 513/1991 Coll. Commercial Code O courts No No
Denmark No.
Estonia Law on obligations 2001 O Court No No
Finland Contract Act 1929 O Judge No No
Unfair Terms in Contract between Businesses Act, Nr. 1062/1993
B2B Market Court No No
France Commercial Code Artt. 120-122 B2B DGCCRF/Civil and Criminal Judges yes (if DGCCRF) yes (if DGCCRF)
Commercial Code Art. L. 420-2.2 B2B Competition council upon investigation by DGCCRF/Judge (Civil or criminal)
yes (if DGCCRF) yes (if DGCCRF)
PAGE 80
Commercial Code Art. L. 442-6 C (implicit) B2B CEPC /Judge (eventually ruling on the claim of the Ministry of Economy upon investigation by DGCCRF)
yes (if DGCCRF) yes (if DGCCRF and Ministry)
Civil Code Art. 1382-1383 O Judge
Commercial Code Art. L. 442-6 I B2B CEPC /Judge (eventually ruling on the claim of the Ministry of Economy upon investigation by DGCCRF)
yes (if DGCCRF) yes (if DGCCRF and Ministry)
Germany German Civil Code, in the version published on 2 January 2002 (BGBl. I S. 42, ber. S. 2909, 2003 I S. 738), as last amended by the Act of 1 October 2013 (BGBl. I S. 3719
O Judge No No
Act Against Restraints of Competition in the version published on 15 July 2005 (BGBl. I S. 2114, ber. 2009 I S. 3850), as last amended by the Act of 7 August 2013 (BGBl. I S. 3154)
CL (B2B) NCA Yes Yes
German Civil Code 1896 (RGBl, 195) O Judge No No
Act Against Unfair Competition in the version published on 3 July 2004 (BGBl. I S. 1414), as last amended by the Act of 1 October 2013 (BGBl. I S. 3714)
UC NCA No No
Greece Law Nr. 146/1914 “Regarding unfair competition” UC Courts No No
Hungary Act XCV. of 2009 on Prohibition of Unfair Distribution Behavior against Suppliers in Relation with agricultural and food Products
FD National Food Chain Safety Office (“NÉbiH”)
Yes Yes
Act CLXIV of 2005 on Trade B2B NCA Yes Yes
Ireland Sale of Goods Act, 1893 [as amended by, in particular, the Sale of Goods and Supply of Services Act 1980 (No. 16/1980) and the Consumer Credit Act 1995 (No. 24/1995)]
B2B/B2C Court No No
Italy Consumer Code Artt. 18-27 O Judge, NCA No (yes for NCA) No (both)
Law-decree 24.1.2012, Nr. 1, converted with amendments by Law 24.3.2012, Nr. 27, concerning commercial (B2B) transactions in the field of cession of agricultural or agri-food products, Art. 62
FD NCA or judge Yes (NCA); No (judge)
No
Law 18.6.1998, Nr. 192, concerning sub-supply relationships in productive activities, Art. 9
B2B Judge (NCA only when relevant as antitrust infringement)
No No
PAGE 81
Artt. 1341-1342 Civil Code O Judge No No
Law 6.5.2004, Nr. 129 on “commercial affiliation” (franchising), Art. 6
B2B Judge No No
Latvia Competition Law, 2008, Sec. 13 (1), 13 (2) and 18, including a specific provision on ADP by retailers
RT NCA Yes Yes
Lithuania Civil Code O Courts No No
Law on the Prohibition of Unfair Practices of Retailers of the Republic of Lithuania, Nr. 1-31, 2009
RT NCA, Court Yes (NCA only) Yes (NCA only)
Law on Competition of the Republic of Lithuania, Nr. 30-856, 1999
UC NCA, Court Yes (NCA only) Yes (NCA only)
Luxembourg No.
Malta No.
Netherlands Dutch Civil Code, entry into force on 1 January 1992 O Judge No No
Poland Act on combating unfair competition, 16 April 1993 UC Judge No No
Portugal Decree-Law Nr. 166/2013 (unfair commercial practices) B2B (with specific rules for agri-
food)
ASAE Yes No
Law Nr. 19/2012 (Competition Law) CL (B2B) NCA No No
Romania Law on Competition, Nr. 21/1996 CL/B2B NCA No No
Law on Food Marketing, Nr. 321/2009 FD National Authority for Consumer Protection
Yes No
Slovakia Act No. 362/2012 on unreasonable conditions in trade relations subject of which are foodstuffs entered into force on January 1, 2013.
FD The Ministry of Agriculture and Rural Development)
Yes No
Act Nr. 513/1991 Coll. Commercial Code UC Judge No No
Slovenia Protection of Competition Act, Nr. 18/1993 UC Market inspector Yes
Spain Law 7/1998 General Conditions Act Article 7 letter b)
O Courts No No
Law 12/2013 on measures to improve the functioning of the food chain
FD Administration General del Estado Yes Yes
Law 3/1991, Unfair Competition Act – Article 16(2) UC Commercial Courts No No
Law 12/2013 on measures to improve the functioning of the food chain
FD Administration General del Estado Yes Yes
Article 1902 Civil Code O Courts No No
Sweden No.
PAGE 82
United Kingdom
Groceries Code Adjudicator Act 2013 FD Grocery adjudicator Yes Yes (but in this case, no financial penalty can
be imposed)
Unfair Contract Terms Act 1977 O judge Legend: CL = Competition Law; UC = Unfair Competition Law; B2B = Specific law on B2B relations; RT = Specific law in the retail sector; FD = Specific law for the food/grocery sector; O = Other type of legislation
PAGE 83
2.2.4 Remedies
The analysis on remedies against unfair trading practices in B2B relations in the 28
examined countries focused on the measures that can be enacted by the above
mentioned authorities within mechanisms of public and private enforcement.
The following remedies have been primarily taken into account:
- injunctions, as orders requesting to “cease and desist” from a given conduct and/or,
in some cases, to adopt specific measures to comply with a substantive rule;
- invalidity (or lack of legal effects, here referred to as invalidity): this remedy
specifically concerns unfair practices accompanying the conclusion of a contract,
the drafting of a specific clause, the adoption of any other legal act due to produce
legal effects (e.g. withdrawal from a contract, modification of a contract clause,
etc.) upon compliance with legal norms;
- monetary penalties, consisting in monetary sanctions (fines) normally correlated to
the importance of non compliance and destined to the State, the enforcing
authority or alike (but not to the victim as a compensation for the suffered
damages);
- astreintes, as a monetary sanction due to reinforce any other of the above
mentioned remedies in case of non compliance with the imposed measure; it is
correlated to the duration of non compliance;
- damages, as a remedy due to compensate the victim for the suffered prejudice
(normally including the economic loss and, depending on legal systems and
circumstances, the lost profits);
- restitution, as a measure due to recover from the author of the violation unlawful
profits or goods whose title has not passed due, for example, to contract invalidity.
We found that all legal systems provide remedies against UTPs in B2B relations like
injunctions, invalidity, monetary penalties and damages. Most of them provide
restitution, whereas astreintes exist in less than half of the examined countries.
A degree of correlation exists between the choice of public v. private enforcement and
the associated remedies. For example:
Injunction is very often available under unfair competition law. By contrast,
contract law addressing UTPs practices is supported by injunction to a much more
limited extent. It is important to underline that, unlike what occurs in the case of
unfair competition law, the availability of injunction in the other areas of law
(including contract law) represents a more recent trend. These remedies are
generally applied within specific domains in each legal system (e.g. the law on
unfair practices in the agri-food contracts) without having a general application to
all UTPs in B2B relations.
By contrast, invalidity or lack of legal effects is much more commonly provided
under contract law than under unfair competition law and other law on trade
practices.
Astreintes are more used under B2B law than under contract and unfair
competition law.
PAGE 84
Damages represent an accessible remedy through any area of law to an almost
equivalent extent, including under unfair competition law .
2.3 Cross-border B2B unfair trading practices
One of the objectives pursued by the Study is whether current national legislation in
the 28 legal systems specifically addresses UTPs in B2B cross-borders relations.
It is argued that UTPs may have a negative impact on cross-border trade and hinder
the proper functioning of the Single Market, since suppliers can be reluctant to deal
with foreign retailers for fear of being victims of UTPs in an unfamiliar national legal
context (see Green paper, p. 6).
It should be observed that the impact of cross-border UTPs may be influenced not only
by the degree of fragmentation within the European legal framework but also by the
way in which national legislation applies to cross-border disputes. Indeed the
uncertainty concerning the identification of applicable law may increase the risk and
costs linked to possible cross-border disputes.
While the Rome II Regulation (together with some equivalent provisions at domestic
level in Europe) provides for specific rules on conflicts of laws as regards unfair
competition (see art. 6, Rome II), no specific rule is provided in Rome I as regards
UTPs dealing with contractual obligations. Moreover this Study has shown that the
divide between contractual and extra-contractual obligations (on which the European
private international law is based) is often not applicable to relevant legislation on
UTPs, namely when this is applicable irrespective the contractual or extra-contractual
nature of B2B relations (as it is often the case). The “private international law puzzle”
on UTPs in B2B retail relations is examined more in depth in par. 2.3.1 below.
Our findings show that very rarely or never national legal systems provide more
specific rules on conflicts of laws applicable to B2B UTPs. However, they might
provide for mandatory rules which can be qualified as “loi de police”, therefore
prevailing over applicable law to the contract.
2.3.1 Cross-border UTPs and private international law87
The expansion of intra EU trade has increased the number of supply chains that
include enterprises located in different Member States and in many instances non EU
enterprises. The length and composition of the supply chain is reflected in the
development of cross border unfair trade practices that may be deployed along a chain.
When that is the case which rules should be applicable? The answer depends on the
type of practice and the configuration by each legal system.
As it was showed above Member States differ significantly in selecting the applicable
regime and often a single practice is subject to numerous rules depending on the
‘specific dimension’. While competition law represents a relatively constant feature
across Member States, the extent to which it is combined with unfair competition,
contractual or extra-contractual approach varies rather significantly.
87
This section is authored by Prof. Sandrine Clavel.
PAGE 85
The trans-border nature of UTP poses several problems, which are currently regulated
by Rome I and Rome II. The main issues concern:
the relevant sources
the possibility to choose applicable laws
the applicable law when parties cannot or do not choose (which is often the
case given the subject matter of unfair trade practices).
Even if it is quite rare and somewhat extravagant to imagine that parties would
indicate the applicable law concerning UTP it is worth examining this possibility first
and then move to the case where parties have not chosen or cannot choose the
applicable law, once resolved the issue of the relevant sources applicable.
2.3.1.1 Relevant sources (Rome I and Rome II)
The main issue here is the one of qualification. When there is a direct contractual link
between the parties (or, to follow the definition given by the CJEU, a “voluntary
commitment” of the parties), the normal private international law qualification should
be “contractual obligations”, with the consequence that Regulation Rome I will apply
to define the law ruling the relationship between the parties. Absent any contract
between the parties, the relevant qualification being “extracontractual obligations”,
Regulation Rome II should apply to select the applicable law.
However, the “contractual” qualification may not necessarily apply, even if there is a
contract between the parties. The example of the French system is interesting in this
regard. Ruling on the application of Regulation Brussels I (art. 5-1 and 5-3) for the
implementation of article L. 442-6 I 5° of the commercial code (unfair termination of a
contract), the French Cour de cassation has decided that extra-contractual liability is at
stake, notwithstanding the existence of a contract between the parties (with the result
that art. 5-3 of RBI applies, not art. 5-1). If this means that article L. 442-6 as a whole
gives rise to extra-contractual liability, even where a contract exists, then the logical
consequence is that the law applicable to cross border UTP depends, in the French
system, on Regulation Rome II, not RRI. Certainly, there is a need for a clarification,
for different qualifications may apply in different Member States, undermining the
harmonized application of RRI and RRII.
The applicable law will depend on the applicable Regulation.
2.3.1.2 Choice of law
Regulation Rome I. Choice of law is normally possible, pursuant to article 3 of RRI,
and it needs not to be specifically made for UTP: the law chosen by the parties applies
to any issue relating to the contract, including UTP between contractors and unfair
terms. Two different issues are worth considering.
Firstly, the case where a foreign law, chosen by the parties, contradicts in ruling on
UTP the competition law rules of the forum (given that many Member States rule on
UTP through competition law). The conflict will most certainly be solved in favor of
the competition law rules of the forum, the chosen law being set aside. This is because
competition law usually qualifies as lois de police, which supersede the law chosen by
PAGE 86
the parties, pursuant to article 9 RRI. However, two difficulties may occur. The first
one when the chosen law contradicts the competition law rules of different Member
States, other than the forum: foreign lois de police may apply in the forum, but such
application is not mandatory and is at the discretion of the forum. The second one
when the forum rules on UTP not through competition law, but through different rules
(contract law, “specific” rules…), the nature of which is questionable. The case
happens for instance in France, where there is a debate to decide whether “le droit des
pratiques restrictives” (art. L. 442-6 Commercial code notably) qualifies as lois de
police with regard to the definition set in art. 9§1 RRI88
. There is certainly a need for
clarification.
Secondly, the case where an asymmetry exists between the parties in the supply chain.
Regulation Rome I does not include any mechanism in order to protect professional
weaker parties against a choice of law imposed by a stronger party. The risk is for
instance that the chosen law might not provide sufficient protection of the weaker
party against UTP or unfair terms, because the stronger party deliberately intends to
avoid such protection. Normally, application of the above-mentioned lois de police of
the forum should provide some minimum protection. However, protection is then
dependent of the content of the forum’s law on UTP, which may significantly vary
from one Member State to another. Alternative solutions could be more relevant, such
as: 1) appreciating the consent given by the weaker party to the choice of law
provision according to the law of its residence, instead of the lex contractus, pursuant
to art. 10 §2 RRI89
; or 2) introducing in RRI a specific mechanism in order to protect
professional weaker parties in the choice of law (as there are such mechanisms for
consumers and workers)90; or 3) implementing harmonized EU’s lois de police on the
abusive exploitation of the right to choose the applicable law91
.
Regulation Rome II. Article 14 RRII allows parties to choose the law applicable to
non-contractual obligations, even when the damage has not occurred yet, if “all the
parties are pursuing a commercial activity”, which is the case in the supply chain. In
theory then, there might be a choice of law, and if so the chosen law should apply to
UTP between the parties. However, there are three factors of complication.
Two of these factors are common to the ones observed in RRI: 1) RRII reserves the
application of lois de police (art. 16): if the forum’s regulation on UTP qualifies as lois
88
S. Clavel, « De quelques solutions aux problématiques juridiques posées par l’application du droit de
la concurrence dans les réseaux transnationaux de distribution », Revue Lamy Droit des affaires, June
2013, Supplement n°83, p. 49-53, at p. 52 ; P. Mousseron, « L’article L. 442-6, 5° du code de
commerce : contournable ou pas ?, in Etudes Mercadal, éd. Lefebvre, 2002, p. 231 ; A. Malan, « Le
champ d’application dans l’espace des dispositions de la LME en matière de pratiques restrictives de
concurrence. – Quelques observations sur une position récente de la DGCCRF, Contrats,
concurrence, consommation, 2010, comme. 5, inf. 5) ; M.-E. Ancel, « L’article L. 442-6-1, 5° du
code de commerce en droit international privé », RJ com. 2009, p. 200 ; L. Idot, « L’empiètement du
droit de la concurrence sur le droit des contrats, Rev. droit des contrats, 2004, p. 882).
89 F. Cafaggi, S. Clavel, Interfirm networks across Europe ; a private international law perspective, in
some categories of UTPs listed in the Commission Green Paper (left column) and
selected UTPs covered by our survey, which will form the basis of our in-depth
analysis below.
As will be discussed in further detail below, the Table was adapted to include cases of
abuse of economic dependence. The latter is a type of conduct that, when available in
a given legal system, can normally be invoked to capture all those situations in which
a stronger party imposes unfair conditions to an economically dependent (and thus
weaker) party. This means that, in addition to retroactive contract changes, all the
selected UTPs that refer to conduct taking place within an existing commercial
relationship, such as all unfair terms transferring commercial risk on the weaker party,
or the unfair use of confidential information during the life of the contract, are
potentially covered by the rules on abuse of economic dependence. Accordingly, in the
97
One difference between our questionnaire and the definitions given in the Green Paper is in the notion
of post-contractual practices: while the Green Paper implicitly considers post-contractual as those
conducts that occur after the conclusion of the contract, and thus during the execution stage, we
adopt a different view, i.e. those conducts that occur after the contract has been executed, or the
commercial relationship has ended.
PAGE 101
following sections we will assume that Member States that have in place a rule on
economic dependence can implicitly cover all those selected UTPs.
Table 7 – Example of practices captured by our analysis, and types of UTPs in the Green Paper
Category in the Green Paper on
UTPs Selected practices for our in-depth analysis
Ambiguous contract terms Lack of clarity in contract offer
Lack of written contract Lack of written contract
Retroactive contract changes Abuse of economic dependence*
Unfair transfer of commercial risk Liability disclaimers
Unilateral modification clauses
Terms unreasonably imposing or shifting risks
Unfair use of information Unfair use of confidential information
Unfair use of confidential information after contract expiry
Unfair termination of a commercial
relationship Unfair breaking off of negotiation
Unfair contract termination
Refusal to negotiate
* Abuse of economic dependence can be invoked to tackle also other UTPs included in the Green Paper, such as i.a. the unfair transfer of commercial risk and the unfair use of information during the life of the contract.
3.2 Coverage of selected UTPs in the EU28
Table 8 below summarizes our findings for what concerns which UTPs are covered by
legislation or private regulation in the EU28, with an indication of which types of rules
are available. Colours are used to provide a visual representation of different degrees
of coverage, as well as the extent to which the rules in place effectively target the
conduct at hand. We have thus decided to mark in dark green UTPs directly addressed
by legislation; in light green UTPs implicitly addressed by legislation (through the
provisions on abuse of economic dependence); in dark blue food-specific legislation
addressing specific UTPs; in light blue UTPs implicitly addressed by food-specific
legislation (through the provisions on abuse of economic dependence); in grey private
regulatory schemes; and finally in white other pieces of legislation (mostly, civil code
provisions that have general application and are very difficult to rely on to address
UTPs. Both private regulation and “other” pieces of legislation are not counted in the
sum of legal rules in place per Member State (right end of the table) and per selected
UTP (bottom of the table)98.
The table leads to a number of very important findings:
The degree of coverage in the EU28 varies significantly: some countries cover a
large number of UTPs (Croatia, France, Italy and also – in the food sector –
Portugal, Spain and the UK), and as many as eight countries rely on general
provisions (e.g. civil law articles on contracts) or do not address UTPs in the retail
98
More detailed findings are available in the form of country-specific tables in Annexes 2 and 3 below.
The lower part of the table shows the number of laws for each UTP belonging to different types.
PAGE 102
chain at all (Belgium, Estonia, Denmark, Ireland, Luxembourg, The Netherlands,
Malta, Sweden). In the latter group, only two countries can at least rely on private
regulatory schemes (Estonia for the retail chain, Belgium only in the food sector).
The type of behaviour that is most regularly addressed by the EU28, although
with different instruments, is the unfair use of confidential information. As
many as 18 legal systems are able to capture this practice in the retail sector (at
least in principle, subject to our analysis of enforcement below). These include 10
Member States that rely on unfair competition rules to capture this practice
(including one, Greece, that we consider able to capture it as a consequence of the
rule on abuse of economic dependence contained in the unfair competition law);
and 8 Member States that use B2B or retail-specific laws. Five countries (Czech
Republic, Hungary, Italy, Spain and United Kingdom) have food-specific rules in
place that capture this UTP.
More generally, countries tend to cover UTPs related to the abuse of
economic dependence: due to the existence of rules on abuse of economic
dependence, including some retail-specific or even food-specific rules, UTPs such
as liability disclaimers, the imposition of terms that transfer commercial risk onto
the counter-party and unilateral modification clauses are potentially covered by
several Member States. Among these, legislation specific to the food sector is
slightly more widespread for two UTPs, “Unilateral modification clauses” and
“terms unreasonably imposing or shifting risks”.
There is very limited coverage of some selected UTPs, such as the lack of clarity
in the contract offer (only France directly covers it, plus Italy and the UK limited
to the food sector); the lack of written contract (only France covers it, plus the
Czech Republic, Hungary, Italy, Spain, the UK in the food sector); and the unfair
breaking off of negotiations (covered by Croatia only, and by Italy limited to the
food sector).
The most used instrument varies across individual UTPs: as shown in the lower
part of the graph (and marked in orange), B2B laws are mostly used for abuse of
13 Hungary Admin Body NCA + AB in food NCA + AB in food NCA + AB in food NCA + AB in food NCA + AB in food NCA 6 0 0 6
14 Ireland Court Court 0 0 0 0
15 Italy* NCA NCA Court + NCA in food Court+NCA in food Court+NCA in food Court+NCA in food Court+NCA in food Court + NCA in food NCA Court+NCA in food Court 0 0 10 0
22 Portugal Admin body Admin body Admin body Admin body Admin body Admin body Admin body 0 7 0 7
23 Romania NCA + AB in food NCA + AB in food NCA + AB in food NCA + AB in food NCA + AB in food NCA + AB in food 6 0 0 6
24 Slovakia Admin body Admin body Admin body Admin body Court Court Admin body 0 0 0 5
25 Slovenia Admin body Admin body Admin body 0 3 0 3
26 Spain Court Admin Body Court + AB in food Court+AB in food Court+AB in food Court+AB in food Court + AB in food Court + AB in food Court 0 0 0 7
27 Sweden 0 0 0 0
28 United Kingdom Admin Body Admin Body Admin Body Admin body Admin Body Admin Body Admin body Admin Body 0 0 0 8
* For Italy: Article 9 of the Law 192/98 on the abuse of economic dependence is enforced by courts. The NCA intervenes only when the abuse is also relevant from an antitrust perspective.
Legend Directly addressed by public legislation Court Ordinary Court
Implicitly addressed by public legislation Admin body or AB Administrative body
Directly addressed by food legislation NCA National Competition authority
Implicitly addressed by food legislation
Private regulation
RETAIL FOOD
PAGE 109
3.3.1 Features of administrative bodies in charge of enforcement:
ex officio investigations and confidential complaints
As already reported in the previous sections, one element that has become increasingly
important in addressing UTPs in the retail chain or its subsectors (namely, food) is the
availability of an administrative authority with strong enforcement powers, and in
particular the possibility to act ex officio and to receive confidential complaints. Table
10 shows that administrative bodies (NCAs and others) with strong enforcement
powers exist only in a subset of EU Member States. In particular:
As observed above, only 12 Member States can rely on an administrative
authority in the enforcement of UTPs in the retail chain (8 of which are
competition authorities). Of these, 9 can act ex officio (there are three competition
authorities that cannot act ex officio to address UTPs, in Austria, Cyprus and
Romania); and 8 can receive confidential complaints (in Austria Bulgaria, Portugal
and Romania confidential complaints are not possible).
In the food sector, 17 Member States have in place an administrative body
that can address UTPs. Of these, only two countries do not envisage ex officio
investigations for the case of UTPs (Austria and Cyprus); whereas in six countries
confidential complaints cannot be submitted to the authority (Austria, Bulgaria,
Italy, Portugal, Romania and Slovakia).
Table 10 – Enforcement bodies, ex officio investigations and confidential complaints
Country Enforcing Authority
RETAIL
Ex officio
investigations
Confidential
complaints
Enforcing Authority
FOOD
Ex officio
investigations
Confidential
complaints
Austria NCA No No NCA No No
Bulgaria NCA Yes No NCA Yes No
Croatia State Inspectorate Yes Yes State Inspectorate Yes Yes
Williamson O.E. (1985) The economic institutions of capitalism: Firms markets,
relational contracting. The Free Press, New York.
Williamson, O.E. (1975) Markets and hierarchies: Analysis and antitrust
implications. The Free Press, New York
Zabaleta, M (2002), La explotación de una situación de dependencia económica
como supuesto de competencia desleal (Marcial Pons, 2002).
PAGE 127
ANNEX I – NATIONAL REPORTS
PAGE 128
Name of legislation/private
regulation
Type of
legislation
Enforcing Authority Ex officio investigations confidential
complaints
Frequency of
application
1 Lack of clarity in contract offer2 Lack of written contract
Abuse of economic
dependence/bargaining power
Act against Unfair
Competition, Nr. 448/1984
UC NCA No* No Uncommon
Competition Act CL NCA No* No Uncommon
4 Liability disclaimers
5 Unilateral modification clauses6 Terms unreasonably imposing or
shifting risks7 Unfair use of confidential information Act against Unfair
Competition, Nr. 448/1984
UC NCA No* No Uncommon
8 Unfair use of confidential information
after contract expiry9 Unfair breaking off of negotiation
10 Unfair contract termination11 Refusal to negotiate Act against Unfair
Competition, Nr. 448/1984
UC NCA No* No Uncommon
AUSTRIA
3
*The Austrian competition authority does not have any direct ex officio opportunities for unfair competition conduct: however, it may file a claim for cease and desist.
I. General coverage of core unfair trading practices by different instruments
In Austria unfair trading practices (UTPs) are covered by:
the Competition Act (Art. 4(3)), which goes beyond the scope of EU competition law by addressing the abuse of economic
dependence;
the Act against Unfair Competition (UWG); and
the Act on local supply (“Nahversorgungs-Gesetz”), which prohibits a number of practices, including discrimination and demanding
payments or services without equivalent.
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 129
a. To what extent does competition law address UTPs beyond the scope of EU competition law (Articles 101 and 102 TFEU)?
The Cartel Act can tackle some UTPs through the prohibition of the abuse of economic dependence, available at Article 4(3), which
addresses also situations in which a non-dominant undertaking has a superior position on the market vis-à-vis its suppliers or customers,
in particular when the affected suppliers or customers are dependent on the maintenance of business relations with this company in
order to avoid very heavy financial losses. The Cartel Act explicitly incorporates the concept of economic dependence in its definition
of dominant position applying to both sides of the market (buyers and sellers). Under Article 4(3) of the Cartel Act a firm is regarded as
dominant when it has a superior position in the market in relation to its purchaser or supplier. Such position is considered to be present
in particular if these firms are dependent on the maintenance of business relations in order to avoid severe economic disadvantages.
Article 4(3) of the Cartel Act aims especially at protecting undertakings maintenance of business relations in a given sector depends on
the dominant undertaking. Recent cases include Case 16Ok5/09 decided on 3 June 2009, in which the plaintiff – a creamery and milk
producer – claimed against the defendant – the fourth biggest creamery in Austria – an abuse of its dominant position resolving from
economic dependency. The Austrian Cartel Act does not explicitly regulate the abuse of superior bargaining position. However, the
formulation in Article 4(3) allows dealing also with abuse of superior bargaining position in business-to-business relations. It follows
that the abuse of a superior bargaining position is part of the definition of a dominant position in Article 4 of the Austrian Cartel Act.
The Act on Local Supply is intended to safeguard competitive conditions and local supply for Austrian citizens. It mainly sets out
rules on commercial conduct aiming to avoid that powerful companies take advantages of their market positions against suppliers in
regard to objectively unjustified conditions. However, as the Act is rather limited to anti-competitive conducts and does not regulate
unfair practices per se, this regulation is considered of little practical relevance for our purposes.
b. Is there specific legislation which aims at targeting UTPs in vertical relationship?
The Act on Local Supply, as explained above, aims to avoid that powerful buyers take advantage of their market positions against
suppliers in regard to objectively unjustified conditions. In that sense, the Act is able to tackle abuse of bargaining power in the retail
supply chain. However, the Act is of little relevance for the purposes of our study, since it only prohibits anti-competitive conduct.
c. Is there specific sectoral legislation for retail or food targeting UTPs?
The Austrian legal system does not have any specific sectoral legislation on retail or food regarding to B2B UTPs. The Act on Local
Supply is a sectoral legislation: however, as explained above it does not directly address UTPs in the retail supply chain, unless these can
also be construed as anti-competitive behaviour.
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 130
d. Are there private/sectoral instruments specific to UTPs (food, retail, etc)
In Austria there is no private regulation addressing UTPs in the food or retail chain.
e. To which extent do other instruments address selected UTPs (unfair competition law, contract law, other)?
The Austrian Act against Unfair Competition regulates misleading or aggressive conduct between enterprises, both in horizontal and
vertical relationships. The Act belongs to the area of unfair competition tout court and implements into the Austrian legal system Directive
2005/29/EC on unfair commercial practices and Directive 2006/114/EC on misleading and comparative advertising. It is important to note
that in Austria Directive 2005/29/EC as well as the black list on misleading and aggressive practices annexed to it has been made
relevant to both B2C and B2B relations in order to avoid creating a divide within unfair competition law. The relevant rules dealing with
the B2B unfair trading practices are defined in Articles 1a and 2 of the Act and on the black list on misleading and aggressive practices
annexed to the regulation.
As a result, in Austria the following selected UTPs are covered:
Abuse of economic dependence (Competition law and unfair competition law);
Unfair use of confidential information and refusal to negotiate (unfair competition law).
In addition, it can be assumed that other UTPs, most notably those related to the unfair transfer of commercial risk (no. 4-6 in the table
above) can potentially be captured by the rule on abuse of economic dependence contained in the Competition law.
II. Enforcement of instruments addressing UTPs
a. Role of the competition authority (powers to enforce legislation addressing UTPs outside the scope of EU Competition law)?
The Competition Authority has the power to enforce both the Cartel Act and the Act against Unfair Competition. In enforcing the latter,
however, it does not have the possibility to launch ex officio investigations tout court, but it may file a claim for cease and desist.
According to Austrian competition law confidential complaints are only possible within the leniency program application, which refers
exclusively to cartels or similar anticompetitive conduct (Cartel Act). The Austrian Federal Competition Authority has powers to launch ex
officio investigations.
Infringements to the Act on Local Supply can be investigated by the Austrian Federal Competition Authority and enforced in the courts.
The Austrian Federal Competition Authority is a body charged with investigating and dealing with suspected or impending anti-
competitive practices and violations of fair competition.
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 131
b. To which extent do the other public authorities than competition authorities enforce legislation targeting UTPs (which
authorities, which legislation)?
The Act against Unfair Competition can be enforced by the Civil Court and the Criminal Court. Normally claims aims at obtaining a final
injunction ordering the defendant to cease and desist from the unfair competition conduct. A claim for damage compensation is also
possible.
c. Which role do other bodies than public authorities (sectoral bodies, mediation bodies, etc) play in enforcing instruments
addressing UTPs
In Austria there is no specific regulation on alternative dispute resolution schemes. Private dispute resolution is mainly promoted by the
trade associations. Consequently, in the case of an infringement of the Austrian Act against Unfair Competition, the affected parts can
submit the dispute to a private dispute resolution scheme other than arbitration or mediation promoted by trade associations or other private
authorities.
d. Does enforcement by relevant authorities cover confidential complaints and ex officio investigations?
The competition authority cannot act ex officio outside the scope of competition law. In enforcing the Unfair Competition Act it does not
have the possibility to launch ex officio investigations tout court, but it may file a claim for cease and desist.. It can collect confidential
complaints, but only for the purposes of the leniency program, and thus not in investigations on UTPs.
III. Recent developments
There is very little evidence that the Austrian Federal Competition Authority or other public authorities have recently looked or focused
their attention on UTPs in the retail and/or food sector. An investigation by the Federal Competition Authority into buyer power in the food
chain was carried out in 2007, revealing the Austrian grocery sector was highly concentrated; barriers to entry were high, (which leads to a
low number and limited expansion of new market entrants in the retail and wholesale business over the last years); and there is strong
evidence of buyer power, especially in sectors with private labels and without must-stock items. We have sent a translated version of the
third part of the questionnaire on the impacts of UTPs on the value chain has been sent to the Federal Competition Authority. However, the
Austrian Federal Competition Authority was not able to reply to the questions because of lack or any practical experience in the field.
Furthermore, no pending reform of the legislation currently addressing UTPs in Austria have been reported, nor the intention to introduce
new legislation or private regulation in the field.
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 132
Name of legislation/private
regulation
Type of
legislation
Enforcing Authority Ex officio investigations confidential
complaints
Frequency of
application
1 Lack of clarity in contract offer Code of conduct on the agro-
food sector
PR - FD none no No Uncommon
2 Lack of written contract Code of conduct on the agro-
food sector
PR - FD none no No Uncommon
3 Abuse of economic
dependence/bargaining power
4 Liability disclaimers5 Unilateral modification clauses Code of conduct on the agro-
food sector
PR - FD none no No Uncommon
6 Terms unreasonably imposing or
shifting risksCode of conduct on the agro-
food sector
PR - FD none no No Uncommon
7 Unfair use of confidential information
8 Unfair use of confidential information
after contract expiry
9 Unfair breaking off of negotiation10 Unfair contract termination
11 Refusal to negotiate
BELGIUM
I. General coverage of core unfair trading practices by different instruments
In Belgium general, non-sectoral laws potentially address some of the core unfair trading practices (UTPs) in B2B relations. These are:
Law of 6 April on Market Practices and Consumer Protection (unfair competition law);
Law of 2 August 2002 on Fight Against Late Payment on Commercial Transactions (specific B2B law addressing UTPs)
Law on the Protection of Economic Competition (national competition law).
However, these pieces of legislation do not contained targeted and explicit rules that address our selected UTPs. Eventually, the only
relevant set of rules in Belgium is a private regulatory scheme, i.e. the Agro-food Code of Conduct (2010).
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 133
a. To what extent does competition law addresses UTPs beyond the scope of the EU competition law (articles 101 and 102
TFEU)?
Belgian competition law is a faithful copy of European competition law.
b. Is there specific legislation which aims at targeting UTPs in vertical relationship?
The Law on Market Practices and Consumer Protection and the Law on Fight Against Payment Delays in Commercial
Transactions apply indistinctly to the relationships between direct competitors and to the relationships between market players operating
at different levels of the relevant market chain: but both do not specifically address any of the selected UTPs identified in our report.
c. Is there specific sectoral legislation for retail or food targeting UTPs?
Belgium does not have specific legislation regulating UTPs on the general retail or food chain.
d. Are there private/sectoral instruments specific to UTPs (food, retail, etc)?
The Code of conduct for fair relationship between suppliers and purchases in the agro-food chain (hereafter ‘the Code of conduct’),
signed by BEMEFA, the AGROFRONT and FEDIS (today called COMEOS) governs the relationships between farmers and their
purchasers and/or suppliers and is to be consider as a guide to the inter-professional agreements. The aim of the Code is to ensure balanced
relationships between suppliers and purchasers and to limit the exercise of bargaining power. The Code of Conduct does not define UTPs
but formulates recommendations with the aim to avoid them; in addition, it sets up a mediation system for conflict resolution. However, the
Code is drafted in general terms and addresses the following UTPs, as defined in the European Commission Green Paper on unfair trading
practices in the food and non-food supply chain: (i) ambiguous contract terms (clear contract terms and exchange of general information on
market trends), (ii) lack of written contract and (iii) unfair transfer of commercial risks (recommendation to the parties do not impose
unilateral changes of the contract conditions, to comply with the contractually agreed and do not impose payment delays).
e. To which extent does other instruments address selected UTPs (unfair competition law, contract law, other)?
The Law on Market Practices and Consumer Protection is a general law primarily focused on B2C unfair commercial practices,
transposing Directive 2005/29/EC. Neither the general provisions nor the black list on unfair commercial practices were made applicable to
B2B relations. However, the Law includes some rules addressing UTPs in B2B relations, mainly Articles 96 and 97 on misleading and
comparative advertising, implementing Directive 2006/114/EC, and a general provision on forbidden acts that are contrary to fair trading
practices (article 95). Although the Law does not contain a definition of UTPs or a black/grey list of unfair trading practices applicable to
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 134
B2B relations, case law shows that courts take into account the definition of unfair commercial practices applicable to B2C relations when
assessing the unfairness of a practice in B2B relations. The law has been applied to the following practices: misleading advertising,
reputation damage (denigration), free-riding the commercial efforts of a business, enticing away clients or personnel and certain sales and
marketing methods, including certain online marketing methods, such as electronic ‘spread the word’ methods.
The Law on the Fight against Late Payments on Commercial Transactions aims to protect the weaker party by ensuring timely
payments in commercial relations and ultimately to avoid cash-flow problems, which can lead to defaults and bankruptcies. It harmonises
the periods of payment in B2B and prohibits the inclusion of abusive payment terms in the commercial contracts.
For what concerns our selected UTPs, Belgium only covers the lack of a written contract and unclear contract terms, unilateral modification
clauses and terms unreasonably imposing or shifting risks through private regulation in the agri-food sector.
II. Enforcement of instruments addressing UTPs
a. Role of the competition authority (powers to enforce legislation addressing UTPs outside the scope of EU competition law)?
The Belgian competition law, as mentioned above, does not addresses UTPs beyond the scope of the EU competition law.
b. To which extent do other public authorities than competition authorities enforce legislation targeting UTPs (which authorities,
which legislation)?
The Law on Market Practices and Consumer Protection is enforced by the Commercial Court. The President of the Commercial Court
can impose injunctions. Actions should be brought before the President of the Commercial Court in the form of the request for interim
measures, but lead to a decision of substance. Periodic penalty payments (“astreintes”) are also possible under the general rules of the
Judiciary Code. Moreover, the court may also order the publication of the ruling.
The Ministry of Economic Affairs is only competent to investigate unfair commercial practices in B2C punished by criminal sanctions
under articles 124 to 127. It does not have powers investigate unfair trading practices in B2B relations. However, when a unfair trading
practice constitute at same time an unfair commercial practice, the interested parties can to try to bring the matter to the attention of the
ministry.
An undertaking can also require to the President of Commercial Court to order an injunction against a commercial partner attempting to
impose an abusive payment clause in accordance with the Law on the Fight against Late Payments in Commercial Transactions.
c. Which role does other bodies than public authorities (sectoral bodies, mediation bodies, etc) play in enforcing instruments
addressing UTPs?
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 135
The Agro-food Code of Conduct can be enforced though mediation, it has been increasingly used. Although, the code foreseen a ‘comply
explain’ mechanism the rules of the Code are not completed by sanctions, making its enforcement voluntary.
The parties in the case of a breach to the Law on Market Practices and Consumer Protection, can also submit the case to an arbitration
or mediation body, even if it is not foreseen by this law.
d. Does enforcement by relevant authorities cover confidential complaints and ex officio investigations?
Neither ex officio investigations, nor confidential complaints are possible in Belgium for selected UTPs.
III. Recent developments
Three recent studies were carried out by the Belgium authorities on the price of beef meat chain, in the pork meat chain and in the dairy
chain. These studies concluded that there was no major imbalance between the parties concerned.
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 136
Name of legislation/private
regulation
Type of
legislation
Enforcing Authority Ex officio investigations confidential
complaints
Frequency of
application
1 Lack of clarity in contract offer2 Lack of written contract
EAD. The above retailers were accused of collusion in coordinating promotions and setting conditions in the vertical contracts for
delivering food products: in particular, the CPC found the presence of certain clauses, primarily concerning the pricing of the delivered
goods, which created obligations and restrictions for suppliers in their vertical relations with each of the retailers. Their simultaneous and
parallel presence in the contracts separately signed by the retail chains with the same suppliers led to a justified concern by the CPC that the
retail chains could deliberately coordinate their conduct even without an explicit agreement or direct contacts with each other.
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 140
Name of legislation/private
regulation
Type of
legislation
Enforcing Authority Ex officio investigations confidential
complaints
Frequency of
application
1 Lack of clarity in contract offer2 Lack of written contract Code of ethics in direct sale PR Court of Honour of Croatian
Chamber of Commerce
no no Uncommon
Law on Trade, Nr. 87/08,
96/08, 116/08, 76/09, 114/11,
68/13
B2B State Inspectorate, Commercial
Court, Misdemeanour Court
Yes (state inspectorate and
Misdemeanour Court); No
(Commercial Court)
Yes Uncommon
Code of ethics in direct sale PR Court of Honour of Croatian
Chamber of Commerce
no no Uncommon
Code of business ethics PR Court of Honour of Croatian
Chamber of Commerce
no no Uncommon
4 Liability disclaimers5 Unilateral modification clauses6 Terms unreasonably imposing or
shifting risksLaw on Trade, Nr. 87/08,
96/08, 116/08, 76/09, 114/11,
68/13
B2B State Inspectorate, Commercial
Court, Misdemeanour Court
Yes (state inspectorate and
Misdemeanour Court); No
(Commercial Court)
Yes Uncommon
Code of ethics in direct sale PR Court of Honour of Croatian
Chamber of Commerce
no no Uncommon
Code of business ethics PR Court of Honour of Croatian
Chamber of Commerce
no no Uncommon
8 Unfair use of confidential information
after contract expiry
Law on Trade, Nr. 87/08,
96/08, 116/08, 76/09, 114/11,
68/13
B2B State Inspectorate Yes (state inspectorate and
Misdemeanour Court); No
(Commercial Court)
Yes Uncommon
9 Unfair breaking off of negotiation Law on Trade, Nr. 87/08,
96/08, 116/08, 76/09, 114/11,
68/13
B2B State Inspectorate Yes (state inspectorate and
Misdemeanour Court); No
(Commercial Court)
Yes Uncommon
10 Unfair contract termination Law on Trade, Nr. 87/08,
96/08, 116/08, 76/09, 114/11,
68/13
B2B State Inspectorate Yes (state inspectorate and
Misdemeanour Court); No
(Commercial Court)
Yes Uncommon
11 Refusal to negotiate Law on Trade, Nr. 87/08,
96/08, 116/08, 76/09, 114/11,
68/13
B2B State Inspectorate Yes (state inspectorate and
Misdemeanour Court); No
(Commercial Court)
Yes Uncommon
CROATIA
3 Abuse of economic
dependence/bargaining power
7 Unfair use of confidential information
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 141
I. General coverage of core unfair trading practices by different instruments
In Croatia there is national legislation as well as private regulation dealing with unfair trading practices (UTPs). The existing legislation on
UTPs in B2B relations are part of the disciplinary areas of unfair competition law, specific B2B law addressing selected UTPs and general
contract law. The public legislation on UTPs are contained in the following acts: (i) Law on Trade ; (ii) Law on Obligatory Relations ;
(iii) Law on Financing and Pre-Bankruptcy Settlement ; (iv) Law on Prohibited Advertising; and (v) the Competition Act.
a. To what extent does competition law address UTPs beyond the scope of EU competition law (articles 101 and 102 TFEU)?
The Croatian Competition Act does not go beyond the scope of Article 102 TFEU by e.g. prohibiting the abuse of economic dependence
or the abuse of special market power. The competent national competition authority can only act if competition in the relevant market is
restricted or threatened by a dominant undertaking. As a consequence, the Competition Law is considered insufficient to guarantee the
protection of the weaker contractual party in B2B relationships.
b. Is there specific legislation which aims at targeting UTPs in vertical relationships?
The Croatian legislation addressing UTPs apply to all B2B relations: relations between competitors (horizontal relations) and relations
between market players operating in different stages of the chain (vertical relations).
c. Is there specific sectoral legislation or for retail or food targeting UTPs?
Croatia does not have specific legislation on UTPs for retail or food sector.
d. Are there private/sectoral instruments specific to UTPs (food, retail, etc)
In Croatia there are four private instruments dealing UTPs: (i) Code of Business Ethics ; (ii) Special Practices in Retail Sale; (iii) Code
of Ethics in Direct Sales; and (iv) Code of Ethics in Advertising.
Of these, the Special Practices in Retail Sale adopted by the Croatian Chamber of Commerce is the one that most specifically addresses
UTPs in the economic sectors relevant for is study (retail/food), and is directly mentioned in national legislation. Unlike the other private
regulation in place, national legislation provides that these usages and practices are applicable by default between the contracting parties
unless the parties explicitly exclude their application in a particular relationship (Article 12 of the Law on Obligatory Relations). These
Practices do not define UTPs, but contains a list of practices that are considered as fair and in good faith and articles 14 and 17 somewhat
prescribe what represents an UTP. This private regulation addresses in special to unfair use of confidential information.
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 142
e. To which extent does other instruments address selected UTPs (unfair competition law, contract law, other)?
The most relevant piece of legislation dealing with unfair business trading in Croatia is the Law on Trade. The main objective of this law
is to protect the competitors and other market players and its provisions apply only to B2B relations. It defines and prohibits UTPs and
enumerates a number of conducts that are specially considered as unfair trading practices (the black list of UTPs.). The rule addresses the
unfair use of information and unfair termination of a commercial relationship. Moreover, it is expected that in the future the Law on Trade
will include some more UTPs connected to the abuse of economic dependence and the abuse of special market power.
The Law on Obligatory Relations is a general contract law, which applies to both B2C and B2B relations. It does not deal directly with
UTPs, but provides a general reference to the principle of good faith and fair dealing as a general rule for establishment of the obligatory
relations and as regarding to contract terms definitions.
The Law on Prohibited Advertising, implementing Directive 2006/114/EC on misleading and comparative advertising, applies only to
B2B relations and prohibits deceptive advertising and prescribes the conditions in which comparative advertising is allowed. The rule
addresses to unfair use of information.
Another law addressing UTPs is the Law on Financing and Pre-bankruptcy Settlement which inter alia enacts the Late Payments
Directive 2011/7/EU. It limits the contractual freedom by state a period for payment of the invoices in B2B transactions. Moreover, it
contains a black list of unfair contractual terms.
Overall, Croatian legislation covers six of our eleven selected “core” UTPs, as shown in the table above. The lack of written information is
only mentioned in the code of ethics on direct sale.
II. Enforcement of instruments addressing UTPs
a. Role of the competition authority (powers to enforce legislation addressing UTPs outside the scope of EU competition law)
The Croatian competition law does not go beyond the scope of EU competition law as explained above.
b. To which extent do other public authorities than competition authorities enforce legislation targeting UTPs (which authorities,
which legislation)?
As far as enforcement is concerned, the Law of Trade provides several different remedies/enforcement mechanisms. The State
Inspectorate and other inspectorates of the Ministry of Finance are responsible for conduct inspections on the implementation of this law
and the regulations made pursuant to this law (Article 66 paragraph 2 of the Law on Trade). The State Inspectorate can initiate the
procedure ex officio, exceptionally, upon request, when it is prescribed by law. However, the law nothing says about the possibility of
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 143
receiving confidential complaints: the inspector should keep as professional secret the identity of the complainant. The identity can only be
disclosed to the courts and government bodies upon their reasoned written request during judicial and administrative procedures.
The most common and effective mode of enforcement of this law is an injunction that can be issued by the State Inspectorate in the case of
unfair implementation of a contractual term. These injunctions do not have binding effects erga omnes. Secondly, the Commercial Court
can award damages and can also declare null or void an unfair contract term, but only in connection with the application of Law on
Obligatory Relations (article 322) as it foresees the nullity of contractual provisions that are contrary to cogent law. The action for
damages can be set by the damage trader or chamber or interest association of traders in representation of its members (Article 65 of the
Law on Trade). Furthermore, the Misdemeanor Court can impose monetary penalties.
The Law on Obligatory relations can be enforced via civil court, arbitration or mediation. The Civil Court can order an injunction, award
damages, declare restitution and/or declare an unfair contract term null. The declaration of nullity is a pre-requisite for damages.
In case of a breach of the Law on Prohibited Advertising the legal entities that have a legitimate interest of collective protection of traders
from misleading and prohibit advertising, are authorized to file a lawsuit to require injunctions. These injunctions have erga omnes effects
and the judgement can be published. The Law on Prohibited Advertising does not provided for compensation of damages. However, is
always possible to file a lawsuit for damages in the civil court in accordance with the general civil provisions.
The civil courts are competent to enforce the Law on Financing and Pre-bankruptcy Settlement. In the case of unfair contractual terms
the court can declare them null or void. Moreover, in the case of unfair contractual terms in standardised contracts the chambers,
associations or other legal entities entitled by law to protect the collective interests of creditors can file lawsuit asking for an injunction to
end the use of such terms. Those injunctions have erga omnes effects. The Misdemeanour Court can also impose monetary penalties to
those business that use unfair contractual terms. The supervision of the fulfilment of financial obligations for business and persons of
public law is conducted by the Department of Financial Management Audit and Control within the Ministry of Finance. The Department
can act ex officio. Confidential complaints are not possible, but the identity of the complaint should be kept as professional secret and only
can be disclosure to the court and government agents under their written request in the ambit of judicial or administrative procedures.
c. Which role does other bodies than public authorities (sectoral bodies, mediation bodies, etc) play in enforcing instruments
addressing UTPs?
In the case of a breach of the Law on Trade or the Law on Obligatory Relations the parties can agree to settle their disputes to an
arbitration or mediation body. The most commonly used arbitration body is the Permanent Court of Arbitration of Zagreb under the
auspices of the Croatian Chamber of Commerce. It can conduct domestic and international cases. The arbitral decision as the same power
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 144
than a judicial decision, which means that it only can be challenged on procedural issues. Several panels of mediation have been created in
the last years by chambers and other associations. However, they their decisions are not binding.
The initiation of a lawsuit for a breach of the Law on Prohibited Advertising does not preclude the possibility to enforce the law though
voluntary control mechanisms by independent organisations nor the possibility of the entities competent to represent the interest of the
traders lodge an appropriate action before an independent organisation. This means that, the enforcement mechanism provided by the Code
of Ethics in Advertising before the Arbitration Commission of the Marketing Association within the Chamber of Commerce can also be
used.
All the four private schemes in place in Croatia can be enforced by the Court of Honour of the Chamber of Commerce. The proceeding
before the Court of Honour includes a prior conciliation attempt for the parties. In the cases here a settlement could not be achieved in the
mediation process, the Court can issue a warning, private or public and publish it on the Assembly of the Chamber or in the press and the
web pages of the Chamber. In the case of a violation of the Code of Ethics in Advertising before the Court of Honour intervention the case
is place before an Arbitration Commission which can order an injunction. If the business does not obey to the injunction imposed by the
Arbitration Commission, the case is report to the Court of Honour.
d. Does enforcement by relevant authorities cover confidential complaints and ex officio investigations?
Regarding confidential complaints possible under mentioned legislation and private regulation, the Law on Trade (Article 66 paragraph 2)
states that inspection of the implementation of that Law and the regulations made pursuant to the Law is conducted by the State
Inspectorate and other inspectorates and Ministry of Finance – Custom Administration, pursuant to the authorities vested in them by special
laws. Confidential complaints are not expressly introduced by the law, but the Law on State Directorate provides that, aside from acting ex-
officio, inspectorate can take into consideration also complaint of unofficial persons.
Confidential complaints are not specifically foreseen, but the Law states that the identity of the person submitting a complaint should be
kept as a professional secret by an inspector and only disclosed to certain persons under special conditions. This led us to conclude that
confidential complaints are possible in Croatia.
III. Recent developments
At present there are no pending reforms in course with relevance for UTPs. However, as already mentioned it is expected that in the future
the Law on Trade will include some more UTPs connected to the abuse of economic dependence and the abuse of special market power.
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 145
Name of legislation/private
regulation
Type of
legislation
Enforcing Authority Ex officio investigations confidential
complaints
Frequency of
application
1 Lack of clarity in contract offer
2 Lack of written contract
3 Abuse of economic
dependence/bargaining power
Protection of Competition
Act, Nr. 13(I)2008
CL (B2B) NCA No Yes Uncommon
4 Liability disclaimers
5 Unilateral modification clauses6 Terms unreasonably imposing or
shifting risks
7 Unfair use of confidential information
8 Unfair use of confidential information
after contract expiry9 Unfair breaking off of negotiation
10 Unfair contract termination
11 Refusal to negotiate
CYPRUS
I. General coverage of core unfair trading practices by different instruments
a. To what extent does competition law address UTPs beyond the scope of EU competition law (art 101 and 102 TFEU)?
Cyprus addresses UTPs mostly through its Protection of Competition Act (Law 13(I)/2008), which covers all sectors of the economy. It
constitutes the main legislative instrument that provides for the control and restriction of partnerships and undertakings hindering
competition as well as for the protection of competition. This Act relates to unfair trading horizontal and/or vertical agreements, abuse of
dominance and, notably, abuse of economic dependence. More precisely, article 6(2) prohibits the abusive exploitation of a relationship of
economic dependence. As evidenced by the wording of Article 6(2) of the Law, the following stakeholders are intended to be protected:
any undertaking which has the capacity of a customer, supplier, producer, representative, distributor or business partner. Also, three
elements must be proved in order for Article 6(2) of the Competition Law to be applicable: i) a relationship of economic dependence; ii) an
abuse of such a relationship by the dominant party in the relationship; iii) and the absence of an equivalent alternative solution to which the
abused may resort to. The competition authority has applied the section on the prohibition of an abusive exploitation of a relationship of
economic dependence by a dominant undertaking only in a handful of cases over a period of 21 years. There is no case where the
competition authority has examined ex officio an infringement of the relevant section, contrary to the ex officio investigations which it has
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 146
initiated over the years against concerted practices and abuses of a dominant position. We can assume that this potentially (and implicitly)
covers also instances of unfair transfer of commercial risk and the unfair use of confidential information during the contractual relationship.
b. Is there specific legislation which aims at targeting UTPs in vertical relationships?
Apart from the rule on economic dependence contained in the PCA, there are no specific pieces of legislation targeting and defining UTPs
in vertical relationships. However, the domestic legislation transposing Directive 2006/114 on misleading and deceptive marketing
practices is the “Control of Misleading and Comparative Advertising Act” (Law 92(I)/2000). It applies to both B2C and B2B relations
but it does not distinguishes between large and small or micro enterprises, since the latter encompasses all kinds of advertisements in the
context of business operation or industrial practises, irrespective of their operational size and without making any distinction (see Article
2). Also, this act does not target any of our selected UTPs.
c. Is there specific sectoral legislation or for retail or food targeting UTPs?
No, there are no specific sectoral legislations.
d. Are there private/sectoral instruments specific to UTPs (food, retail etc).
No
e. To which extent do other instruments address selected UTPs (unfair competition law, contract law, other)?
Cypriot legislation tackles the issue of abuse of economic dependence, which is one of our “core” UTPs with possible broad, implicit
application to other UTPs (e.g. unilateral modification clauses, liability disclaimers, unfair terms shifting commercial risk on the counter-
party, unfair use of confidential information during the contractual relationship).
Enforcement of instruments addressing UTPs
a. Role of the competition authority (powers to enforce legislation addressing UTPs outside the scope of EU Competition law)?
In the Protection of Competition Act of 2008, the mode of enforcement is administrative and the enforcement body is the Commission for
Protection of Competition (CPC) which constitutes the Competition Authority of the Republic and applies administrative, civil and
criminal law. This dispute resolution system is mandatory before accessing the judicial system
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 147
b. Does enforcement by Competition Authority cover confidential complaints and ex officio investigations?
Confidential complaints are possible under all examined laws and especially under the Protection of Competition Act of 2008 (Law
13(I)/2008). These complaints may regard specific potential violations only and may be filed by (representatives and associations of)
consumers, by consumers and/or by businesses or associations of businesses. The complaints shall be directed to the Commission for
Protection of Competition (CPC). However representatives and associations of consumers or associations of businesses rarely remain
anonymous. The Commission for Protection of Competition has large power to launch ex officio investigations, but only in its role as
enforcer of competition rules, not on abuse of economic dependence.
c. To which extent do other public authorities than competition authorities enforce legislation targeting UTPs (which authorities,
which legislation)?
No other authority targets selected UTPs.
d. Does enforcement by relevant authorities cover confidential complaints and ex officio investigations?
n.a.
e. Which role do other bodies than public authorities (sectoral bodies, mediation bodies etc) play in enforcing instruments
addressing UTPs?
n.a.
f. Does enforcement by relevant authorities cover confidential complaints and ex officio investigations?
In Cyprus, the competition authority has large power to collect confidential complaints but does not act ex officio on issues related to abuse
of economic dependence.
II. Recent developments
n.a.
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 148
Name of legislation/private
regulation
Type of
legislation
Enforcing Authority Ex officio investigations confidential
complaints
Frequency of
application
1 Lack of clarity in contract offer2 Lack of written contract Act Nr. 395/2009 Coll. on
Significant Market Power in
the Sale of Agricultural and
Food Products and Abuse
thereof
FD NCA yes yes non-existent
Act No. 89/2012 Coll. The
Civil Code
O courts no no non-existent
Act Nr. 395/2009 Coll. on
Significant Market Power in
the Sale of Agricultural and
Food Products and Abuse
thereof
FD NCA yes yes non-existent
4 Liability disclaimers Act No. 513/1991 Coll.
Commercial Code
O courts no no non-existent
5 Unilateral modification clauses Act Nr. 395/2009 Coll. on
Significant Market Power in
the Sale of Agricultural and
Food Products and Abuse
thereof
FD NCA yes yes non-existent
6 Terms unreasonably imposing or
shifting risks
Act Nr. 395/2009 Coll. on
Significant Market Power in
the Sale of Agricultural and
Food Products and Abuse
thereof
FD NCA yes yes non-existent
Act No. 513/1991 Coll.
Commercial Code
O courts no no non-existent
Act No. 89/2012 Coll. The
Civil Code
O courts no no non-existent
8 Unfair use of confidential information
after contract expiry9 Unfair breaking off of negotiation Act No. 89/2012 Coll. The
Civil Code
O courts no no non-existent
10 Unfair contract termination Act Nr. 395/2009 Coll. on
Significant Market Power in
the Sale of Agricultural and
Food Products and Abuse
thereof
FD NCA yes yes non-existent
11 Refusal to negotiate
CZECH REPUBLIC
3 Abuse of economic
dependence/bargaining power
7 Unfair use of confidential information
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 149
I. General coverage of core unfair trading practices by different instruments
The Czech Republic legislation dealing with unfair trading practices (UTPs) belongs to the area of unfair competition law and general tort
law. The major relevance for the assessment of UTPs are the Commercial Code,100 the Civil Code101(general tort law), the Act on
Protection of Competition102 and the Act on Significant Market Power in the Sale of Agricultural and Food Products and abuse
thereof (the SMP Act).103 Private regulation with relevance to addressing selected UTPs, mainly in retail or food chain, is absent.
a. To what extent does competition law addresses UTPs beyond the scope of EU competition law (articles 101 and 102 TFEU)?
The Act on Protection of Competition does not directly deal with the unfairness of trading practices. Section 11 of the Act prohibits the
abuse of dominant position in order to detriment other competitors or consumers, mirroring the typical EU Competition law situations and,
therefore, of limited use when countering UTPs by ‘non-dominant’ market players. In the last years, there was a tendency to enlarge the
scope of the national competition law rules towards the abuse of economic dependence. Indeed, the draft proposals for a revised
competition act, from 2001 and 2007, included the definition of economic dependence and the prohibition of the abuse of economic with a
non-exhaustive list of the most relevant and frequent types of abuse of economic dependence. However, the proposed changes never
entered into force, and instead led to the adoption of the Act on Significant Market Power in the Sale of agricultural and Food
Products and Abuse thereof (SMP Act).104
b. Is there specific legislation which aims at targeting UTPs in the vertical relationships?
The SMP Act is a specific B2B law, regulating abuse of market power in the food and agricultural sector. It aims to prevent an abuse of
significant market power by buyers, mainly retail supply chain stores in food and agricultural sector and to protect their suppliers, usually
small and medium sized enterprises. The concept of SMP is defined as a relation between a buyer and a supplier in which, as a result of the
situation in the market, the supplier becomes dependent on the buyer with regard to a possibility to supply own goods to consumers, and in
which the buyer may impose unilaterally beneficial trade conditions on the supplier. There is no reference to any significant market power
100
Act No. 513/1991 Coll. Commercial Code, Sec. 44-55.
101 Act No. 40/1964 Coll. Civil Code.
102 Act No. 143/2001 Coll. On the Protection of Competition and Amendment to certain acts.
103 Act. No. 395/2009 Coll. on Significant Market Power in the Sale of Agricultural and Food Products and Abuse of thereof.
104 ČERNÝ, M., The Significant Market Power – a manifestation of weakness of Czech private law In: Private Law on the road. Plzeň: AleŠ Čeňĕk, 2010, p. 57-71.
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 150
of suppliers. The market power is assessed by the structure of the market, barriers of the entrance into the market, certain market share and
the financial power of the buyers. A significant market power is presumed when the net turnover of a buyer exceeds 5 billion CZK. The
concept of economic dependence per se is not explicitly defined. The annex of the SMP Act contains the provisions of the contract
conditions specified between supplier and buyer and prohibited practices in supplier-buyer relations. Annex 5 states a minimum
termination period for supplier relationship if notice is given by the retailer. The Act addresses in particular UTPs related to unfair
termination of a commercial relationship and unfair transfer of the commercial risk.
c. Is there specific sectoral legislation or for retail or food targeting UTPs?
The SMP Act is a B2B law specifically adopted for the food sector.
d. Are there private/sectoral instruments specific to UTPs (food, retail, etc)?
Private regulation is not common in the Czech Republic. The Code of Advertisement (2009) issued by the Council of Advertisement and
the Code of Ethics of the Economic Chamber of the Czech Republic are not considered to be relevant in addressing selected UTPs as they
are not focused on B2B practice and the latter only reflects the already existent legal obligations to refrain from engaging in unfair
competition and act in an unfair way. Moreover, there are no specific instruments for the enforcement of these codes.
e. To which extent does other instruments address selected UTPs (unfair competition law, contract law, other)?
Provisions addressing UTPs are inserted in the Commercial Code (unfair competition law)105 and in the Civil Code (tort law).
The Commercial Code comprises two main sets of rules relating to UTPs: (i) the regulation of unfair competition, which includes both a
general provision prohibiting unfair competition and a grey list of activities considered as unfair competition; and (ii) a general provision
on fair dealing – fair commercial practice. Under section 265 of the Commercial Code any behaviour (‘exercise of right’) that violates the
principle of fair dealing shall be deprived of legal protection. The norm is mostly used by considering the effects of a certain contractual
terms, but its broad wording enables to apply the provision to conducts beyond the contract and its content. Besides that the Code includes
a significant number of other particular provisions relating to contractual obligations that may have an impact on specific UTPs.
105 Although the Commercial Code primarily focuses on commercial B2B transactions it also covers some B2C transactions, as according to section 261 of the Code the
provisions of the Code apply to certain contracts irrespectively of the nature of the parties. Moreover, parties to a contract may opt-in into the Commercial Code
(section 262 of the Commercial Code).
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 151
The Civil Code comprises only limited tools to protect market players against UTPs, like the prohibition of dealing contrary to good morals
which is sanctioned with invalidity (section 39 of the Civil Code) and has also tort law consequences (section 24 of the Civil Code).
Overall, in the Czech Republic the following selected UTPs are covered by legislation: abuse of economic dependence (in the food sector
only), liability disclaimers, unfair use of confidential information and unfair breaking off of negotiation. Through the provision of abuse of
economic dependence (which, it must be recalled, only applies in the food sector and in case of suppliers dependent on buyers), it is
possible to infer that also the unfair transfer of commercial risk is potentially covered in the Czech Republic limited to the food sector.
II. Enforcement of instruments addressing UTPs
a. Role of the competition authority (powers to enforce legislation addressing UTPs outside the scope of EU competition law)
The SMP Act is enforced administratively by the Office for the Protection of Competition. However, the parties to a contract may reach for
private enforcement as well. The SMP Act is stricter than EU competition law since it prohibits the abuse of economic dependence in the
agro-food supply chain.
In controlling the implementation and enforcement of the SMP the Office can conduct ex officio proceedings. Confidential complaints are
possible and should be addressed to the Office. If the Office finds that significant market power has been abused, it shall state this fact in a
decision and prohibits such behavior for the future. In the case of a breach of the SMP the Office can also impose fines. The parties can
appeal from the Office’s second instance decisions to the administrative court.
b. To which extent do other public authorities than competition authorities enforce legislation targeting UTPs (which
authorities, which legislation)?
The provisions of the Commercial Code and of the Civil Code can be enforced by the competent civil court or by arbitration, mediation or
other alternative dispute resolution schemes. The court can impose the following remedies: (i) nullity of the act, including the nullity of a
contract term (Civil Code) or depravation of legal protection (Commercial Code), (ii) damages, (iii) to restore the previous state of things,
(iv) to hand out unjustified enrichment, (v) compensation of non-economic damages and (vi) injunctions.
The associations representing the interests of the traders can also under the Commercial Code (section 54 subsection 1) bring injunction
action in the court. This action does not have erga omnes effects.
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 152
c. Which role does other bodies than public authorities (sectoral bodies, mediation bodies, etc) play in enforcing instruments
addressing UTPs?
Parties can agree to settle their disputes by mediation, arbitration or other alternative dispute mechanism. Normally the parties tend to use
arbitration. Other ADR schemes are almost not used in Czech Republic. The most active arbitration court is the Arbitration Court attached
to the Czech Chamber of Commerce and the Agricultural Chamber of the Czech Republic. If the parties reach an agreement the arbitration
court issues a settlement.
d. Does enforcement by relevant authorities cover confidential complaints and ex officio investigations?
In the Czech Republic, the the Office for the Protection of Competition has powers to act ex officio and to collect confidential complaints.
III. Recent developments
The SMP Act was not very well accepted by the doctrine, nor its application has proven to be successful as no final decision based on the
Act has been adopted until now. Consequently, the Office for Protection of Competition launched a public consultation regarding to the Act
and the former government discussed the possibility to repeal the Act, so far without any outcome.
In January 2014 a new Civil Code will come into force. After the entry of this law it is expected that the regulatory frame addressing UTPs
in Czech Republic will be able to tackle more efficiently unfair practices. The New Civil Code will not only replace the current Civil Code,
but also comprise provisions now included in the Commercial Code. The later will be replaced by the Act on Business Corporations106
regulating only the Corporate Law. Almost all aspects of private law relations, including the B2B obligations will be covered by the new
Civil Code. In contrast with the current Civil Code the new one comprises more specific protective rules, by not only prohibits the act
against the good morals, but also providing complex criteria for the assessment of the unfairness (fairness test). Apart from regulating
unfair advertisement and other situations of unfair competition, the new Civil Code introduces the prohibition of abuse of economic
dependence. The code also introduces some provisions specially aimed to protect small and medium enterprises. It regulates both the
behaviour itself and the contractual terms, including a general protection against standard terms beyond the B2C relations (which are
regulated in special sections).
106 Act No 90/2012 Coll. on Business Corporations.
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 153
Name of legislation/private
regulation
Type of
legislation
Enforcing Authority Ex officio investigations confidential
complaints
Frequency of
application
1 Lack of clarity in contract offer
2 Lack of written contract
3 Abuse of economic
dependence/bargaining power
4 Liability disclaimers
5 Unilateral modification clauses6 Terms unreasonably imposing or
shifting risks
7 Unfair use of confidential information
8 Unfair use of confidential information
after contract expiry9 Unfair breaking off of negotiation
10 Unfair contract termination
11 Refusal to negotiate
DENMARK
I. General coverage of core unfair trading practices by different instruments
In Denmark there is no specific regulatory framework of practices addressing unfair trading practices (UTPs) in B2B relations. Unfair
trading practices are tackled, however, to some extent by the Danish Marketing Practices Act107 (unfair competition law) and the Danish
Competition Act108 (national competition law). The Danish Contract Act109 does not specifically regulate UTPs in B2B relations.
However, the general clause 36 regulates agreements that are ‘unreasonable or contrary to practices of fair conduct’. This general clause is
part of the regulatory framework of Danish law covering UTPs.
a. To what extent does competition law address UTPs beyond the scope of EU competition law (articles 101 and 102 TFEU)?
The Danish Competition Act does not go beyond the scope of EU competition law.
107
The Danish Marketing Practices Act, Consolidation Act No 58 of 20 January 2012.
108 The Danish Competition Act, Consolidation Act No. 700 of 18 June 2013.
109 The Danish Contract Act, Consolidation Act No. 781 of 26 August 1996.
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 154
b. Is there specific legislation which aims at targeting UTPs in vertical relationships?
No.
c. Is there specific sectoral legislation or for retail or food targeting UTPs?
No.
d. Are there private/sectoral instruments specific to UTPs (food, retail, etc)?
No.
e. To which extent do other instruments address selected UTPs (unfair competition law, contract law, other)?
The Danish Marketing Practices Act establishes minimum standards for corporate behaviour in the market. Directive 2005/29/EC on
unfair commercial practices in B2C relations was implemented in this act and the black-list of unfair commercial practices of the directive
was implemented by the Executive Order No 1084/07. However, the provisions implementing the directive were not extended to B2B
relations, but the general clause of section 1(1) of the Marketing Practices Act that already covered B2C and B2B relations before the act
was amended to transpose the Directive, is still be applicable to both relations. This clause states that traders shall exercise good marketing
practice with reference to consumers, other traders and public interest. However, the Act does not contain a definition or a list of ‘fair
marketing practices’ in B2B relations. The case law has considered that product imitations, refusal to supply, promotional use of other
traders image or name, sales incentives, violation of the duty of loyalty and general adverse, harmful conducts (e.g. sale to competitors
products at lower price than the dealers purchase, contribution to subscription cancellation and rough and aggressive market behaviour)
constitute examples of unfair conducts in B2B relations covered by the general clause of section 1(1) of the Marketing Practices Act. From
the explanatory remarks to the proposal of the Act results that the incorporation of unfair terms in contracts is considered an unfair
marketing practices. Moreover, the Act contains some provisions of section 3 of this Act defining misleading and aggressive advertising
that apply to B2B relations.
The incorporation of unfair contractual terms might fall under section 1 (1) of the Marketing Practices Act and may in general be
considered inconsistent with clause 36 of the Contracts Act. However, the assessment of the unfairness of a contractual term is different in
the two acts. In general contractual law the assessment is based in the specific contract and the situation between the two contracting
parties. The assessment under the Marketing Practices Act concerns whether the contract terms reasonably may be included in future
contracts with non-identified persons.
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 155
II. Enforcement of instruments addressing UTPs
a. Role of the competition authority (powers to enforce legislation addressing UTPs outside the scope of EU competition law)
The Danish Competition Act and any subordinate rules issued under the Act come under the competence of a politically independent body
called the Competition Council. The Danish Competition Authority is the secretariat of the Competition Council is currently responsible
for the enforcement of the Competition Act. It can conduct investigations ex officio. Danish law does not provide the possibility to
formulate confidential complaints. However, when there is a specific need to keep the identity of the complaint anonymous, according to
the Proceeding Guidelines of the Competition Authority, that possibility can be discussed. Although, as mentioned above, the Danish
Competition Act does not go beyond the scope of the EU competition law.
b. To which extent do other public authorities than competition authorities enforce legislation targeting UTPs (which authorities,
which legislation)?
The Contract Act is enforced by the civil court. The court in the case on unfair contractual terms may declare the contract invalid, wholly or
partly, and order the payment of the damages suffered.
c. Which role does other bodies than public authorities (sectoral bodies, mediation bodies, etc) play in enforcing instruments
addressing UTPs?
There is no reference to the possibility to enforce the above mentioned acts addressing UTPs by arbitration, mediation or though other
private enforcement settlement schemes.
d. Does enforcement by relevant authorities cover confidential complaints and ex officio investigations?
In Denmark, there is no specific regulation of confidential complaints that deals with unfair B2B practices. The Competition Council may
consider cases on its own initiative (ex officio investigations) in accordance with section 14 of the Danish Competition Act. Inspections in
accordance with section 18 demands a court order. The Danish Consumer Ombudsman (DCO) may also consider cases on his own
initiative in accordance with section 1 (1) of Ministerial Order no. 173 of 26 February 2007. Inspections in accordance with section 22a of
the Danish Marketing Practices Act demands a court order. However, the assumption is that the DCO will not act in strictly B2B cases.
III. Recent developments
In the Danish Market three larger retailer groups together make more than 80 percent of the sales. The Danish Competition Authorities
published, in its report from June 2011, concluded that this much consolidated retail structure may cause an imbalance in the relationship
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 156
between retailers and suppliers as the strong bargaining power of the retailers can potentially be misused. An example of unfair trading
practices being observed is retailer’s off-setting undocumented claims and attempting to hold the supplier accountable for the margin. The
so-called private labels further enhance the imbalance between retailer and supplier, as the business partner also becomes a competitor.
The Danish government is of the opinion that trade between the different actors in the supply chain functioning well, even if some aspects
do not functioning in an optimal way and the UTPs described in the Commission Green Paper are among the main reasons. Moreover, the
Danish government recognizes that not all these behaviors are covered by the current legislation, but the government is worried that
increased regulation may have unwanted negative consequences on contractual freedom and make otherwise well-functioning markets
more rigid.
For that reason the Danish government is not currently envisage to introduce new legislation in the field and in the case of an EU initiative
he would prefer a self-regulatory initiative and no a legislative instrument. In respect to self-regulation initiatives, the Danish Association
of Grocery suppliers are currently actively working to implement ‘The Principles of Good Practice in the Food Supply Chain’ as private
regulation in Denmark.
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 157
Name of legislation/private
regulation
Type of
legislation
Enforcing Authority Ex officio investigations confidential
complaints
Frequency of
application
1 Lack of clarity in contract offer
Law on obligations 2001 O Court No No Non-existent
Estonian Traders’
Association’s Code On Good
Trading Conducts, 2008
PR Board of Estonian Traders
Association
No No Uncommon
3 Abuse of economic
dependence/bargaining power4 Liability disclaimers Law on obligations 2001 O Court No No Non-existent
5 Unilateral modification clauses Law on obligations 2001 O Court No No Non-existent
6 Terms unreasonably imposing or
shifting risks
Estonian Traders’
Association’s Code On Good
Trading Conducts, 2008
PR Board of Estonian Traders
Association
No No Uncommon
7 Unfair use of confidential information Estonian Traders’
Association’s Code On Good
Trading Conducts, 2008
PR Board of Estonian Traders
Association
No No Uncommon
8 Unfair use of confidential information
after contract expiry
Law on obligations 2001 O Court No No Non-existent
9 Unfair breaking off of negotiation Law on obligations 2001 O Court No No Non-existent
10 Unfair contract termination Law on obligations 2001 O Court No No Non-existent
11 Refusal to negotiate Estonian Traders’
Association’s Code On Good
Trading Conducts, 2008
PR Board of Estonian Traders
Association
No No Uncommon
ESTONIA
2 Lack of written contract
I. General coverage of core unfair trading practices by different instruments
a. To what extent does competition law address UTPs beyond the scope of EU competition law (art 101 and 102 TFEU)?
In Estonia, competition law does not go beyond the scope of Eu competition law for what concerns UTPs in the retail chain.
b. Is there specific legislation which aims at targeting UTPs in vertical relationships?
Estonian legislation does not have specific regulation in force that specifically addresses UTPs.
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 158
c. Are there private/sectoral instruments specific to UTPs(food, retail etc)
There are several private regulatory instruments in Estonia, which have a broader scope than just tackling UTPs. Four Estonian associations
have adopted private regulations that are relevant for addressing legal issues concerning unfair trading practices in B2B relations. There are
4 codes of Conduct: the Code of Ethics of the Association of Estonian Information Technology and Telecommunications; the Articles
of Association of the Estonian Association of SMEs; the Code on Good Trading Conducts of the Estonian Traders Association and
the Code of Honour of the Estonian Association of Bakeries. All four private regulations have been developed at national level and are
applicable only to the members of the associations that adopted the code.
d. To which extent do other instruments address selected UTPs (unfair competition law, contract law, other)?
Private regulatory schemes, in principle, can cover many of the “core” UTPs identified in our report: however, this the corresponding
enforcement mechanisms are weak, due to the absence of an enforcement body able to collect confidential complaints or launch
investigations ex officio.
II. Enforcement of instruments addressing UTPs
a. Role of the competition authority (powers to enforce legislation addressing UTPs outside the scope of EU Competition law)?
No role.
b. Does enforcement by Competition Authority cover confidential complaints and ex officio investigations?
Confidential complaints are possible only under competition law (section 631 of Estonian Competition Act). Complaints may be filed by
consumers and businesses and regarding any violation. The Estonian Competition Authority does not have powers to launch ex officio
investigations to pursue unfair B2B remit of antitrust law.
Any other public authority in Estonia does not have powers to launch ex officio investigations to pursue unfair B2B trading practices in the
retail chain.
c. To which extent do other public authorities than competition authorities enforce legislation targeting UTPs (which authorities,
which legislation)?
Enforcement modes for contract law are arbitration, mediation and civil court proceedings. Estonian legislation does not require mandatory
alternative dispute resolution before accessing the judicial system.
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 159
d. Does enforcement by relevant authorities cover confidential complaints and ex officio investigations?
No.
e. Which role do other bodies than public authorities (sectoral bodies, mediation bodies etc) play in enforcing instruments
addressing UTPs?
Enforcement modes for private regulatory instruments are mediation, arbitration or private dispute resolution other than arbitration and
mediation (usually the higher committee of the association or its Board). The most effective mode of enforcement is private dispute
resolution.
III. Recent developments
n.a.
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 160
Name of legislation/private
regulation
Type of
legislation
Enforcing Authority Ex officio investigations confidential
complaints
Frequency of
application
1 Lack of clarity in contract offer2 Lack of written contract
3 Abuse of economic
dependence/bargaining power
4 Liability disclaimers Contract Act 1929 O Judge No No Uncommon
5 Unilateral modification clauses Contract Act 1929 O Judge No No Uncommon
6 Terms unreasonably imposing or
shifting risks
Contract Act 1929 O Judge No No Uncommon
7 Unfair use of confidential information Unfair Terms in Contract
between Businesses Act, Nr.
1062/1993
B2B Market Court No No Uncommon
8 Unfair use of confidential information
after contract expiry
Unfair Terms in Contract
between Businesses Act, Nr.
1062/1993
B2B Market Court No No Uncommon
9 Unfair breaking off of negotiation10 Unfair contract termination Contract Act 1929 O Judge No No Uncommon
11 Refusal to negotiate
FINLAND
I. General coverage of core unfair trading practices by different instruments
In Finland the relevant legislation dealing with unfair trading practices (UTPs) is compiled in several different acts belonging to different
areas of law. The relevant acts are: (i) the Unfair trading practices Act110 (unfair competition law); (ii) the Unfair Terms in Contract
Between Business Act111 (contractual law); (iii) the Contract Act112 (contract law); and the Act on Competition Restriction113
(competition law).
110 Unfair trading practices Act 1061/1978, adopted on 22 December 1978, entered into force 1
st January 1979.
111 Unfair Terms in Contracts between Business Act 1062/1993, adopted in 3 December 1993, entered into force 1st January 1994.
112 Contract Act 228/1929, adopted in 13 of June 1929, entered into force in 1st of July 1929.
113 Act on Competition Restriction 948/2011, adopted on 12 August 2011, entered into force on 1st of January 2012.
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 161
a. To what extent does competition law address UTPs beyond the scope of EU competition law (articles 101 and 102 TFEU)?
Finnish competition law does not go beyond the scope of EU competition law.
b. Is there specific legislation which aims at targeting UTPs in vertical relationships?
Finnish legislation addressing UTPs applies to all B2B relations: relations between competitors (horizontal relations) and relations between
market players operating in different stages of the chain (vertical relations). There is no specific legislation for vertical relationships.
c. Is there specific sectoral legislation or for retail or food targeting UTPs?
No.
d. Are there private/sectoral instruments specific to UTPs (food, retail, etc)?
No.
e. To which extent do other instruments address selected UTPs (unfair competition law, contract law, other)?
The most relevant act addressing UTPs in B2B relations is the Unfair Trading Practices Act (UTP Act). The UTP Act aims at protecting
traders in general and protecting fair trading whole and thus to prevent trade practices which harm competition. The act applies only to
B2B relations and covers all economic sectors. In the UTP Act the notion of unfair trading practices is replaced by the concept of ‘good
business practices’. The Act does not contain a black or grey list of UTPs. However, the Act prohibits the unfair use of information, as
defined in the Green Paper, and other aggressive practices.
The Unfair Terms in Contracts between Businesses Act (UTCBA) is a special law that aims to reduce the use of unfair terms in B2B
contracts. The Act aims to protect the collective interest of small companies: accordingly, the provisions contained in the UTCBA are not
applied in disputes between individual entrepreneurs. The UTCB is meant to be used only in business contracts in which the other
entrepreneur is in a weaker position vis-à-vis the other party and that the circumstances are such that it can be compared to a consumer or
an employee. The protection of the collective interests of the small companies aims at preventing future harm as a consequence of the use
of unfair contract terms. The protection is an abstract protection and has effects in future. In the case of unfair contracting terms a pre-
requisite for the applicability of the law is that the term has been used or is aimed to be used in several B2B contracts.
The Contract Act contains basic contract law principles, as the principle of fairness in performance and negotiations and the pre-
contractual information duty, which may offer some level of protection against UTPs. Section 36 of the Contract act contains rules on the
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 162
invalidity of unfair contractual terms. In Finnish law the rules on contract law are divided in two acts: the rules of fairness contained in the
Contract Act which applies to individual contracts and the UTCBA rules on unfair contracts terms aimed to collective protect SME.
II. Enforcement of Instruments addressing UTPs
a. Role of the competition authority (powers to enforce legislation addressing UTPs outside the scope of EU Competition Law)?
The Finish competition law does not address UTPs beyond the scope of the EU competition law. The Finnish Competition and Consumer
Authority (FCCA) in the exercise of their powers can conduct investigations ex officio, but this does not apply to UTPs.
b. To which extent do other public authorities than competition authorities enforce legislation targeting UTPs (which authorities,
which legislation)?
The Market Court has exclusive jurisdiction over the cases relating to unfair business practices, application of the Unfair Trading
Practices Act and Unfair Terms in Contracts between Business Act. The Market Court can order injunctions, conditional fines or order
corrective actions. These types of remedies are aimed at protecting at protecting of collective rights of trades. However, the Market Court
does not have competence to decide on damages. This means that individual businesses, who want to claim compensation for damages
caused by UTPs or the use of unfair contractual terms, have to take legal action in the general civil court.
The Civil Court is competent to enforce breach to the Contracts Act. The court can declare the contract void or null and decide on the
compensation of economic damages suffered.
c. Which role do other bodies than public authorities (sectoral bodies, mediation bodies, etc) play in enforcing instruments
addressing UTPs?
The Board of the Business Practice of the Finish Chamber of Commerce can issue settlements on the area of UTPs in B2B relations.
However, the decisions are not legally binding and the Board only issues statements on whether or not a practice is contrary to the good
business practices.
d. Does enforcement by relevant authorities cover confidential complaints and ex officio investigations?
Based on one expert interview, we can also say, that confidential complaints can be done to FCCA as its main task is to supervise the
compliance of the Act of Competition Restriction and fairness of the competition. The Finnish Competition authority has power to launch
ex officio investigations in areas that fall outside the remit of antitrust law because from the beginning of this year, the two separate
organizations merged: The Finnish Competition Authority and the Finnish Consumer Agency merged into Finnish Competition and
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 163
Consumer Authority (FCCA) from 1 January 2013. The aim of the merger is to increase the societal significance of competition and
consumer issues and to improve administrative efficiency. The statutory tasks of the two agencies remain unchanged in the reform.
The Consumer Ombudsman has power to launch ex officio investigations concerning the issues which conflict both Consumer Protection
Act marketing rules and at the same time Unfair Trading Practices Act marketing rules. But the precondition is that the activities violate
consumer protection rules. Confidential complaints can be filed to Consumer Ombudsman by anyone.
III. Recent developments
The Finish Competition and Consumer Authority (FCCA) recently conducted an investigation related to the use of buyer power in the food
industry, in the sectors of meat processing, bakery, mill, and pet food industry. According to the FCCA report114 retailers use their firm
position with respect to suppliers in several ways that may be considered questionable for sound and effective competition. Examples of the
UTPs from the grocery retailers include in particular the use of gratuitous marketing allowances and the transfer of risk to suppliers (e.g.
repurchase requirements for unsold products). Gratuitous marketing allowances may induce price increases because the suppliers seek to
pass their costs to the purchases. This practice is consider to be particular harmful for the entry of new businesses in the market. The
increasing number of retailers’ own brands (so-called private label products) combined with the strong position of retailers in the category
management may also have a harmful effect on competition.
Moreover, according to information received by the FCCA, the majority of the suppliers in the food chain interviewed have often
experience the threat of having their products delisted from the selection without a justifiable cause. The FCCA hence finds that there is a
clear need for further investigation on UTPs. Presently, however, there are no pending reforms of UTPs.
114 Bjorkroth, Tom & Frosterus, Heli & Kajova, Milla & Paolo, Eija (2012). Study on Trade in Groceries. How does buyer power affect the relations between the trade
and industry? Finish Competition Authority report, 1/2012.
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 164
Name of legislation/private
regulation
Type of
legislation
Enforcing Authority Ex officio investigations confidential
complaints
Frequency of
application
Commercial Code Artt. 120-
122
B2B DGCCRF/Civil and Criminal
Judges
yes (if DGCCRF) yes (if DGCCRF) Frequent
Commercial Code Art. 441-6 B2B Civil Judge no no Uncommon
2 Lack of written contract Commercial Code Art. 441-7 B2B DGCCRF/Criminal Courts yes (if DGCCRF) yes (if DGCCRF) Uncommon
Commercial Code Art. L. 420-
2.2
B2B Competition council upon
investigation by DGCCRF/Judge
(Civil or criminal)
yes (if DGCCRF) yes (if DGCCRF) Uncommon
(when used to
sanction B2B
UTPs)
Commercial Code Art. L. 442-6
C
B2B Judge (eventually ruling on the
claim of the Ministry of
Economy upon investigation by
DGCCRF) / CEPC
yes (if DGCCRF) yes Frequent
4 Liability disclaimers5 Unilateral modification clauses6 Terms unreasonably imposing or
shifting risks7 Unfair use of confidential information Civil Code Art. 1382-1383 O Judge Uncommon
8 Unfair use of confidential information
after contract expiry
Civil Code Art. 1382-1383 O Judge Uncommon
9 Unfair breaking off of negotiation Civil Code Art. 1382-1383 O Judge Frequent
10 Unfair contract termination Commercial Code Art. L. 442-6
I
B2B CEPC /
Judge (eventually ruling on the
claim of the Ministry of
Economy upon investigation by
DGCCRF)
yes (if DGCCRF) yes (if DGCCRF
and Ministry)
Frequent
11 Refusal to negotiate
FRANCE
1 Lack of clarity in contract offer
3 Abuse of economic
dependence/bargaining power
I. General coverage of core unfair trading practices by different instruments
The French legislative and regulatory framework is very dense. The central piece is to be found in “droit des pratiques restrictives”
(DPR), which is part of the commercial code (in part. art. L. 442-1 & s.), and has been significantly revised by Loi de modernisation de
l’économie so called “Loi LME” ((n°2008-776, 4 aug. 2008). DPR is specifically dedicated to unfair practices in vertical relations
(suppliers/distributors), with art. L. 442-6 of the commercial code as core provision.
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 165
The regulation on B2B UTP transcends the traditional fields and areas of French law, which certainly contributes to the feeling that it is
complex. It is, however, usually studied as part of competition law, although a distinction is made between competition law stricto sensu
(“le grand droit de la concurrence”), applicable to practices having an impact on the market, and “droit des pratiques restrictives” (“le petit
droit de la concurrence”), applicable to UTP irrespective if their impact on the market.
Overall, the French legislation covers several of the UTPs identified in the Green Paper.
a. To what extent does competition law address UTPs beyond the scope of EU competition law (Articles 101 and 102 TFEU)?
B2B UTP are also in the scope of competition law, in particular of article L. 420-2 of the commercial code, which rules on abuse of
dominant position and abuse of economic dependence. Competition law will only apply when the practice has an impact on the market.
b. Is there specific legislation which aims at targeting UTPs in vertical relationship?
Both legislation on abuse of economic dependence and legislation found at Art. L. 441-7 (sale/supply contracts between suppliers and
retailers or between good producer and retailers, formal requirements for contract conclusion) apply to vertical relationship in the retail
chain.
c. Is there specific sectoral legislation or for retail or food targeting UTPs?
Loi n°2010-874 du 27 juillet 2010 de modernisation de l’agriculture et de la pêche (2010) for agricultural products (and following Decrees,
such as 2010/1753 on the diary sector).
d. Are there private/sectoral instruments specific to UTPs (food, retail, etc)
As compared to legislation, private regulation in France seems quite poor. But it is not inexistent, and it is actually developing. Private
regulation has been traditionally encouraged by law in order to complement legislation on UTP in certain areas, principally the notice
period in case of termination of the business relation, and the terms and conditions of payment. More recently, private regulation has also
developed aside from the law, with the objective of reinforcing or bringing precision to the legislative framework on UTP. Originally
organized by private actors, this second type of private regulation has been very recently acknowledged and organized by public actors, in
particular with the promotion by the Government of the “Charte des relations inter-entreprises” and of the Label “Relations Fournisseurs
Responsables”. Several French distribution companies are also involved in the discussion on “European Principles on Vertical
Relationships in the Food Supply Chain”.
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 166
e. To which extent does other instruments address selected UTPs (unfair competition law, contract law, other)?
French legislation, as shown in the table above, covers almost all the “core” UTPs identified in our report through a variety of legislative
measures: only the “refusal to negotiate” is not addressed by legislation.
II. Enforcement of instruments addressing UTPs
a. Role of the competition authority (powers to enforce legislation addressing UTPs outside the scope of EU Competition law)?
Two independent authorities are co-supervising UTP: Autorité de la concurrence (ADLC), for UTP having an impact on the market
(competition law); and Commission d’Examen des Pratiques Commerciales (CEPC) for UTP regulated by DPR. But while ADLC has real
sanctioning powers, CEPC has only advisory prerogatives.
b. To which extent do the other public authorities than competition authorities enforce legislation targeting UTPs (which
authorities, which legislation)?
A very important actor of public enforcement is Direction Générale de la Concurrence, de la Consommation et de la Répression des
Fraudes (DGCCRF) which has investigation powers on UTP, and even sanctioning prerogatives on behalf of the Ministry of economy.
Remedies in public enforcement are: monetary penalties (administrative or criminal fines), and injunctions.
c. Which role do other bodies than public authorities (sectoral bodies, mediation bodies, etc) play in enforcing instruments
addressing UTPs
The government has two major roles in the public enforcement of legislation on UTP. Firstly, it exercises most of investigations powers
(although ADLC has now its own investigation power, see above n°45), through a special service: Direction générale de la Concurrence,
de la Consummation et de la Répression des Fraudes (DGCCRF). DGCCRF investigates at the request of, and for the benefit of: CEPC,
ADLC and the Ministry of Economy (eventually as the consequence of an confidential complaint) . Secondly, the government plays a
fundamental role as “prosecuting” authority, because the Ministry of economy/DGCCRF has important powers to initiate investigations, or
to refers matters to CEPC or ADLC. The Government can also, through the public prosecutor, refer the matter to criminal courts. The latter
have the exclusive power to impose criminal sanctions, in particular criminal fines and/or imprisonment. They will do so only when the
legislation expressly provides for criminal sanctions (“principe de légalité des délits et peines”), which is the case for anti-competition
practices (abuse of DP and ED), and more rarely for unfair practices (see tables below). Criminal courts can be seized by ADLC (if an anti
competition practice is observed), by the government through the public prosecutor, or by victims of anti-competition practices and of
unfair practices.
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 167
d. Does enforcement by relevant authorities cover confidential complaints and ex officio investigations?
Yes, DGCCRF investigates at the request of, and for the benefit of CEPC, ADLC and the Ministry of Economy (eventually as the
consequence of an confidential complaint). The Competition Council can act ex officio.
III. Recent developments
No.
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 168
Name of legislation/private
regulation
Type of
legislation
Enforcing Authority Ex officio investigations confidential
complaints
Frequency of
application
1 Lack of clarity in contract offer German Civil Code, in the
version published on 2
January 2002 (BGBl. I S. 42,
ber. S. 2909, 2003 I S. 738), as
last amended by the Act of 1
October 2013 (BGBl. I S. 3719
O Judge No No
2 Lack of written contract3 Abuse of economic
dependence/bargaining power
Act Against Restraints of
Competition in the version
published on 15 July 2005
(BGBl. I S. 2114, ber. 2009 I S.
3850), as last amended by the
Act of 7 August 2013 (BGBl. I S.
3154)
CL (B2B) NCA Yes Yes Uncommon
4 Liability disclaimers German Civil Code 1896 (RGBl,
195)
O Judge No No
5 Unilateral modification clauses6 Terms unreasonably imposing or
shifting risks
German Civil Code 1896 (RGBl,
195)
O Judge No No
7 Unfair use of confidential information Act Against Unfair
Competition in the version
published on 3 July 2004
(BGBl. I S. 1414), as last
amended by the Act of 1
October 2013 (BGBl. I S. 3714)
UC NCA No* No*
8 Unfair use of confidential information
after contract expiry9 Unfair breaking off of negotiation German Civil Code 1896 (RGBl,
195)
O Judge No No
10 Unfair contract termination11 Refusal to negotiate
GERMANY
* The NCA can act ex officio and receive confidential complaints only when applying the act against restraints of competition
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 169
I. General coverage of core unfair trading practices by different instruments
The Germany legislation dealing with unfair trading practices (UTPs) belongs to the area of competition law, unfair competition law and
contract law. Of major relevance for the assessment of UTPs is the Act Against Unfair Competition115 (UWG), the Act Against
Restraints of Competition116 (GWB) and the German Civil Code117 (BGB), which plays a supplementary role in combating UTPs. This
three Acts often overlap and complement each other as refers to UTPs.
a. To what extent does competition law address UTPs beyond the scope of EU competition law (articles 101 and 102 TFEU)?
The Act Against Restraints of Competition does not directly deal with the unfairness of trading practices. It prohibits anti-competitive
agreements, the abuse of dominant position and the abuse of economic dependence. In this extent, it goes beyond the scope of the Article
102 TFEU by regulating the abuse of economic dependence which has a relevant impact on the market.
b. Is there specific legislation which aims at targeting UTPs in vertical relationships?
The Act Against Unfair Competition is the major German law addressing UTPs. The Act aims to protect competitors, consumers and
other market players against unfair commercial practices. At the same time, it protects the interests of the public in preserving undistorted
competition. This is a general piece of legislation applying to all sectors in B2C and B2B relations, which applies to practices in horizontal
(between competitors) and vertical relations (other market players). Excluded from the integrated approach are only the black list on unfair
B2C commercial practices and the consumers general clause in §3 (2) UWG, which implements Article 5 of the 2005/29/EC Directive and
applies only in B2C relations. Although there is no definition of UTPs analogous to the one used in the Green Paper, the notion of “unfair
commercial practices”, defined in § 2 (1) 1 UWG, covers both B2C and B2B relations. Unfair commercial practices shall be illegal if they
are suited to tangible impairment of the interests of competitors, consumers and other market participants (§ 3 (1)). Although the black list
in Annex to § 3 (3) UWG only applies to B2C relations, the rules § 4 to § 7 UWG provide same examples of unfair practices that also
apply in the B2B relations, like the unfair use of information.
115
Act Against Unfair Competition 2004, [Gesetz gegen den unlauteren Wettbewerb (UWG)] of 3 July 2004 (BGB1, 1414□ff.)
116 Act Against Restraints of Competition [Gesetz gegen Wettbewerbschränkungen (GWB)] of 27 July 1957 (BGB1, 1081).
117 Civil Code [Bürgerliches Gesetzbuch (BGB)] of 18 August 1896 (RGB1 195).
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 170
c. Is there specific sectoral legislation or for retail or food targeting UTPs?
In German legal system there is no specific sectoral legislation addressing UTPs in the retail or food supply chain. The UWG, the GWB
and the BGB apply to all the sectors of economy and none of them expressly defines UTPs or explicitly mentions the retail or food supply
chain.
d. Are there private/sectoral instruments specific to UTPs (food, retail, etc)?
The exiting private regulatory instruments, general and at sectoral level, are not relevant in what concerns to UTPs.
e. To which extent does other instruments address selected UTPs (unfair competition law, contract law, other)?
The BGB applies to all contracts and regulates, among others, the use of unfair terms. §§ 305-310 BGB regulated the use of standards
business terms. However, § 308 and § 309 BGB, transposing Directive 93/13/EEC on unfair terms in consumer contracts and containing a
list of prohibited clauses, are only applicable to B2C relations (§310 (1) BGB), German case law has developed the practice of using a
breach against an example given in those articles as an indicator for the invalidity of the contract clause in B2B contracts. Considering the
different classes of UTPs that are identified in the Green Paper, several of them may be covered by those provisions, especially in the light
of the examples given by § 308 and § 309 BGB. These include unfair transfer of commercial risk and lack of clarity in contractual offer.
Aside from the provisions governing the use of standards business terms, secondary contractual obligations, deriving from the notion of
good faith in § 242 BGB and the regulation of culpa in contrahendo (§311 (2) BGB) are also relevant for certain categories of UTPs. These
include the unfair use of information and unfair termination of a commercial relationship.
All in all, in Germany several selected UTPs are addressed by legislation. However, only in the case of abuse of economic dependence and
abuse of confidential information the NCA can enforce the rules, also acting ex officio and collecting confidential complaints.
II. Enforcement of Instruments addressing UTPs
a. Role of the Competition authority (powers to enforce legislation addressing UTPs outside the scope of the EU Competition Law
The Act Against Restraints of Competition is enforced by administrative authorities (the Federal Cartel Office and its counterparts in the
respective Länder and the Federal Ministry of Economics and Technology), by civil and criminal courts (the latter only in case of legal
proceedings concerning administrative fines), as well as through arbitration. The administrative authorities can start an investigation ex
officio.
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 171
The administrative procedure allows, among others, for injunctions, declaring a certain behaviour invalid, monetary penalties, damages,
and skimming-off procedure to recover ill-gotten gains.
b. To which extent do other public authorities than competition authorities enforce legislation targeting UTPs (which authorities,
which legislation)?
In the case of a breach of the Act Against Restraints of Competition, Civil courts can order the payment of damages and imposing
injunctions. Only the criminal courts have competence to impose administrative fines.
Infringements of the UWG has civil and/or criminal legal consequences. Consequently, the Act Against unfair Competition can be
enforced in the Civil Courts, the Criminal Courts or by the means of private dispute resolution. The Civil court may deploy any of the
following remedies to counteract unfair practices: renegotiation agreements, injunctions, monetary penalties, damages, elimination,
cessation and desistence and the confiscation of profits. The criminal court may impose fines and imprisonment measures.
Natural persons, associations with legal personality, qualified entities (e.g. the Centre for Protection against Unfair Competition) and
Chambers of Industry and Commerce or Craft Chambers have the right to file a claim before the court.
The parties entitled to assert an action for injunctions should warn the violator prior to initiating the court proceeding and give him the
opportunity to resolve the dispute by incurring the obligation to cease and desist subject to a reasonable contractual penalty.
The unlawfulness of contract term definitions or other action deemed UTPs according to the Civil Code is assessed though a dispute in the
civil courts or by means of arbitration. The civil courts may prescribe remedies such as: renegotiations of an agreement, injunctions,
invalidity of clauses, damages and restitution. In the specific case of unfair contract terms, the legal consequence is their ineffectiveness.
c. Which role the other bodies than public authorities (sectoral bodies, mediation bodies, etc) play in enforcing instruments
addressing UTPs?
The resolution of civil law disputes from a breach of the Act Against Unfair Competition can also be submitted to a conciliation board.
According to § 15 UWG the conciliation boards shall be established at the Chamber of Industry and Commerce. The conciliation boards
may be classified as a form of private dispute resolution other than arbitration. This conciliation mechanism is not mandatory regarding to
B2B disputes. The conciliation board makes a settlement proposal. If the parties agree with the proposed solution the outcome of this
procedure is a settlement that is enforceable by law.
Disputes arising from a violation of the Civil Code can be submitted to a arbitration body.
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 172
d. Does enforcement by relevant authorities cover confidential complaints and ex officio investigations?
Confidential complaints in the form of information about anti-competitive behaviour can be filed to the Federal Cartel Office
(https://www.bkms-system.net/bkwebanon/report/). For reasons of competence of the Cartel Office, these complaints can only be of
relevance if concerning antitrust law. Likewise, the cartel office can start investigations ex officio [cf. § 54 (1) GWB], though limited to the
investigation of breaches of the Act Against Restraints of Competition.
III. Recent developments
From the data collected during the elaboration of this study, mainly though the interviews held with 3 German national associations (the
German Retail Federation, the German Food and Drinks Industries and the Association of German Chambers of Commerce and Industry)
as well as the interview with Dr. Maja Murza of the Federal Ministry of economy and Technology it is possible to state that unfair trading
practices in the retail supply chain occur in Germany. However, there is no consensus whether further legislative or private initiatives
would be needed.
The Federal Cartel Office (Budeskartellamt) recently undertook an analysis of the food and non-food retail sector. The examination focuses
on the competitive conditions in the markets for the procurement of food and beverages by food retailers. The increasing consolidation in
the food retail sector leads to a high level of concentration in favour of the leading retail companies: the four leading retail companies have
come to control around 85% of the total sales market in Germany. No conclusions has been reached yet. The Office also conducted in the
past an investigation on the milk sector, concluding that no further actions was needed in this sector.
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 173
Name of legislation/private
regulation
Type of
legislation
Enforcing Authority Ex officio investigations confidential
complaints
Frequency of
application
1 Lack of clarity in contract offer
2 Lack of written contract3 Abuse of economic
dependence/bargaining power
Law Nr. 146/1914 “Regarding
unfair competition” Art. 18a
UC Courts No No Uncommon
4 Liability disclaimers Law Nr. 146/1914 “Regarding
unfair competition” Art. 18a
UC Courts No No Uncommon
5 Unilateral modification clauses Law Nr. 146/1914 “Regarding
unfair competition” Art. 18a
UC Courts No No Uncommon
6 Terms unreasonably imposing or
shifting risks
Law Nr. 146/1914 “Regarding
unfair competition” Art. 18a
UC Courts No No Uncommon
7 Unfair use of confidential information
8 Unfair use of confidential information
after contract expiry9 Unfair breaking off of negotiation
10 Unfair contract termination Law Nr. 146/1914 “Regarding
unfair competition” Art. 18a
UC Courts No No Uncommon
11 Refusal to negotiate
GREECE
I. General coverage of core unfair trading practices by different instruments
The main law which addresses UTPs in Greece is Law 146/1914 “Regarding unfair competition”, which, apart from a general clause
contained at Article 1, includes specific provisions on misleading advertising (article 3), disparagement (article 11), libellous defamation
(article 12), protection for unregistered marks (articles 13-15), trade secret infringements (articles 16-18) and – most importantly for our
purposes – abuse of economic dependence (article 18a). The Law has undergone only minor amendments, the latest and most significant of
which was made by Law 3784/2009.
Law No. 146/1914 intends to protect individual traders from unfair practices by their competitors contravening “bonos mores”. The Law is
not based on Articles 101 and 102 of TFEU. Article 18a specifies that abuse of economic dependence may include “the imposition of
arbitrary terms in transactions, the implementation of discrimination or the unjustified termination of an existing commercial relationship
between the undertakings involved, taking into account, inter alia, their previous commercial relations and commercial usage”.
Accordingly, the Greek law covers some of our selected UTPs, and namely the abuse of economic dependence, unfair contract termination,
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 174
liability disclaimers, unilateral modification clauses and terms unreasonably imposing or shifting risks (we assume that the latter two can
covered by the reference to the imposition of arbitrary terms).
Art. 18a protects individual traders from unfair practices by their competitors contravening bonos mores. It differentiates from the former
Art. 2a of the Competition Act only as far as it provides that in case of abuse, damages can be claimed and a fine up to 50.000 Euros may
also be imposed. The fine can be doubled in case of recurrence. (par. 2 & 3 of Art. 18a).
Civil courts have exclusive competence in relation to the application of this provision and, therefore, privates can only recover damages
suffered only by filing a claim before civil courts on the basis of the provisions of the Unfair Competition Law. According to some
scholars, all unfair competition claims based on the Law no. 146/1914 fall within the competence of the “multimember courts”, whereas
others believe that the competent court should be determined on the basis of the total value of the claims . To our knowledge, there have
not been many cases initiated by private parties and very few cases have been rendered by courts on abuse of economic dependence. In
particular, no other cases specifically on Art. 18a only were dealt with by courts. Many filed cases deal with unfair competition practices in
general and the abuse of economic dependence is dealt with only marginally. It seems, thus, that the significance of the provision is now
quite diluted.
a. To what extent does competition law address UTPs beyond the scope of EU competition law (art 101 and 102 TFEU)?
Law 3959/2011 regarding competition does not address directly UTPs and does not go beyond the scope of EU competition law for what
concerns the purposes of our study. Originally, the prohibition of abuse of a relationship of economic dependence was inserted in this law
by Art. 16 of L. 2000/1991, which added a new paragraph to Art.2 of competition legislation L. 703/1977. It was incorporated as a separate
article and substituted by Art.1 (2) of L.2296/1995. It was abolished by Art.1 (1) of L.2837/2000, and came into force again by the
aforementioned Art.1 of L.3373/2005. The new Competition Act 3959/2011 has no provision on abuse of economic dependence. It was
abolished again in 2009 (L3784/2009) and now is inserted as article 18a in the AUC pursuant to which any such claims need to be brought
before civil courts and not before the competition authority. The preparatory committee of L.3784/2009 explains that the reason for
abolishing Art. 2A of the former Competition Act on abuse of economic dependence and bringing it within the AUC legal framework
relates to the fact that the Competition Act aims only at the protection of competition itself and not to the protection of individuals.
b. Is there specific legislation which aims at targeting UTPs in vertical relationships?
Yes, the already-mentioned provision on abuse of economic dependence contained at Article 18a of the unfair competition law.
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 175
c. Are there private/sectoral instruments specific to UTPs (food, retail etc)
No. Private regulation exists for the advertising activities and in the pharmaceutical sector, but are related to fair conduct vis à vis
consumers rather than to B2B relationships.
d. To which extent do other instruments address selected UTPs (unfair competition law, contract law, other)?
Unfair trading practices in Greece are addressed mainly by the unfair competition provisions.(Law 146/1914).
II. Enforcement of instruments addressing UTPs
a. Role of the competition authority (powers to enforce legislation addressing UTPs outside the scope of EU Competition law)?
No role.
b. Does enforcement by Competition Authority cover confidential complaints and ex officio investigations?
Not for UTPs.
c. To which extent do other public authorities than competition authorities enforce legislation targeting UTPs (which authorities,
which legislation)?
Article 1 of law 146/1914 determines the possibility to claim injunction and damage compensation for acts of unfair competition. Claims
can be founded also under Articles 914 and 919 of the Civil Code, in case of tort liability. The above claims are provided also in case of
infringement of article 3 of law 146/1914. The most effective and common way to ask for protection against unfair competition actions is
by raising petitions before the Courts of first instance for provisional measures. These petitions, which seek the imposition of interim
measures, are then followed by lawsuits in which the plaintiffs can obtain an injunction and damage compensation.
d. Which role do other bodies than public authorities (sectoral bodies, mediation bodies etc) play in enforcing instruments
addressing UTPs?
No role (only in advertising by the Greek advertising self-regulation committee, but not relevant for vertical relationships.
III. Recent developments
No relevant initiative.
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 176
Name of legislation/private
regulation
Type of
legislation
Enforcing Authority Ex officio investigations confidential
complaints
Frequency of
application
1 Lack of clarity in contract offer2 Lack of written contract Act XCV. of 2009 on
Prohibition of Unfair
Distribution Behavior against
Suppliers in Relation with
agricultural and food Products
FD National Food Chain Safety
Office (“NÉbiH”)
Yes Yes Frequent
3 Act CLXIV of 2005 on Trade B2B NCA Yes Yes Frequent
Act XCV. of 2009 on
Prohibition of Unfair
Distribution Behavior against
Suppliers in Relation with
agricultural and food Products
FD National Food Chain Safety
Office (“NÉbiH”)
Yes Yes Frequent
4 Liability disclaimers5 Act CLXIV of 2005 on Trade B2B NCA Yes Yes Frequent
Act XCV. of 2009 on
Prohibition of Unfair
Distribution Behavior against
Suppliers in Relation with
agricultural and food Products
FD National Food Chain Safety
Office (“NÉbiH”)
Yes Yes Frequent
6 Terms unreasonably imposing or
shifting risks
Act CLXIV of 2005 on Trade B2B NCA Yes Yes Frequent
7 Unfair use of confidential information
8 Unfair use of confidential information
after contract expiry9 Unfair breaking off of negotiation
10 Unfair contract termination Act CLXIV of 2005 on Trade B2B NCA Yes Yes Frequent
11 Refusal to negotiate
HUNGARY
Abuse of economic
dependence/bargaining power
Unilateral modification clauses
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 177
I. General coverage of core unfair trading practices by different instruments
Selected UTPs are mostly tackled by the Act CLXIV of 2005 on Trade (which contains provisions on abuse of dominance and abuse of
economic dependence that go beyond the scope of Art. 102 TFEU) and, for the food sector, by Act XCV of 2009 on the Prohibition of
Unfair distribution behaviour against suppliers in relation with agricultural and food products. The first is enforced by the national
competition authority, the latter by the National Food Chain Safety Office.
a. To what extent does competition law address UTPs beyond the scope of EU competition law (art 101 and 102 TFEU)?
In the Hungarian Law, the Act LVII of 1996 on the Prohibition of Unfair and Restrictive Market Practices (“Competition Act”) contains
the most important provisions related to Competition. It does not go beyond the scope of EU competition law (although some provisions
could possibly be construed as abuse of economic dependence). However, as already mentioned, Act CLXIV of 2005 on Trade contains
provisions on abuse of dominance and abuse of economic dependence that go beyond the scope of Art. 102 TFEU. The law covers all
trading activities performed in Hungarian territory and aims at protecting the interests of the traders and the consumers. Subsection 5 of
Section 7 of the law introduced a concept akin to abuse of dominance – the ‘abuse of significant market power’ – which uses a minimum
threshold (yearly net turnover of 100 billion Hungarian Forints) to identify undertakings holding significant market power. This legal
provision is essentially aimed at addressing cases of abuse of buyer power, by means of different and stand-alone legislation separate from
the competition law. This legislation, in force since 1 June 2006, explicitly prohibits the abuse of significant market power against
suppliers, and is enforced by the Hungarian Competition Authority, which uses separate forms for notifications based on the Trade Act.
Companies having significant market power may be required to adopt fair market practices in dealing with suppliers, to draw up self-
regulatory standards or codes of conduct governing such practices, along with the procedures to be applied in connection with any violation
of these standards and codes.
b. Is there specific legislation which aims at targeting UTPs in vertical relationships?
Act CLXIV of 2005 on Trade and – for the food sector - Act XCV of 2009 both relate essentially to vertical relationships.
c. Are there private/sectoral instruments specific to UTPs (food, retail etc)
According to the Hungarian law private regulations are also available (see for instance the Code of the Hungarian Chamber of Commerce),
however the importance of them is quite low and they do not specifically target UTPs. The Code itself is not more than a guideline, without
effective sanctions: it can thus be considered as a complement to the existing public legislation.
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 178
d. To which extent do other instruments address selected UTPs (unfair competition law, contract law, other)?
Paragraphs a), b) and e) of Section 7(2) of the Act on Trade prohibit conduct such as, i.a., unduly discriminating against a supplier;
restricting access of a supplier to marketing channels; and imposing unfair conditions upon the supplier in connection with his business
relations with the trader or with another trader. The latter conduct may consist e.g., in demanding the best available terms and conditions as
obligatory, and enforcing such terms and conditions with retroactive effect, i.e. compelling the supplier to provide discounts during a
specific period for a specific product only to the trader in question, or compelling the supplier to manufacture products under the trader's
trade mark or brand name as a precondition for the marketing of any other product of the supplier”. In addition, paragraphs c), d), g), h) and
i) of the same Section of the Act on Trade contain relevant provisions on abuse of superior bargaining position. These rules prohibit
conduct such as:
Prescribing undue risk pooling contract conditions resulting in one-sided advantages to the trader as against the supplier, meaning in
particular the charging of expenses serving also the business interest of the trader, such as storage, advertising, marketing and other
costs to the supplier;
The unjustified amendment of contractual conditions to the detriment of the supplier, or installing a clause permitting such possibility
for the trader;
Asserting a threat for cancelling the contract to impel contract conditions for lopsided advantages;
Applying pressure upon a supplier to use other suppliers or the trader’s own supplier.
Applying a sale price for products which are not owned by the trader below the price invoiced as contracted, not including the prices
employed for the sale of products with some defect or for the sale of products inside of a seven-day period before the date of expiry of
their shelf life, or the introductory prices that may be used for maximum fifteen days, or the prices employed in a clearance sale for
maximum fifteen days in any seasonal campaign, any sales campaign due to changing models or profile, or due to going out of
business.
The Act on Trade is enforced by the Hungarian Competition Authority (GVH). The settlement procedure, as laid down in Section 75 of the
Hungarian Competition Act, led some companies under investigation to undertake to cease the infringing conduct, for example by
reviewing their contractual practices.
Act XCV of 2009 “on the Prohibition of Unfair Trading Practices vis-à-vis the Suppliers of Agricultural and Food Products” (the
“Retailer–Supplier Act”) applies to undertakings producing, processing, or redistributing agricultural and food industry products without
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 179
processing, and undertakings which sell such products to end customers, and Act XVI of 2003 “on the Agricultural Market Organisation”
applies to agricultural and food products. It covers conducts such as the lack of written contract, unilateral modification clauses and the
abuse of economic dependence (and through this provision, also the unfair shifting of commercial risk and the abuse of confidential
information during the contractual relationship).
II. Enforcement of instruments addressing UTPs
a. Role of the competition authority (powers to enforce legislation addressing UTPs outside the scope of EU Competition law)?
The Competition Act and the Act on Trade are enforced by Hungarian Competition Authority (hereinafter “HCA”). The procedure of the
HCA is an administrative procedure.
b. Does enforcement by Competition Authority cover confidential complaints and ex officio investigations?
According to the Hungarian Competition Act: “It is possible to initiate ex officio complaints, in any business relation, therefore in B2B
relations as well”. Anyone (individuals, consumer, business partners, etc.) can file a complaint with the HCA. After the complaint, the
HCA will examine it, and eventually initiate an ex officio investigation, if necessary. Complaints can also be confidential.
c. To which extent do other public authorities than competition authorities enforce legislation targeting UTPs (which authorities,
which legislation)?
In the food sector the national Food Chain Safety Authority enforces Act XCV of 2009.
d. Does enforcement by relevant authorities cover confidential complaints and ex officio investigations?
In the food sector the national Food Chain Safety Authority can launch ex officio investigations and collect confidential complaints.
e. Which role do other bodies than public authorities (sectoral bodies, mediation bodies etc) play in enforcing instruments
addressing UTPs?
The parties concerns can use other alternative mechanisms, like mediation or arbitration, however the use of these procedure are neither
mandatory nor common.
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 180
III. Recent developments
General knowledge about UTP in B2B and how it functions is not comprehensive among stakeholders, even the representative
organizations has limited information on the actual market practices.
a. Have Competition authorities or other authorities recently looked at UTPs in retail or the food sector?
The competition authority (GVH) dealt with alleged infringements of the Act on Trade in several cases, including cases Vj-91/2008, Vj-
93/2008 and Vj-94/2008, in which the intervention of the GVH led several retailers to review their contracts signed with suppliers. GVH
launched a proceeding against Provera Beszerzési (Purchasing) Kft and its partners (the Hungarian Hipermarket running Cora
hypermarkets, Csemege-Match Kereskedelmi (Trading) Zrt., Profi Magyarország Kereskedelmi Zrt.). Meanwhile proceedings were
initiated against Auchan Magyarország Kft. and Metro Kereskedelmi Kft. as well with the aim to review their contractual practices. The
GVH examined in all three cases whether the undertakings had infringed the 2005 Act on Trade, in other words whether they had abused
their significant market power in the course of entering into the supplier contracts applied by them.
Information provided on the website of the Hungarian authority responsible for enforcing the Hungarian UTP-legislation specific to the
food sector mentions that 29 cases of UTPs have been launched since 2010. Fines have been imposed in 18 cases (some of them for
procedural reasons) and 5 cases have ended with judicial review.
b. Pending reform relevant for UTPs?
No.
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 181
Name of legislation/private
regulation
Type of
legislation
Enforcing Authority Ex officio investigations confidential
complaints
Frequency of
application
1 Lack of clarity in contract offer2 Lack of written contract3 Abuse of economic
dependence/bargaining power4 Liability disclaimers Sale of Goods Act, 1893 [as
amended by, in particular, the
Sale of Goods and Supply of
Services Act 1980 (No.
16/1980) and the Consumer
Credit Act 1995 (No. 24/1995)]
O Court No No Not known
5 Unilateral modification clauses6 Terms unreasonably imposing or
shifting risks
Sale of Goods Act, 1893 [as
amended by, in particular, the
Sale of Goods and Supply of
Services Act 1980 (No.
16/1980) and the Consumer
Credit Act 1995 (No. 24/1995)]
O Court No No Not known
7 Unfair use of confidential information
8 Unfair use of confidential information
after contract expiry9 Unfair breaking off of negotiation
10 Unfair contract termination11 Refusal to negotiate
IRELAND
I. General coverage of core unfair trading practices by different instruments
Legislation in Ireland provides for very partial coverage of UTPs. There are only general provisions in the Sale of Goods Act, which
potentially cover liability disclaimers and the unreasonable imposition or shifting of commercial risks. No specific enforcement
mechanisms in addition to civil courts are foreseen.
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 182
a. To what extent does competition law address UTPs beyond the scope of EU competition law (Articles 101 and 102 TFEU)?
The Competition Act does not go beyond the scope of EU competition law. The Competition (Amendment) Act 2006 inserted a new Part
2A into the Competition Act 2002, was enacted to prevent certain unfair trading practices in the grocery trade. Its provisions prohibit the
following practices in the grocery trade:
attempts to impose resale price maintenance;
discrimination by applying dissimilar conditions to equivalent transactions in the sector;
compelling or coercing payment or allowances for advertising or display of goods; and
“hello money” in relation to new or extended retail outlets or outlets under new ownership.
This conduct is only prohibited where its object or effect is the prevention, restriction or distortion of competition. This means that the
application of these rules specific to the grocery sector does not go beyond the scope of EU competition law.
b. Is there specific legislation which aims at targeting UTPs in vertical relationship?
No.
c. Is there specific sectoral legislation or for retail or food targeting UTPs?
No, contrary to what occurred in the past with the Restrictive Practices (Groceries) Order in 1987, then repealed.
d. Are there private/sectoral instruments specific to UTPs (food, retail, etc)
A Draft Code of Practice for Designated Grocery Goods Undertakings is pending since 2011, and forms a proposal for a statutory code of
Practice.
e. To which extent does other instruments address selected UTPs (unfair competition law, contract law, other)?
No extent.
II. Enforcement of instruments addressing UTPs
a. Role of the competition authority (powers to enforce legislation addressing UTPs outside the scope of EU Competition law)?
The competition authority intervenes only for violations that fall under the scope of EU competition law.
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 183
Particular attention must be paid to Part 2A of the Competition Act 2002 which makes specific provision for the Grocery Goods Sector.
As discussed, this provision has an extensive legislative history including the 1987 Groceries Order. However, no cases have been brought
under Part 2A to date, for reasons which are disputed but have been said (by, for instance, the Competition Authority) to include suppliers’
fear of delisting by retailers.
b. To which extent do the other public authorities than competition authorities enforce legislation targeting UTPs (which
authorities, which legislation)?
No special role of other authorities.
c. Which role do other bodies than public authorities (sectoral bodies, mediation bodies, etc) play in enforcing instruments
addressing UTPs
No special role of other bodies.
d. Does enforcement by relevant authorities cover confidential complaints and ex officio investigations?
Confidential complaints to the NCA are possible but only for antitrust cases. It does not appear that any other public authority has the
power to launch, or has in fact launched, an ex officio investigation to specifically pursue unfair B2B trading practices in the retail supply
chain. It should be noted, however, that the Joint Committee on Agriculture, Food and the Marine published its report in October 2013.
III. Recent developments
Irish provisions relating to unfair B2B trading practices in the retail supply chain may currently be in a state of change, having particular
regard to the following:
1) The Voluntary Framework which is being rolled out in jurisdictions including Ireland has the potential to address unfair B2B trading
practices in the retail supply chain. The extent to which the Framework will be rolled out and used in Ireland cannot be anticipated at
this point.
2) The Government has announced its intention to publish the Consumer and Competition Bill with the intention, it is said, of inter alia
amalgamating the National Consumer Agency and the Competition Authority, and of placing on a statutory footing a Grocery Goods
Code (a draft of which is discussed in the report).
3) In October 2013 the Joint Committee on Agriculture, Food and the Marine advocated in its report the adoption of a code of conduct in
the grocery goods sector, supervised by an independent ombudsman.
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 184
Name of legislation/private
regulation
Type of
legislation
Enforcing Authority Ex officio investigations confidential
complaints
Frequency of
application
Consumer Code Artt. 18-27 O Judge or NCA No (yes for NCA) No (both) too new
Law-decree 24.1.2012, Nr. 1,
converted with amendments
by Law 24.3.2012, Nr. 27,
concerning commercial (B2B)
transactions in the field of
cession of agricultural or agri-
food products, Art. 62
FD NCA or judge Yes (NCA); No (judge) No (NCA) and No
(judge)
too new
2 Lack of written contract Law-decree 24.1.2012, Nr. 1,
converted with amendments
by Law 24.3.2012, Nr. 27,
concerning commercial (B2B)
transactions in the field of
cession of agricultural or agri-
food products, Art. 62
FD NCA or judge Yes No (NCA) and No
(judge)
too new
Law 18.6.1998, Nr. 192,
concerning sub-supply
relationships in productive
activities, Art. 9
B2B Judge (NCA only when relevant
as antitrust infringement)
No No Uncommon
Law-decree 24.1.2012, Nr. 1,
converted with amendments
by Law 24.3.2012, Nr. 27,
concerning commercial (B2B)
transactions in the field of
cession of agricultural or agri-
food products, Art. 62
FD NCA or judge Yes (NCA); No (judge) No (NCA) and No
(judge)
too new
Code of Commercial Ethics for
the Sale of Furniture and
Dècor
PR Committee of wise men No No
4 Liability disclaimers Artt. 1341-1342 Civil Code O Judge No No Uncommon
5 Unilateral modification clauses Law 18.6.1998, Nr. 192,
concerning sub-supply
relationships in productive
activities, Art. 9
B2B Judge (NCA only when relevant
as antitrust infringement)
No No Uncommon
ITALY
1 Lack of clarity in contract offer
3 Abuse of economic
dependence/bargaining power
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 185
6 Terms unreasonably imposing or
shifting risks
Law-decree 24.1.2012, Nr. 1,
converted with amendments
by Law 24.3.2012, Nr. 27,
concerning commercial (B2B)
transactions in the field of
cession of agricultural or agri-
food products, Art. 62
FD NCA or judge Yes (NCA); No (judge) No (NCA) and No
(judge)
too new
7 Unfair use of confidential information
8 Unfair use of confidential information
after contract expiry
Law 6.5.2004, Nr. 129 on
“commercial affiliation”
(franchising), Art. 6
B2B Judge No No Uncommon
9 Unfair breaking off of negotiation Law-decree 24.1.2012, Nr. 1,
converted with amendments
by Law 24.3.2012, Nr. 27,
concerning commercial (B2B)
transactions in the field of
cession of agricultural or agri-
food products, Art. 62
FD NCA or judge Yes (NCA); No (judge) No (NCA) and No
(judge)
too new
Law 18.6.1998, Nr. 192,
concerning sub-supply
relationships in productive
activities, Art. 9
B2B Judge (NCA only when relevant
as antitrust infringement)
No No Frequent
Law-decree 24.1.2012, Nr. 1,
converted with amendments
by Law 24.3.2012, Nr. 27,
concerning commercial (B2B)
transactions in the field of
cession of agricultural or agri-
food products, Art. 62
FD NCA or judge Yes (NCA); No (judge) No (NCA) and No
(judge)
too new
Code of Conduct of
Assofranchising, 2006
PR Assofranchising No No Uncommon
11 Refusal to negotiate Law 18.6.1998, Nr. 192,
concerning sub-supply
relationships in productive
activities, Art. 9
B2B Judge (NCA only when relevant
as antitrust infringement)
No No Uncommon
10 Unfair contract termination
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 186
I. General coverage of core unfair trading practices by different instruments
Overall, Italy features a very extensive coverage of the UTPs included in the Green Paper, thanks to legislation on abuse of economic
dependence, legislation on unfair competition, legislation on unfair trading and commercial practices and various instances of private
regulation. Coverage is more extensive in the food sector after the adoption of the Law on commercial transactions in the field of
cession of agricultural or agri-food products.
a. To what extent does competition law address UTPs beyond the scope of EU competition law (Articles 101 and 102 TFEU)?
No extent. Italian competition law follows the scope of EU legislation.
b. Is there specific legislation which aims at targeting UTPs in vertical relationship?
Law 18.6.1998, n° 192, concerning sub-supply (“subfornitura”) relationships in productive activities, as modified by art. 11 Law 5.3.2001,
n. 57, and by art. 10, Law 11.11.2011, n. 80 (“Provisions to protect the freedom of undertaking. Statute of enterprises”), entered into force
on 20.10.1998, contains a rule on abuse of economic dependence that directly applies to most of the UTPs contained in the Green Paper.
Consumer protection legislation, on unfair commercial practices, has been extended to B2b (microenterprise) relationship, in particular Art.
18-27 Legislative Decree 6.9.2005 n° 206 since 24.1.2012;
Also Art. 7, Legislative Decree 9.10.2002, n. 231, implementing the Late Payment Directive 2000/35, as amended by Legislative Decree
9.11.2012, n. 192, implementing the 2nd Late Payment Directive 2011/7, applies to vertical relationships.
c. Is there specific sectoral legislation or for retail or food targeting UTPs?
Art. 62 Law Decree 24.1.2012, n° 1, converted with amendments by Law 24.3.2012, n° 27, concerning commercial (B2B) transactions in
the field of cession of agricultural or agro-food products (entered into force on 24.10.2012), implemented by Decree of the Ministry for
farming, food and forestry policies 19.10.2012, n° 199 (entered into force on 8.12.2012).
d. Are there private/sectoral instruments specific to UTPs (food, retail, etc)
Code of Commercial Ethics for the Sales of Furniture and Decor (Codice di etica commerciale per la vendita di mobili e beni di
arredamento), drafted by the Chamber of Commerce of Milan together with FEDERMOBILI (Association of Furniture Shops) and
adopted at a national level by “Unioncamere” (Italian Union of Chambers of Commerce, Industry, Handcraft and Agricolture, “Unione
italiana delle Camere di commercio, industria, artigianato e agricoltura”), i.e. by the public entity unifying and institutionally
representing the whole Italian Chambers system.
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 187
Code of Ethics in the Field of Chemical Commerce adopted by the Chamber of Commerce of Milan with Delib. Nr. 108 of
16.04.2012 and drafted together with AssICC (Italian Association of Chemical Commerce, Associazione Italiana Commercio Chimico).
Code of conduct of Assofranchising (Italian Association for Franchising), adopted on 1.1.1995, revised on 25.5.2006
e. To which extent does other instruments address selected UTPs (unfair competition law, contract law, other)?
Both unfair competition law and general contract tackle a subset of the UTPs identified in the Green Paper. Art. 2598 Civil Code (Unfair
Competition Actions) covers mostly unfair use of information, whereas Art. 1341 para 2 Italian Civil Code deals with Unfair Standard
Contract Terms. Legislative Decree 2.8.2007, n° 145 implements the directive 2006/114 on misleading and deceptive marketing practices.
II. Enforcement of instruments addressing UTPs
a. Role of the competition authority (powers to enforce legislation addressing UTPs outside the scope of EU Competition law)?
The Competition Authority investigates and prosecutes well beyond the boundaries of EU competition law. Both Art. 18-27 Consumer
Code and Art.62 Law Decree 24.1.2012, n° 1 have been entrusted to the Antitrust Authority. The same had already happened with the
provisions concerning abuse of economic dependence, although they have nevertheless proved to be highly ineffective in practice.
b. To which extent do the other public authorities than competition authorities enforce legislation targeting UTPs (which
authorities, which legislation)?
Ordinary judges enforce all other pieces of legislation.
c. Which role do other bodies than public authorities (sectoral bodies, mediation bodies, etc) play in enforcing instruments
addressing UTPs
Various private codes are being administered by sectoral bodies such as Assofranchising, Curia Mercatorum Mediation/Arbitration, the
Committee of wise men, Arbitration, Mediation, Subjects indicated in Statute of AssICC (cjemical commerce), etc.
d. Does enforcement by relevant authorities cover confidential complaints and ex officio investigations?
Confidential complaints are not allowed under any of the laws that deal with unfair B2B practices in Italy. All complaints must contain
specific indication of the personal identity of the person raising the complaint and of the action which the complaint refers to.
The NCA can act ex officio.
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 188
III. Recent developments
The legislation concerning B2B trading practices has for a long time been represented by non sector-specific provisions mostly belonging
to general contract law (especially Art. 1341-1342 Italian Civil Code, which are very important on a historical point of view, since they
exist since 1942 and represent the first European legislation addressing the issue of unfair standard contract terms) or to general
competition (see the prohibition of the abuse of dominant position in Art. 3 Law 10.10.1990, n° 287) or unfair competition law (see Art.
2598 ff. Civil Code on Unfair Competition Actions), dealing with unfair B2B trading practices which affect the public interest.
As mentioned above, although the general provisions mentioned above still maintain their importance in this field, the focus is significantly
shifting in the last years towards abandoning the prevailing competition law (or general contract law) approach and consequently adopting
more specific private law provisions directly addressing the issue of unfair trading practices in asymmetrical B2B relations. The most
important and recent examples of the shift of paradigm mentioned above are represented, on the contrary, by Art. 18-27 Consumer Code
(Consumer Code), as recently (2012) made applicable also to microenterprises (B2b), and Art.62 Law Decree 24.1.2012, n° 1.
As far as enforcement is concerned, the Italian legislator has acknowledged that administrative enforcement by the Antitrust Auhority is the
most efficient in practice.
Another important evolution of Italian law concerning Unfair Commercial Practices which is worth pointing out, is represented by the
emergence of small enterprises (microenterprises) as new protected parties. The recent enlargement of the scope of application of the
legislation governing unfair commercial practices in B2C relations (transposing the Unfair Commercial practices Directive 2005/29) also to
B2b transactions, in particular when one of the parties is a micro or small enterprise, is the most important example in this field. It is likely
that this legislative choice will open the way to the extension of other important protective rules to this new category of weak parties to a
contractual relation in the future.
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 189
Name of legislation/private
regulation
Type of
legislation
Enforcing Authority Ex officio investigations confidential
complaints
Frequency of
application
1 Lack of clarity in contract offer2 Lack of written contract
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 206
b. Is there specific legislation which aims at targeting UTPs in vertical relationships?
The Act on combating unfair competition [Ustawa o zwalczaniu nieuczciwej konkurencji] of 16 April 1993, Official Law Journal
[Dziennik Ustaw] of 1993, No 47, position 211; the consolidated text: Official Law Journal [Dziennik Ustaw] of 1993, No 153, position
1503. The Act came into force on 12 December 1993. The Act contains general reference to fair dealing (“good practices”) in art. 3 section
1 and the black list of unfair competition acts, divided into several particular provisions (mainly in its Chapter 2). It does not refer to any of
the other three elements. In particular, it does not differentiate between different types of business.
The Act pertains, in principle, to B2B unfair practices in all sectors of economy, regardless of the particular features of competing
entrepreneurs. It belongs to private law sector. This qualification is indicated mainly by the catalogue of sanctions for, which are based on
private law concepts and schemes, as well as the civil litigation as the way of their enforcement (art. 18 – 22).
c. Is there specific sectoral legislation for retail or food targeting UTPs?
No.
d. Are there private/sectoral instruments specific to UTPs (food, retail, etc)
The B2B private regulatory schemes are rather not popular and not significantly developed in the Polish practice. Most of the
documents of this kind – usually in the form of codes of conduct – pertain only to B2C relations. In practice they are used by business
actors towards consumers as an additional proof of high quality of goods/services and trustworthiness.
There is only one private regulation drafted domestically, that may be used both for B2B and B2C relations – the “Code of Ethics in
Advertising” of 4 June 2008. Due to the statement of the Polish Organisation of Franchisors, also the international “European Code of
Franchising Ethics” has been adopted by the members of this association.
e. To which extent does other instruments address selected UTPs (unfair competition law, contract law, other)?
The Civil Code [Kodeks cywilny] of 23 April 1964, Official Law Journal [Dziennik Ustaw] of 1964, No 16, position 93. The Act came into
force on 1 January 1965. It includes numerous provisions, which directly or indirectly aim at protecting the market against unfair market
practices. Most of these regulations apply both to B2B and B2C relations, although some of them pertains only to one of these categories.
The provisions of the Code relevant as the general scheme for UTPs are applicable to all sectors of economy. The relevant provisions of the
Civil Code may be divided into three main groups: (i) The general provisions protecting fairness and equality in legal relationships. (ii) The
particular provisions of contract law, related to unfair practices in detailed fields, e.g. measures against threatening or infringing the right to
the name of a firm; and (iii) tort law.
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 207
II. Enforcement of instruments addressing UTPs
a. Role of the competition authority (powers to enforce legislation addressing UTPs outside the scope of EU Competition Law)?
None.
b. To which extent do other public authorities than competition authorities enforce legislation targeting UTPs (which authorities,
which legislation)?
Ordinary judges are in charge of enforcement of basic civil code provisions.
c. Which role do other bodies than public authorities (sectoral bodies, mediation bodies etc) play in enforcing instruments
addressing UTPs
The Commission for Ethics in Advertising supervises compliance with the Code of Ethics in Advertising.
d. Does enforcement by relevant authorities cover confidential complaints and ex officio investigations?
No.
III. Recent developments
n.a.
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 208
Name of legislation/private
regulation
Type of
legislation
Enforcing Authority Ex officio investigations confidential
complaints
Frequency of
application
1 Lack of clarity in contract offer2 Lack of written contract
Decree-Law Nr. 166/2013
(unfair commercial practices)
B2B (with
specific rules for
agri-food)
ASAE Yes No Too early to say
Law Nr. 19/2012 (Competition
Law)
CL (B2B) NCA No No Uncommon
4 Liability disclaimers Decree-Law Nr. 446/85 of
25/10 (unfair contractual
terms), sec. II (B2B relations)
B2B Judge No No Uncommon
5 Unilateral modification clauses Decree-Law Nr. 446/85 of
25/10 (unfair contractual
terms), sec. II (B2B relations)
B2B Judge No No Uncommon
6 Terms unreasonably imposing or
shifting risks
Decree-Law Nr. 166/2013
(unfair commercial practices)
B2B (with
specific rules for
agri-food)
ASAE Yes No Too early to say
7 Unfair use of confidential information
8 Unfair use of confidential information
after contract expiry9 Unfair breaking off of negotiation
10 Unfair contract termination Law Nr. 19/2012 (Competition
Law)
CL (B2B) NCA No No Uncommon
11 Refusal to negotiate Decree-Law Nr. 166/2013
(unfair commercial practices)
B2B (with
specific rules for
agri-food)
ASAE Yes No Too early to say
PORTUGAL
3 Abuse of economic
dependence/bargaining power
I. General coverage of core unfair trading practices by different instruments
Unfair trading practices (UTPs) in Portugal are addressed in four legal instruments: (i) Law No 19/2012 of 8 May, establishing the new
legal framework for competition; (ii) Decree-Law No 370/93 of 29 October, which establishes the legal framework on unfair commercial
practices (and was recently amended by DL 166/2013, see below); (iii) Decree-Law No 446/85 of 25 of October, which establishes the
legal regime governing general contract terms; and (iv) Decree-Law Nr. 62/2013 of 10 May on combating late payment on commercial
transactions.
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 209
In Portugal there are two private regulation instruments addressing specific to UTPs: (i) The Code of Commercial Good Conduct; (ii) and
the Monitoring Platform of Relations in Agro-business Chain (PARCA). A new Code of Commercial Good Conduct was signed
between the APED and the Confederation of Portuguese Farmers (CAP) in April 2013.
A new Decree-Law on unfair commercial practices was adopted in December 2013 (Decree-Law nº 166/2013 of 27 December). Article 7
of the Decree-Law considers as UTP i.a. the following: Imposing on a counter-party the impossibility of selling to any other company at a
lower price; Imposing/obtaining disproportionate payments or other terms; requesting payments in exchange for a promotion; and the
imposing of retroactive changes in the contract. These broadly cover some of our selected UTPs, from the abuse of superior bargaining
power to the imposition of unilateral modification clauses, and terms unreasonably shifting commercial risk. The new law also carries
specific provisions for the agri-food sector, specifically when the supplier is a micro- or a small enterprise. UTPs mentioned are: (i)
returning or rejecting products without objective reasons; (ii) imposing discounts on the purchase price; (iii) imposing penalties in case the
expected volume of sales is not reached; (iv) requesting compensation of costs related to consumer complaints (unless the complaint was
due to the supplier’s negligence); and requesting various other contributions and payments. All these are terms that unreasonably shift
commercial risk onto the small supplier.
a. To what extent does competition law address UTPs beyond the scope of EU competition law (articles 101 and 102 TFEU)
The Portuguese competition Law (Law No 19/2012) follows closely the EU competition law by forbidden collusive practices (vertical
and/or horizontal agreements) and the abuse of dominant position that restricts or may restrict significantly the competition in the relevant
market. However, Law No 19/2012 goes beyond the scope of EU competition law (Articles 101 and 102 TFEU) by prohibiting the abuse
of economic dependence. The abuse of economic dependence occurs when one or more undertakings abuse the economic dependence
under which any of its suppliers or customers may find itself as a result of the fact that any equivalent alternative is not available, to the
extent that such a practice affects the way the market or competition operate. Interpreting the rules regarding abuse of economic
dependence, one comes to the conclusion that the prohibition of abuse of economic dependence aims at protecting suppliers or customers
(including consumers), by limiting the exercise of buyer or supplier power. One of the rule objectives, namely when it forbids the
termination of commercial relations, is to keep the market open for those market players which, for some reason, are so dependent on an
undertaking that an equivalent alternative is not available. Therefore, the rule has an influence on market access. The prohibition of the
abuse of economic dependence may involve the prohibition of the following UTPs: (i) discriminatory prices or conditions, (ii) limiting
production, markets or technical development to the detriment of consumers, (iii) tying or bundling, (iv) unfair prices or conditions, (v) and
unfair break in commercial relations.
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 210
b. Is there specific legislation which aims at targeting UTPs in vertical relationships?
The Portuguese legislation addressing UTPs apply to all B2B relations: relations between competitors (horizontal relations) and relations
between market players operating in different stages of the chain (vertical relations). However, the prohibition of the abuse of economic
dependence by the Portuguese competition law clearly protects the suppliers and other customers from the buyer power.
c. Is there specific sectoral legislation for retail or food targeting UTPs?
There is not specific sectoral legislation in Portugal addressing selected UTPs in the retail or food chain.
d. Are there private/sectoral instruments specific to UTPs (food, retail, etc)
As mentioned above in Portugal there is two private instruments specific to UTPs: the Code of Commercial Good Conduct and the
Monitoring Platform of Relations in Agro-business Chain (PARCA).
The Code of Commercial Good Conduct (1997) applies to general retail trade and it was created because of the difficulties felt in the
commercial relationship between producers/suppliers and large retailing. The Code does not include an explicit black list of B2B prohibited
UTPs. It sets a number of general principles, rules of commercial dealing and procedures from which one may elicit what would be
considered unfair B2B trading practices. The general principles stated in the Code are meant to govern the commercial relations between
producer and retailers. The principles of transparency, non-discrimination and reciprocity aiming at safeguarding a contractual equilibrium
between the contracting parties and to limiting the exercise of bargaining power. In 23rd
April 2013 a new Code of Commercial Good
Conduct was signed between APED and CAP.
The PARCA’s mission is to promote the analysis of relations between production, transformation and distribution of agricultural products,
so as to foster equity and equilibrium in food supply chain. PARCA has already discussed and contributed to the revision of Decree-Law
No 118/ 2010 and the revision of Decree-Law No 370/93 on unfair commercial practices, which occurred with Decree-Law nº 166/2013 of
27 December.
e. To which extent does other instruments address selected UTPs (unfair competition law, contract law, other)?
The legal regime governing unfair commercial/trading practices is contained in the Decree-Law No 370/93. This unfair trade law applies to
all economic sectors and prohibits unfair trading practices in B2B and/or B2C relations. It contains a black list of prohibited practices,
covering the unfair termination of a commercial relationship, unfair transference of risk and territorial supply constraints.
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 211
The Decree-Law No 446/85 establishes the legal regime governing general contract terms (commonly referred to as ‘adhesion contracts’).
Despite its emphasis on consumer protection it contains specific legal provisions regarding B2B relations (section II –Articles 17 to 19).
The Decree-law 446/85 distinguishes two types of unfair contractual terms: (i) totally forbidden terms (article 18) and (ii) relatively
forbidden terms (article 19). Whereas the former are immediately forbidden, meaning that their prohibition is not depending on a judicial
examination and decision, the later will be forbidden in regard to the standard business framework, which will be examined in each
concrete case by the court. The law also contains a general prohibition of general contract terms that are contrary to good faith (article 15).
II. Enforcement of instruments addressing UTPs
a. Role of the competition authority (powers to enforce legislation addressing UTPs outside the scope of EU Competition Law)?
The enforcement of Law No 19/2012 is competence of the Portuguese Competition Authority and the Civil Court. In the case of abuse of
economic dependence the abuse party can file a claim to the Portuguese Competition Authority. However, the competition authority may
also initiate ex officio proceedings. In the case of infringements of article 12 of the Portuguese Competition Law the Portuguese
Competition Authority can impose fines and order injunctions. The national competition authority can also conduct settlements
proceedings during the investigative or the prosecution phases.
In addition, the breach of article 12 could also lead to the award of damages in the civil courts (article 283 of the Portuguese Civil Code)
and contractual terms that breach Law No 19/2012 are considered null and void (Articles 280 and 294 of the Portuguese Civil Code).
b. To which extent do other public authorities than competition authorities enforce legislation targeting UTPs (which authorities,
which legislation)?
Decree-Law nº 166/2013 of 27 December 2013 establishes that it is up to ASAE to monitor, conduct proceedings and sanction the
infringement of the stipulations laid down by the Decree-Law. In a joint public communication of 27 December 2013, ASAE and NCA
have informed that all proceedings pending at the NCA will be transferred to ASAE until the end of January.
The judicial civil courts are competent for the enforcement of Decree-Law No 446/85. General contract terms that are forbidden by
Decree-Law No 446/85 are null and void. The invalidity or lack of legal effects can be enforced by the Portuguese Civil Courts, ex officio
or following a claim. An injunction procedure, aimed at prohibiting the use or recommendation of an unfair general term is also available.
The injunction procedure does not require the actual inclusion of the unfair contract terms in specific contracts. General contract terms
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 212
drafted for future use, as long as prohibited by law, may be prohibited by judicial decision within an injunction.119 The court can also
impose periodic penalties payments (astreintes), if the losing defendant does not comply with the obligation to abstain from using or
recommending those general contract terms that were mandated prohibited.
c. Which role do other bodies than public authorities (sectoral bodies, mediation bodies etc) play in enforcing instruments
addressing UTPs
The Code of Commercial Good Conduct (1997) does not establish any sanctions or remedies for deviance from its principles and rules.
Nonetheless, the Code establishes a Monitoring Committee that may issue recommendations/warnings that are communicated to the
signing parties, who are responsible for the dissemination amongst their members.
The new Code of Commercial Good Conduct (April 2013), establishes in great detail the ways in which the Code is monitored and
enforced. An Ombudsman is competent to issue recommendations on questions involve the application and compliance with the code. If
the parties do not abide to the recommendation or fails to issue a recommendation in the required deadline, any of the parties involved can
take the case to an Arbitration Court. The parties can appeal from the decisions of the Arbitration Court to the Lisbon Court of Appeals.
d. Does enforcement by relevant authorities cover confidential complaints and ex officio investigations?
Decree-Law nº 166/2013 empowers ASAE to deal with enforcement. ASAE can act ex officio, but no mention is given of the possibility to
receive confidential complaints.
III. Recent developments
A special attention has been given by the Portuguese Competition Authority and other public and private authorities to the UTPs in the
retail and food sector.
In the “Final Report on Commercial Relations between the Large Retail Groups and their Suppliers” published by the Portuguese
Competition Authority in 2010, the competition authority reported the existence of some trade practices of large retail groups that may
seem to raise problems in terms of the contractual relations between distributors and suppliers, which are not covered neither by the
competition law nor by other existing legislation addressing UTPs. In the same report, the Competition Authority made a recommendation
119
The entities that are entitled to bring an injunction procedure are the following: (i) representative consumer protection associations; (ii) trade unions, professional
associations and industry associations legally incorporated and within their competences; (iii) the Public Prosecution, ex officio, or via the ombudsman, or via a
reasoned request of any interested person.
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 213
to the government to consider setting up a committee responsible to draw up and present proposals, focusing in particular on those areas in
which detected practices show an imbalance between the parties in their commercial relations: (i) the unilateral imposition of terms and
conditions; (ii) discounts and related mechanisms; (iii) penalties; and (iv) payment terms. This recommendation led to the creation of
PARCA. In the report the Portuguese Competition Authority also refers that the “credibility and efficacy of the 1997 Code of Commercial
Good Conduct, depends not only on the continuous evaluation and monitoring of the Code’s application, but also on the creation of an
arbitration and dispute resolution mechanism whose decisions are binding to the parties.”120 The problems of enforceability of the 1997
Code of Commercial Good Conduct and the necessity to create a new Code of Commercial Good Conduct were also acknowledged by
PARCA and on the report on ‘Large distribution and national production”121 from the work group created in 2012 within the Portuguese
Parliament – namely within the Committee for Economics and Public Works – set up to analyse the commercial relations between the
production, transformation and distribution sectors of national production. In 23rd
April 2013 a new Code of Commercial Good Conduct
was signed between APED and CAP. One of the main distinctive issues of this new 2013 Code, when compared to the one signed in 1997
between CIP and APED, is that it establishes in great detail the ways in which the Code is monitored and enforced.
Moreover, as already mentioned, Decree-Law No. 370/93 was finally amended by Decree-Law nº 166/2013 of 27 December 2013. The
main changes are the following:
1) Substantial increase of the fines in case of infringement of the provisions regarding unfair commercial practices (but fines are
dependent on the size of the infringer;
2) Development of the concept of unfair business practices, specifically identifying some practices considered unfair, particularly
retroactive changes in contracts and the imposition of conditions by unilateral decision;
3) Granting to administrative authorities the power of imposing precautionary measures and penalty payments;
4) Transfer of the responsibility for investigating cases of contravention from the Competition Authority to the ASAE.
5) Explicit mention of the possibility to adopt self-regulation agreements containing provisions which derogate from the provisions of the
Decree-Law, subject to Government approval.
120
Final Report on Commercial Relations between the Large Retail Groups and their Suppliers, by the Portuguese Competition Authority, 2010, p. 22).
121 The work group report on ‘Large distribution and national production’ by the Committee for Economics and Public Works, 27 February 2013.
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 214
Name of legislation/private
regulation
Type of
legislation
Enforcing Authority Ex officio investigations confidential
complaints
Frequency of
application*
1 Lack of clarity in contract offer2 Lack of written contract
Law on Competition, Nr.
21/1996 Art 6.1.f
CL/B2B NCA No No Uncommon
Law on Food Marketing, Nr.
321/2009
FD National Authority for
Consumer Protection
Yes (both authorities) No (both
authorities)
Uncommon
4 Liability disclaimers5 Unilateral modification clauses Law on Food Marketing, Nr.
321/2009
FD National Authority for
Consumer Protection
Yes (both authorities) No (both
authorities)
Uncommon
6 Terms unreasonably imposing or
shifting risks7 Unfair use of confidential information
8 Unfair use of confidential information
after contract expiry9 Unfair breaking off of negotiation
Law on Competition, Nr.
21/1996
CL/B2B NCA No No Uncommon
Law on Food Marketing, Nr.
321/2009
FD National Authority for
Consumer Protection
Yes (both authorities) No (both
authorities)
Uncommon
11 Refusal to negotiate
3 Abuse of economic
dependence/bargaining power
10 Unfair contract termination
ROMANIA
I. General coverage of core unfair trading practices by different instruments
The most important provisions on UTPs in Romania are found in the competition law (which contains provisions on abuse of economic
dependence at art. 6(1)(f)) and in the Law on food marketing, n. 321/2009.
a. To what extent does competition law address UTPs beyond the scope of EU competition law (art 101 and 102 TFEU)?
The Law 21 of April 1996 (Competition Law) does not include a specific definition of UTPs. Article 6(1)(f) prohibits conducts whereby
an undertaking exploits “the economic dependence of another undertaking vis-à-vis a similar undertaking or undertakings that does not
have an alternative solution under equivalent conditions, as well as breaking contractual relations solely because a partner refuses to accept
certain unjustified commercial conditions”. The provision covers all sectors and it is designed to protect trade partners. Recent amendments
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 215
raised some pending interpretative issues, but it appears clear that the provision should be understood as prohibiting the exploitation of the
situation of economic dependence, namely, where non-dominant undertakings may depend on a dominant undertaking and (1) the former
do not have an alternative solution; for example, in the case of a refusal to supply or to continue supplying an existing business partner; or
(2) a refusal to accept unjustified commercial conditions. In practice, the provision has limited relevance and in fact there have been fewer
than 10 cases on abuse of economic dependence to date.
An Unfair Competition Law has been adopted already in 1991 (Law no.11/91), and was later amended in 2007 to transpose the unfair
commercial practices directive. However, it mostly deals with horizontal issues and employer-employee relations, which makes it
inapplicable to UTPs in the retail chain.
b. Is there specific legislation which aims at targeting UTPs in vertical relationships?
Law 321/2009 applies to legal and natural persons that carry marketing activities with food products. It provides that the commercial
relations between suppliers and distributors are based on a contract that is concluded by the parties and that complies with the provisions of
the applicable legislation and of the Law 321/2009. Therefore, Law 321/2009 covers specifically the food sector. The law incorporates a
previous code of practice, which was insufficiently enforced according to the competent authority. One year after the entry into force of the
law, the national authority found some recurring practices, mostly referred to the imposition of disproportionate conditions. But overall, the
impression was that the effectiveness of the law is low (see Romanian senate, contribution to the consultation on the Green Paper).
Article 4 of the law states that “it is prohibited to any trader to request and collect payments not directly related to the operation of sale and
not included in the purchase price”. In addition, it is prohibited for any retailer to request and collect payment from the provider of services
related to expanding distribution network operator, equipped the merchant's sales and operations and events to promote activity and picture
7 Unfair use of confidential information Act Nr. 513/1991 Coll.
Commercial Code
UC judge No No Uncommon (but
settlements are
frequent)
8 Unfair use of confidential information
after contract expiry
Act Nr. 513/1991 Coll.
Commercial Code
UC judge No No Uncommon (but
settlements are
frequent)
9 Unfair breaking off of negotiation10 Unfair contract termination Act No. 362/2012 on UTPs
related to food
FD The Ministry of Agriculture and
Rural Development)
Yes No Too new
11 Refusal to negotiate
SLOVAKIA
I. General coverage of core unfair trading practices by different instruments
In Slovakia, legislation on unfair competition and specific legislation on the food sector are the most important legal sources for what
concerns UTPs in the retail (food) chain. The existing provisions are complemented by several private regulatory schemes in the form of
codes of conduct. Overall this leads to a fairly comprehensive degree of coverage of the selected UTPs, although important practices such
as the lack of written contracts and the stipulation of ambiguous contract terms are not fully addressed.
a. To what extent does competition law address UTPs beyond the scope of EU competition law (Articles 101 and 102 TFEU)?
No extent. Competition law follows the scope of EU legislation.
b. Is there specific legislation which aims at targeting UTPs in vertical relationship?
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 219
The Commercial Code (Section 44) includes general clause of unfair competition which can be considered the most important and
effective legal instrument of protection against unfair trading practices (unfair competition). Almost all unfair trading practices can be
considered unfair under this general clause. The general clause states: “Unfair competition means such conduct in economic competition,
which is in conflict with good competitive practices and which may cause harm to other competitors or consumers. Unfair competition is
prohibited.“
Apart from the general clause the Commercial Code stipulates these particular UTPs: (i) misleading advertising (ii) misleading designation
of goods and services (iii) conduct contributing to mistaken identity (iv) parasitic use of goodwill (v) bribery (vi) disparagement (vii)
violation of a business secret (viii) endangering the health of others and the environment (ix) unfair contractual condition (Section 369d)
(x) unfair business practice (Section 369d).
c. Is there specific sectoral legislation or for retail or food targeting UTPs?
Law 362/2012 on unfair trading practices related to food imposes conditions intended to prevent chain stores from abusing their
dominant economic position by imposing one-sided terms on economically weaker parties. This includes a requirement that the period for
payment of the purchase price of foodstuffs may not end more than 30 days from receipt of the invoice, or more than 45 days after delivery
of the goods. As well as a set of compulsory conditions, there is also a further set of invalid practices (a total of 44 UTPs), including:
Paying the customer a reward for including foodstuffs in its register of suppliers
Paying the customer a reward for including foodstuffs in its records of products sold
Paying the customer a reward for promoting it or its promotional events without an adequate consideration
Paying the customer additional compensation in the event that foodstuff sales exceed estimates
Paying the customer a reward for it to conduct a market survey
Paying the customer a reward of more than 3% of the customer's income for placing foodstuffs in a certain position on the
customer's premises, for sales support activities or use of the customer's distribution network
Imposing controls on the supplier's costs
Giving the customer a right to return or exchange foodstuffs without giving a reason
Preventing suppliers from being identified on their foodstuffs
Requiring additional performance after receiving the foodstuffs or reducing the agreed price for them
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 220
Applying discriminatory business conditions towards different suppliers performing the same obligation
Seeking price guarantees lasting longer than 3 months
Requiring the debtor’s consent to its assignment of receivables
Imposing inadequate penalties for its contractual non-compliance
Imposing obligations on the supplier that are unrelated to the foodstuffs being supplied
New and existing contracts which do not comply with the new conditions after 1 January and 28 February 2013 respectively may attract
penalties ranging from €1,000 to €300,000, with repeat penalties for continued non-compliance.
d. Are there private/sectoral instruments specific to UTPs (food, retail, etc)
There is no private regulatory scheme that directly applies to our selected UTPs.
The Ethical Principles of Advertising Practice Valid in the Slovak Republic (Code of Ethics) are based on the ICC code on
advertising. This Code of Ethics was adopted by The Slovak Advertising Standards Council and this council is member to the European
Advertising Standards Alliance (EASA).
Also some other self-regulation instruments were issued on the basis of international self-regulation instruments regulating certain areas of
business. For example the Code of Ethics for franchising issued by the Slovak Franchise Association was worked out in compliance with
European Code of Ethics for Franchising issued by the European Franchise Federation.
e. To which extent does other instruments address selected UTPs (unfair competition law, contract law, other)?
None.
II. Enforcement of instruments addressing UTPs
a. Role of the competition authority (powers to enforce legislation addressing UTPs outside the scope of EU Competition law)?
No role.
b. To which extent do the other public authorities than competition authorities enforce legislation targeting UTPs (which
authorities, which legislation)?
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 221
If a competent administrative authority the Ministry of Agriculture and Rural Development detects violations of Law 362/2012, it begins
the administrative proceedings against the offender and the only remedy available is to impose a pecuniary fine to the offender, often
together with setting a time limit for the removal of disproportionate term.
c. Which role do other bodies than public authorities (sectoral bodies, mediation bodies, etc) play in enforcing instruments
addressing UTPs
No role.
f. Does enforcement by relevant authorities cover confidential complaints and ex officio investigations?
Confidential complaints are admissible only under the Act on Protection of Economic Competition (competition law), although this
possibility is not expressly stated in the act. The confidential complaint can regard all matters regulated by this act and should be directed to
the Antimonopoly Office of the Slovak Republic.
There is no possibility of confidential complaints under the Commercial Code (unfair competition, contract law) due to civil law mode of
enforcement. Every suit to civil courts should include identification of the person who submits it.
Also, no confidential complaint is possible under Law 362/12 on UTPs in the food sector. The administrative proceeding under this acts
is regulated by the general administrative procedure act (the Act on Administrative Procedure) and this act does not admit confidential
complaints. The ministry of Agriculture can act ex officio in the enforcement of this law.
III. Recent developments
N.a.
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 222
Name of legislation/private
regulation
Type of
legislation
Enforcing Authority Ex officio investigations confidential
complaints
Frequency of
application
1 Lack of clarity in contract offer2 Lack of written contract Code of conduct among
stakeholders in the Food
(grocery) Supply Chain, 2011
PR Voluntary code monitored by a
special committee
3 Abuse of economic
dependence/bargaining power
Code of conduct among
stakeholders in the Food
(grocery) Supply Chain, 2011
PR Voluntary code monitored by a
special committee
4 Liability disclaimers5 Unilateral modification clauses Code of conduct among
stakeholders in the Food
(grocery) Supply Chain, 2011
PR Voluntary code monitored by a
special committee
6 Terms unreasonably imposing or
shifting risksProtection of Competition
Act, Nr. 18/1993
UC Market inspector Yes Yes Uncommon
Code of conduct among
stakeholders in the Food
(grocery) Supply Chain, 2011
PR Voluntary code monitored by a
special committee
Protection of Competition
Act, Nr. 18/1993
UC Market inspector Yes Yes Uncommon
Code of conduct among
stakeholders in the Food
(grocery) Supply Chain, 2011
PR Voluntary code monitored by a
special committee
9 Unfair breaking off of negotiation10 Unfair contract termination Protection of Competition
Act, Nr. 18/1993
UC Market inspector Yes Yes Uncommon
11 Refusal to negotiate
SLOVENIA
7 Unfair use of confidential information
8 Unfair use of confidential information
after contract expiry
II. General coverage of core unfair trading practices by different instruments
Slovenian legislation only covers part of the selected UTPs identified in the Green Paper, Absence of legislation on abuse of economic
dependence ends up limiting the ability of the legal system to capture the lack of written contracts, ambiguous contract terms and
retroactive contract changes. The remaining UTPs are covered mostly through unfair competition law enforced by the national
competition authority and by market inspectors; and through private regulation in the food sector.
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 223
Unfair contract termination is covered by the Protection of Competition Act, which deals with unfair competition. It is not part of the
Prevention of Restriction of Competition Act, which contains provisions governing antitrust law. The Protection of Competition Act in
the third paragraph of Article 13 provides that unjustified non-compliance or contract termination with certain undertaking, in order to
conclude the same or similar contract with another undertaking, should be deemed as unfair competition (original wording: neupravičeno
nei polnjevanje ali ra diranje pogodbe s kakšnim podjetjem, da bi se sklenila enaka ali podobna pogodba z drugim podjetjem).
a. To what extent does competition law address UTPs beyond the scope of EU competition law (Articles 101 and 102 TFEU)?
Slovenian Protection of Competition Act contains provisions on unfair competition, and only the latter are applicable to UTPs regardless
of market conditions (e.g. dominance of the stronger party in the relevant market).
b. Is there specific legislation which aims at targeting UTPs in vertical relationship?
The first paragraph of Article 13 of the Protection of Competition Act represents a general clause defining unfair competition as an act
which is contrary to good business practices and causes or is likely to cause damage to other participants in the market. Alongside with the
general clause third paragraph of Article 13 sets out a non-exhaustive list of prohibited commercial practices. Thus, there is a general
reference to the principle of good faith and fair dealing and a non-exhaustive list of prohibited practices.
The Protection of Competition Act provides that unfair competition is the activity harming other stakeholders in the market. Further, in
giving examples of unfair practices in the non-exhaustive list in the third paragraph of Article 13, it explicitly lists practices which harm
consumers, competitors, or acts which might cause confusion in the market. Thus, general clause in Article 13 has the objective to protect
all participants in the market from the unfair competition. It applies to all sectors of the economy.
c. Is there specific sectoral legislation or for retail or food targeting UTPs?
No.
d. Are there private/sectoral instruments specific to UTPs (food, retail, etc)
National instruments of private regulation are used to address unfair trading practices in B2B relations as well. Such private regulation is
found for example in the Code of conduct among stakeholders in the Food (grocery) Supply Chain (2011) and in the Slovenian Code
of Advertising Practice (the 4th
edition, 2009). As regards the emergence of the private regulation in terms of initiative and promotion,
the initiative is left to the private actors, whereas the promotion is sometimes in the hands of the public actors as well. The private
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 224
regulation in Slovenia can be relevant for legislation as a reference material within the framework of existing legislation, e.g. through
reference to usages and practices.
e. To which extent does other instruments address selected UTPs (unfair competition law, contract law, other)?
No extent.
II. Enforcement of instruments addressing UTPs
a. Role of the competition authority (powers to enforce legislation addressing UTPs outside the scope of EU Competition law)?
The competition authority enforces the rules contained in the Protection of Competition Act, including those on unfair competition.
However, as will be recalled below, it does not have powers to act ex officio, not can accept confidential complaints if not within the remit
of antitrust rules.
b. To which extent do the other public authorities than competition authorities enforce legislation targeting UTPs (which
authorities, which legislation)?
Anonymous complaints are possible pursuant to the Inspection Act (Official Gazette no. 56/2002, amendments published in Official
Gazettes nos. 26/2007 and 43/2007, Zakon o inšpekcijskem nadzoru, ZIN). This Act is applicable for the inspectorates working in the field
of competition law, unfair competition and consumer law. An inspector has to consider anonymous reports pursuant to the second
paragraph of Article 24 of the Inspection Act, unless the circumstances give rise to suspicion that the reports are false or untrue. These
reports are not subject to limitations with respect to specific violations only. The anonymous reports should be directed to the competent
inspector (e.g. market inspector). In any case, even if the report is not anonymous, the inspector is obliged to protect the secrecy of the
source pursuant to Article 16 of the Inspection Act (and e.g. also competition authority pursuant to Article 17 of the Prevention of
Restriction of Competition Act if the person so requests).
c. Which role do other bodies than public authorities (sectoral bodies, mediation bodies, etc) play in enforcing instruments
addressing UTPs
The Code of conduct among stakeholders in the Food (grocery) Supply Chain provides for private enforcement. Mediation is
specifically provided as the possible mechanism recognised by the stakeholders.
d. Does enforcement by relevant authorities cover confidential complaints and ex officio investigations?
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 225
The laws that deal with unfair B2B practices in Slovenia do not contemplate the possibility of confidential complaints. Nevertheless,
anonymous reports are possible pursuant to the Inspection Act (Official Gazette no. 56/2002, amendments published in Official Gazettes
nos. 26/2007 and 43/2007, Zakon o inšpekcijskem nadzoru, ZIN). This Act is applicable for the inspectorates working in the field of
competition law, unfair competition and consumer law.
The national competition authority does not have powers to launch ex officio investigations in areas that fall outside the remit of antitrust
law. It has power to decide only on matters for which it is competent under the Protection of Competition Act and pursuant to the
procedure laid down in this Act, as provided by Article 15. A public authority that has powers to launch ex officio investigations to pursue
unfair B2B trading practices in the retail chain is the Market Inspectorate of the Republic of Slovenia. The Market Inspectorate operates,
inter alia, with the use of the laws and regulations relating to consumer protection, unfair B2C commercial practices, trade, consumer loans
and unfair competition.
III. Recent developments
Despite the fact that there are rules on unfair B2B practices governing this area, there is growing number of breaches of business
agreements in the current crisis when businesses are facing financial problems, especially due to an unbalanced bargaining position.122 It is
deemed that existing rules do not significantly affect the allocation of value along the retail supply chain in practice.123
122 On these breaches, especially in relation to payment deadlines, see Bratina Tanja: (Ne)pošteno ravnanje ponudnikov pri določanju ponudbene cene, in: Podjetje in
delo (2012) 4, p. 459; Hrastnik Blaž: Ureditev neposrednih plačil podizvajalcem, in: Podjetje in delo (2011) 7, p. 1135; dr. Možina Damjan: Meje pogodbene
svobode pri dogovorih o plačilnih rokih in posledicah plačilne zamude, in: Podjetje in delo (2011) 7, p. 1101; dr. Možina Damjan: Pravo EU in plačilna nedisciplina
v Sloveniji, in: Pravna praksa (2011) 11, p. 9
123 Especially pursuant to the opinion of the representative of the Association of Small Traders (under the auspices of Slovenian Chamber of Commerce).
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 226
Name of legislation/private
regulation
Type of
legislation
Enforcing Authority Ex officio investigations confidential
complaints
Frequency of
application
1 Lack of clarity in contract offer Law 7/1998
General Conditions Act Article
7 letter b)
O Courts No No Common
2 Lack of written contract Law 12/2013 on measures to
improve the functioning of
the food chain
FD Administration General del
Estado
yes yes too new
Law 3/1991, Unfair
Competition Act – Article
16(2)
UC Commercial Courts No No Common
Law 12/2013 on measures to
improve the functioning of
the food chain
FD Administration General del
Estado
yes yes too new
4 Liability disclaimers5 Unilateral modification clauses Law 3/1991, Unfair
Competition Act – Article
16(3)b
UC Commercial Courts No No Common
Law 12/2013 on measures to
improve the functioning of
the food chain
FD Administration General del
Estado
yes yes too new
6 Terms unreasonably imposing or
shifting risksLaw 3/1991, Unfair
Competition Act – Article 13
UC Commercial Courts No No Common
Law 12/2013 on measures to
improve the functioning of
the food chain
FD Administration General del
Estado
yes yes too new
8 Unfair use of confidential information
after contract expiry
Law 3/1991, Unfair
Competition Act – Article 13
UC Commercial Courts No No Common
9 Unfair breaking off of negotiation Article 1902 Civil Code O Courts no no
10 Unfair contract termination11 Refusal to negotiate
SPAIN
3 Abuse of economic
dependence/bargaining power
7 Unfair use of confidential information
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 227
I. General coverage of core unfair trading practices by different instruments
Spanish legislation provide for very extensive coverage of selected UTPs, mostly through the instrument of unfair competition law, and –
especially in the food sector – through an evolving mix of public and private sectoral regulation.
a. To what extent does competition law address UTPs beyond the scope of EU competition law (Articles 101 and 102 TFEU)?
No extent, since rules on abuse of economic dependence are not anymore under the remit of competition law, but rather apply in unfair
competition legislation.
b. Is there specific legislation which aims at targeting UTPs in vertical relationship?
The main piece of regulation is the Unfair Competition Act (UCA). In particular, Article art. 16.2 and 3 UCA prohibits the abuse of
economic dependence: it is deemed to be unfair the exploitation by a firm of a situation of economic dependence in which their business
customers or suppliers who do not have an equivalent alternative for the exercising of their activity may find themselves in. This shall be
assumed when a supplier, over the discounts and normal conditions, has to regularly grant his costumer other additional advantages that he
does not grant to similar purchasers (art. 16.2 UCA). Article 16.3 includes some examples of frequent abuses as the breach, even if it is
partial, of the commercial relationship without previous and precise written notice of, at least, 6 months, unless there has been important
breaches of the agreed conditions or circumstances of force majeure and obtaining, under threads of breach of the commercial
relationships, of the prices, of the payment conditions, terms of sales, additional charges and other commercial cooperation conditions,
which weren’t foreseen in the supply contract.
c. Is there specific sectoral legislation or for retail or food targeting UTPs?
Yes:
Since August 2013. Law 12/2013 addresses practices such as unilateral changes and unanticipated commercial payments (art. 12), the
provision of commercially sensitive information (art. 13), and the management of brands (art. 14). The Preamble of Act 12/2013 states
that the imbalance of bargaining power sometimes results “in potentially abusive trading practices and anti-competitive practices that
distort the market and have a negative effect on the competitiveness of the agro-food sector as a whole”. Accordingly, Article 4 states
that “business relationships subject to this Act shall be governed by the principles of balance and fair reciprocity between the parties,
contractual freedom, good faith, mutual interest, equitable sharing of risks and responsibilities, cooperation, transparency and respect
for free market competition.”
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 228
The Retail Trade Act (RTA) Ley 7/1996 includes regulation about unfair trading practices. The most part of the provisions of the law
are in connection with B2C trade as is the case of promotional sales, but few of them have relevance in a B2B context. The law
includes prohibitions about sales at loss (art. 14 RTA), payment to suppliers (art. 17 RTA), multi-level sales (art. 22 RTA), pyramid
scheme sales (art. 23 RTA), direct to consumer sales offering (art. 35 RTA), franchise retailing (art. 62 RTA) that have signification in
the B2B context and an administrative sanction system in articles 63 to 71 RCA. Provisions of RTA implies in some cases the
extension to B2B field of the application of the some of the prohibitions included in the Directive’s 29/2005 black list and transposed to
articles 19 to 32 UCA. These are the cases of article 24 UCA – extended by article 17 RTA- and 26 UCA – extended by article 22
RTA. The Act has as objectives protecting micro enterprises and small and medium enterprises from large distribution, protecting weak
party in contractual relationships, limiting the exercise of buyer power, and protecting suppliers in relation with strong large distribution
enterprises.
d. Are there private/sectoral instruments specific to UTPs (food, retail, etc)
Private regulation instruments, in particular Codes of Conduct are used as self-regulation source in Spain. These schemes in distribution
field are sector-specific and have not special provisions about cross border trade, foreign enterprises activities in Spain market, or on line
distribution. The Codes of Conduct are strict scrutinized by the competition authorities because it potential collusive effect.
We have studied two main pieces of self-regulation in distribution: the Código deontológico de la Asociación Española de Fabricantes y
Distribuidores de productos de Nutrición Enteral (Deontological Code of the Spanish Association of enteral nutrition products
manufacturers and suppliers); and the Código Español de Buenas Prácticas de Promoción de Medicamentos y de Interrelación de la
Industria Farmacéutica con los Profesionales Sanitarios (Spanish good practices code on medicine promotion and on interrelation of
pharmaceutical industry with health professionals.).
e. To which extent does other instruments address selected UTPs (unfair competition law, contract law, other)?
Civil Code, Commercial Code and General Conditions Act Ley 7/1998, de 13 de abril, sobre Condiciones Generales de la Contratación,
play also a role in this issue.
II. Enforcement of instruments addressing UTPs
a. Role of the competition authority (powers to enforce legislation addressing UTPs outside the scope of EU Competition law)?
Article 3 from the Competition Act (CA) allows the national – Comisión Nacional de la Competencia – and regional competition
authorities to exercise their powers to prosecute individual unfair competition behaviours, but only when they can be construed also as
restrictive agreements or concerted practice or abuses of dominance.
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 229
b. To which extent do the other public authorities than competition authorities enforce legislation targeting UTPs (which
authorities, which legislation)?
The General State Administration is empowered to enforce Law 12/2013 on the functioning of the food chain. It can act ex officio and
can protect the confidentiality of complaints.
c. Which role do other bodies than public authorities (sectoral bodies, mediation bodies, etc) play in enforcing instruments
addressing UTPs
The Association for the self-regulation of advertising plays a role in the mediation on advertising-related issues;
Law n. 12/2013 calls for the creation of an observatory on the food sector, which in turn will be tasked with the elaboration of a Code of
Practice. Title IV of the Act establishes the Food Supply Chain Observatory as a collegiate body attached to the Ministry of Agriculture,
Food and Environmental Affairs. This new body replaces the Food Price Observatory whose founding regulation is repealed by the new
law, and which assumes new duties related to the functioning of the food supply chain while continuing to exercise those related to food
prices. In particular, the Food Supply Chain Observatory will monitor, advise, consult, inform and study the functioning of the food supply
chain and food prices. It shall also inform the proposed Code of Good Business Practices in Food Procurement Contracting regulated under
the new law, disseminate it among chain operators and encourage them to sign on to it. It will likewise inform the results of its application
and, where appropriate, propose improvements or updates as necessary. It may also report breaches of the law it has detected in the
performance of its duties to the competent authorities.
d. Does enforcement by relevant authorities cover confidential complaints and ex officio investigations?
The General State Administration has both the power to collect confidential complaints and launch ex officio investigations under the
new law 12/2013, related to the food sector.
III. Recent developments
The key development is the enactment of Law n. 12 of 2 August 2013, which establishes a mix of public and private regulation as a means
to monitor the developments of the food sector and ensure a good functioning of the food chain.
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 230
Name of legislation/private
regulation
Type of
legislation
Enforcing Authority Ex officio investigations confidential
complaints
Frequency of
application
1 Lack of clarity in contract offer
2 Lack of written contract
3 Abuse of economic
dependence/bargaining power
4 Liability disclaimers
5 Unilateral modification clauses6 Terms unreasonably imposing or
shifting risks
7 Unfair use of confidential information
8 Unfair use of confidential information
after contract expiry9 Unfair breaking off of negotiation
10 Unfair contract termination
11 Refusal to negotiate
SWEDEN
I. General coverage of core unfair trading practices by different instruments
There is very limited coverage of the selected UTPs in Swedish legislation. There is widespread agreement that no legislation is needed.
a. To what extent does competition law address UTPs beyond the scope of EU competition law (Articles 101 and 102 TFEU)?
No extent.
b. Is there specific legislation which aims at targeting UTPs in vertical relationship?
Public regulation of unfair B2B trading practices is primarily to be found in the Marketing Practices Act of 2008. It can be described as
an amalgamation of the Directives 2005/29 and 2006/114, in which the provisions of Directive 2005/29, including the Black list, have been
made applicable also to B2B relations. The Marketing Practices Act functions as the Swedish Unfair Competition Act. Note in particular
that the General Clause in Article 5 of the 2005/29 Directive is applicable in Sweden also in B2B relations and so are the provisions in
Articles 8 and 9 of the 2005/29 Directive on Aggressive commercial practices.
c. Is there specific sectoral legislation or for retail or food targeting UTPs?
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 231
No.
d. Are there private/sectoral instruments specific to UTPs (food, retail, etc)
No.
e. To which extent does other instruments address selected UTPs (unfair competition law, contract law, other)?
Private regulation of unfair B2B trading practices plays a very substantial role in Sweden. Since many years, the base is the ICC Code on
Advertising and Marketing Communication Practices with its sub-codes. The ICC Code is regarded as well drafted and balanced.
II. Enforcement of instruments addressing UTPs
a. Role of the competition authority (powers to enforce legislation addressing UTPs outside the scope of EU Competition law)?
No role. The Competition Authority conducted in 2011 a major study of the Swedish food market, called Mat och marknad. Från bonde till
bord (Food and Market – From Farmer to Fork), in which the Competition Authority found that the major retail food chains treat small and
middle-sized food producers well and that there seems to be a growing market in Sweden for such producers as a complement to the big
actors in the field.
b. To which extent do the other public authorities than competition authorities enforce legislation targeting UTPs (which
authorities, which legislation)?
Very limited. When interpreting the general clause of the Marketing Practices Act the Swedish Market Court often cites the ICC Code and
uses it as the basic instrument for clarification of what is good commercial practice.
c. Which role do other bodies than public authorities (sectoral bodies, mediation bodies, etc) play in enforcing instruments
addressing UTPs
n.a.
III. Recent developments
n.a.
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 232
Name of legislation/private
regulation
Type of
legislation
Enforcing Authority Ex officio investigations confidential
complaints
Frequency of
application
1 Lack of clarity in contract offer Dutch Civil Code, entry into
force on 1 January 1992
O Judge No No Uncommon (but
settlements are
common)
2 Lack of written contract3 Abuse of economic
dependence/bargaining power
Dutch Civil Code, entry into
force on 1 January 1992
O Judge No No Uncommon (but
settlements are
common)
4 Liability disclaimers Dutch Civil Code, entry into
force on 1 January 1992
O Judge No No Uncommon (but
settlements are
common)
5 Unilateral modification clauses Dutch Civil Code, entry into
force on 1 January 1992
O Judge No No Uncommon (but
settlements are
common)
6 Terms unreasonably imposing or
shifting risks7 Unfair use of confidential information
8 Unfair use of confidential information
after contract expiry9 Unfair breaking off of negotiation Dutch Civil Code, entry into
force on 1 January 1992
O Judge No No Uncommon (but
settlements are
common)
10 Unfair contract termination11 Refusal to negotiate
NETHERLANDS
I. General coverage of core unfair trading practices by different instruments
In The Netherlands, coverage of selected UTPs outside competition law is fairly limited. Some of the practices, including unfair
termination and misleading advertising, are covered by general rules included in the civil code.
a. To what extent does competition law address UTPs beyond the scope of EU competition law (Articles 101 and 102 TFEU)?
No extent.
b. Is there specific legislation which aims at targeting UTPs in vertical relationship?
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 233
No. In the absence of specific legislation in Dutch law actions against unfair trading practices are mostly based on the general provisions of
the Dutch Civil Code or occasionally on the Dutch Competition Act. In addition, parties may invoke specific provisions of the Dutch Civil
Code which implement EU legislation on misleading and comparative advertising and unfair commercial practices. These instruments of
EU law have also had a direct influence on the content of private regulation in the Dutch Advertising Code.
c. Is there specific sectoral legislation or for retail or food targeting UTPs?
No.
d. Are there private/sectoral instruments specific to UTPs (food, retail, etc)
The Competition Act is backed up by instruments of self-regulation. Private parties use instruments of self-regulation (codes of conduct)
to guide the handling of and compliance with (certain provisions of) the Competition Act. A number of instruments of private regulation
seeking to address unfair trading practices have been developed at EU level and in the Netherlands. Many relate to competition law and
have the aim to guide the handling of and (thus ensure) compliance with competition law. Some of the issues mentioned in these
instruments might also be relevant for (vertical) B2B relations. As such, they in essence also police unfair practices through competition
law mechanisms, such as actions prohibiting the abuse of a dominant position.
Two instruments engage with unfair trading practices outside competition law: the ‘Vertical Relationships in the Food Supply Chain:
Principles of Good Practice’ and the Dutch Advertising Code.
e. To which extent does other instruments address selected UTPs (unfair competition law, contract law, other)?
General provisions on duress, fraud, breach of contract, mistake, good faith and unforeseen circumstances may offer relief to parties who
are harmed by unfair trading practices in the retail supply chain. The most common cases in which such provisions are invoked are those in
which a large business seeks to unilaterally change the terms of a contract or to unilaterally end a long-term distribution contract.
A stipulation in general conditions may be annulled if it is unreasonably onerous on the other party. Dutch legislation on unfair terms (as
laid down in Artt. 6:231-247 Dutch Civil Code) adopts a definition that is similar to the definition in Directive 93/13 on unfair terms. The
Dutch provisions on general terms and conditions contain grey and black lists that in principle apply to consumers only. Nonetheless, they
can have reflexive effect on small enterprises (as defined in article 6:235 of the Civil Code).
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 234
II. Enforcement of instruments addressing UTPs
a. Role of the competition authority (powers to enforce legislation addressing UTPs outside the scope of EU Competition law)?
The Dutch Authority for Consumers (Consumentenautoriteit) and the Dutch Competition Authority (NMa) together with the regulatory
authority for the telecom market (OPTA) have merged into a new overarching supervisory authority as of 1 April 2013. The new authority
is named the Authority Consumer and Market (Autoriteit Consument en Markt). Dutch law had mandated the Dutch Authority for
Consumers (Consumentenautoriteit) with the supervision of the enforcement of the Unfair Commercial Practices Directive. Besides
competences in administrative law the Authority is also competent to instigate a private law action if the interests of a collective of
consumers have been harmed by an unfair practice (artt. 2.5 and 2.6 of the Wet handhaving consumentenbescherming).
b. To which extent do the other public authorities than competition authorities enforce legislation targeting UTPs (which
authorities, which legislation)?
Civil code provisions are enforced by ordinary judges.
c. Which role do other bodies than public authorities (sectoral bodies, mediation bodies, etc) play in enforcing instruments
addressing UTPs
The Advertising Code Authority (ACA) is the Dutch body dealing with self-regulation of advertising. Media institutions producing
advertising messages are compulsorily affiliated with the ACA (artt. 2.92 and 3.6 Media Act 2008). Several other organizations, amongst
which the Dutch Consumers’ Association, are also (non-compulsorily) affiliated with the ACA.
III. Recent developments
MKB Service Desk has opened a ‘Buyer power Hotline’ for small and medium-sized enterprises (Meldpunt Inkoopmacht MKB) where
suppliers can report cases of strong buying power.
B2B UNFAIR TRADING PRACTICES IN THE RETAIL SUPPLY CHAIN
PAGE 235
Name of legislation/private
regulation
Type of
legislation
Enforcing Authority Ex officio investigations confidential
complaints
Frequency of
application
1 Lack of clarity in contract offer Groceries Code Adjudicator
Act 2013
FD Grocery adjudicator Yes Yes (but in this
case, no financial
penalty can be
imposed)
too new
2 Lack of written contract Groceries Code Adjudicator
STUDY ON UNFAIR B2B PRACTICES IN THE RETAIL SUPPLY CHAIN
Table of the stakeholders interviewed by the national experts
Country Stakeholders
Austria (AT) Austrian Trade Union Federation, Energie Control
Austria
Belgium (BE) Boerenbond – The Flemish Framers’ Association,
COMEOS
Bulgaria (BG) Bulgarian Retail Association, Bulgarian Modern
Trade Association, Bulgarian Fruit & Vegetable
Producers Association (FVPA)
Czech Republic (CZ) Federation of the Food and Drink Industry, Czech
Confederation of Commerce and Tourism
Germany (DE) Federal Ministry of Economics and Technology -
Division IB2 Competition- and Consumer Policy,
Chamber of Industry and Commerce (DIHK), The
Federation of German Food and Drink Industries
(BE), The German Retail Federation
Denmark (DK) The Danish Chamber of Commerce, The Danish Food
and Drink Federation, The Danish Association of
Suppliers, The Danish Association of Retailers
Estonia (EE) Estonian Trades’ Association, Association of
Estonian Food Industry
Spain (ES) The Agri-food Manufacturers Association-COAG,
The Distributors Association –ANGED,
Subdirectorate-General of the Food Chain Structure
Finland (FI) Finnish Food and Drink Industries’ Federation,
Central Union of Agriculture Producers and Forest
Owners, FCF
France (FR) Fédération des entreprises du commerce et de la
distribution, Fédération des entreprises et
entrepreneurs de France
Greece (GR) Institute of Retailer Consumer Goods, Federation of
Industries of Northern Greece, Chamber of
Commerce of Thessaloniki, Hellenic Association of
Pharmaceutical Companies
PAGE 259
Croatia (HR) The Croatian Chamber of Commerce (HGK), The
Croatian Employers Union (HUP), ATLANTIC
GRUPA, The Croatian Employers Union (HUP),
CROATIASTOČAR, Economic Interest Grouping
Hungary (HU) LRMI Local and Regional Monitoring Institute
Ireland (IR) Irish Farmers’ Association (IFA), Food and Drink
Industry Ireland (FDII)
Italy (IT) FEDERDISTRIBUZIONE
Lithuania (LT) Lithuanian Association of Small Entrepreneurs and
Traders, Association of Lithuanian Food Industry,
Lithuanian Association of Meat Processors
Latvia (LV) Latvian Food Retailers Association, Latvian
Federation of Food Enterprises, Latvian traders’
association
Portugal (PT) Associação Portuguesa de Empresas de Distribuição,
Portugese Confederation of Agricultural Co-
operatives and Agricultural Credit, FEDERACAO
DAS INDUSTRIAS PORTUGUESAS AGRO-
ALIMENTARES
Sweden (SE) The Swedish Trade Federation
Slovakia (SK) Ministry of Agriculture and Rural Development, The
Slovak Agricultural and Food Chamber, The Slovak
Chamber of Commerce and Industry
The United Kingdom (UK) Groceries Code Adjudicator
PAGE 260
ANNEX IV – COMPARATIVE LEGAL TABLES FOR
NATIONAL LEGISLATION
Methodological Caveat
The analysis herein reported has been developed on the basis of
information provided by our network of 28 legal experts, one for each
Member State.
It is important to note that the information was provided based on a
questionnaire (see Annex II), which was validated by the European
Commission, but which preceded the adoption of the Green Paper.
Accordingly, our experts have analyzed a much broader set of legislation
and private regulation, addressing a longer list of potential UTPs compared
to the ones included in the Green Paper. This means that our experts have
retrieved information on pieces of legislation that might be considered of
limited relevance now that the Green Paper has been adopted: these include
competition laws (even when falling within the scope of EU legislation),
laws on misleading advertising, various forms of contract and tort law.
For a more in-depth analysis of the types of UTPs identified in the Green
Paper, we advise the reader to consult in particular Section 3 in the main
text, in which we reconcile our findings with the categories of UTPs
identified in the Green Paper and provide a comparative analysis of the
coverage and modes of enforcement in the EU28. Also, Annex I to this
report provides a country-by-country analysis of the extent to which
Member States are able to address a list of selected UTP, representative of
the selected UTPs identified in the Green Paper.
PAGE 261
STUDY ON UNFAIR B2B PRACTICES
IN THE RETAIL SUPPLY CHAIN
ANNEX IV
LEGISLATION
PAGE 262
STUDY ON UNFAIR B2B PRACTICES IN THE RETAIL SUPPLY CHAIN
COMPARATIVE LAW UNIT
Rome /Trento, 6 February 2014
LIST OF TABLES
prepared by Fabrizio Cafaggi (EUI/University of Trento/SSPA Rome)
with the collaboration of Paola Iamiceli and Luana Bebber (University of Trento) on the basis of material collected by Paola Iamiceli, Luana Bebber and Anabela Brito (CEPS)
Comparative Tables on National Legislation
The tables included in this Annex and in the comments in the Report have been prepared on the basis of the information provided by the National Experts and submitted to them for revision and approval. Most but not all National Experts have been able to revise
and approve this document.
Our acknowledgment and gratitude go to each National Expert and to Cristina Macovei (College of Europe) for enabling and supporting our dialogue and interaction.
PAGE 263
Table of contents
1. List of examined legislation per country 2. List of examined private regulatory instruments per country
Part I: National legislation
I.A. Which areas of law are considered by MS when addressing UTP in B2B relations? 3. Type of legislation addressing unfair trade practices (UTPs) per area of law
a. Type of legislation (specific list per category) b. Type of legislation (summary table) c. Type of legislation (clustering)
4. Type of legislation addressing UTPs per area of law and law subject-matter a. Specific data table b. Summary table and clustering
5. Do UTPs addressed by legislation different from competition law (possibly) have competition law consequences?
I.B. To what extent have the 2006/114 and 2005/29 Directives been drivers for legislation addressing UTPs in B2B relations? Which areas of law have been interested by this transposition?
6. National legislation implementing the 2006/114 Directive 7. National legislation implementing the 2005/29 Directive and its possible application to B2B relations
I.C. What are objectives and scope of application of relevant legislation?
8. The stated objectives of relevant legislation a. Competition law b. Unfair competition law c. Other d. Summary tables
9. The possible distinction between large, medium, small and micro enterprises (critical) 10. B2B legislation only v. B2B and B2C legislation 11. Cross-sector v. sector-specific legislation 12. Specific legislation on retail trade
PAGE 264
I.D. How are unfair practices defined and identified by national legislation? 13. The use of general clauses and the one of black or grey lists 14. Does legislation address pre-contractual practices, unfair terms, practices in the course of contract execution, post-
contractual practices? 15. Do different areas of legislation address pre-contractual practices, unfair terms, practices in the course of contract execution
and post-contractual practices? a. General relevance b. The most relevant areas of law per each type of conducts/practices (to be filled by national experts) c. Competition law d. Unfair competition law e. Other type of legislation
16. Specific conducts addressed by relevant legislation within each category a. Pre-contractual practices b. Unfair terms c. Practices emerging in the course of contract execution d. Post-contractual practices e. Summary table f. Practices addressed by Green Paper g. Summary table of practices addressed by Green Paper
I.E. What is the mode of enforcement? 17. Public v. private enforcement 18. Public enforcement v. private enforcement: which authorities? 19. Public enforcement v. private enforcement per type of legislation
a. Public v. private enforcement: which authorities? Competition Law b. Public v. private enforcement: which authorities? Unfair Competition Law c. Public v. private enforcement: which authorities? Contract Law d. Public v. private enforcement: which authorities? Other type of legislation e. Summary table
I.F. What are the available remedies? 20. Available remedies per each country 21. Available remedies per country: public v. private enforcement
PAGE 265
22. Available remedies per country and type of conducts: public v. private enforcement 23. Available remedies and type of relevant legislation
a. Available remedies per country and type of relevant legislation. Competition Law b. Available remedies per country and type of relevant legislation. Unfair Competition Law, Contract Law and Other type of Legislation c. Available remedies per country and type of relevant legislation. Criminal Courts d. Available remedies per country and type of relevant legislation. Administrative Authorities (Competition Authorities and Government Agency) e. Available remedies per country and type of relevant legislation. Civil Court
24. Collective remedies and collective modes of enforcement
I.G. How are cases litigated?
25. Is litigation frequent? 26. Are pre-trial settlements frequent?
I.H. How are cross-border cases addressed?
27. Are litigants most often from different countries? 28. To what extent does legislation address UTPs in a private international law perspective?
PAGE 266
1. LIST OF EXAMINED LEGISLATION PER COUNTRY
Table 1. List of examined legislation per country
Countries Type of legislation List of examined Legislation per Country
Austria
COMP.
UNF. COMP.
OTHER
Competition Act
Act against Unfair Competition, Nr. 448/1984
Local Supply Act, Nr. 392/1977
Belgium
COMP.
OTHER
Law of 15 September 2006 on the Protection of Economic Competition
Loi du 6 avril 2010 relative aux pratiques du marché et à la protection du consommateur (Moniteur belge du
12 avril 2010), Artt. 95-99
Bulgaria COMP./UNF. COMP. Protection of Competition, Nr. 102/2008
Croatia
COMP.
OTHER
OTHER
OTHER
OTHER
Competition Act, Nr. 79/09, 80/13
Law on Obligatory Relations, Nr. 35/05, 41/08, 125/11,
Law on Trade, Nr. 87/08, 96/08, 116/08, 76/09, 114/11, 68/13
Law on Prohibited Advertising, Nr. 43/09
Law on Financing and Pre-Bankruptcy Settlement, Nr. 108/12, 114/12, 81/13
Cyprus
COMP.
COMP.
OTHER
Control of Concentrations between Enterprises, Law Nr. 22(I)/99
Protection of Competition Act, Nr. 13(I)2008
Control of Misleading and Comparative Advertising Act, Nr. 92(I)/2000
Czech Republic
COMP.
UNF. COMP.
OTHER
OTHER
Act Nr. 143/2001 Coll. on the Protection of Competition and on Amendment to Certain Acts
Act Nr. 513/1991 Coll. Commercial Code, Sec. 44-55
Act Nr. 89/2012 Coll. The Civil Code abrogating Act No. 40/1964 Coll. Civil Code
Act Nr. 395/2009 Coll. on Significant Market Power in the Sale of Agricultural and Food Products and
Act Against Restraints of Competition, 1957 (BGBl I, 1081)
Act Against Unfair Competition 2004, BGBl I, 1414 ff.
German Civil Code 1896 (RGBl, 195)
Greece UNF. COMP.
OTHER
Law Nr. 146/1914 “Regarding unfair competition”
Law Nr. 2251/1994 “Protection of consumers”
Hungary
COMP.
OTHER
OTHER
OTHER
OTHER
Act LVII of 1996 on the Prohibition of Unfair and Restrictive Market Practices
Act IV of 1959 On the Civil Code of the Republic of Hungary Practices
Act CLXIV of 2005 on Trade
Act XLVIII of 2008 on Essential Conditions of and Certain Limitations to Business Advertising Activity
Act XCV. of 2009 on Prohibition of Unfair Distribution Behavior against Suppliers in Relation with
agricultural and food Products
Ireland
COMP.
OTHER
OTHER
OTHER
OTHER
Competition Act 2002 (No. 14/2002) as amended by, in particular, the Competition (Amendment) Act 2006
(no. 4/2006), The Competition (Amendment) Act 2010 (No. 12/2010) and the Competition (Amendment)
Act 2012 (No. 18/2012)
Sale of Goods Act, 1893 (as amended by, in particular, the Sale of Goods and Supply of Services Act 1980
(No. 16/1980) and the Consumer Credit Act 1995 (No. 24/1995), Sec. 12-15
Draft Code of Practice for Designated Grocery Goods Undertakings – May 2011 draft
European Communities (Late Payment in Commercial Transactions) Regulations 2012 (S. I. No. 580/2012),
as amended by European Communities (Late Payment in Commercial Transactions) (Amendment)
Regulations 2013 (S.I. No. 74/2013)
European Communities (Misleading and Comparative Marketing Communications) Regulations 2007 (S.I.
No. 774/2007)
Italy
COMP.
UNF. COMP.
OTHER
OTHER
OTHER
OTHER
OTHER
OTHER
Law 10.10.1990, Nr. 287, art. 3 (Abuse of dominant position)
Italian Civil Code, 1942, Art. 2598 (Unfair Competition Actions)
Italian Civil Code, Artt. 1341-1342 (Unfair Standard Contract Terms)
Law 18.6.1998, Nr. 192, concerning sub-supply relationships in productive activities, Art. 9
Legislative Decree 9.10.2002, Nr. 231, implementing the Late Payment Directive 2000/35, Art. 7
Law 6.5.2004, Nr. 129 on “commercial affiliation” (franchising), Art. 6
Legislative Decree 6.9.2005, Nr. 206 (Codice del consumo), Artt. 18-27
Law-Decree 24.1.2012, Nr. 1, converted with amendments by Law 24.3.2012, Nr. 27, concerning
PAGE 268
Countries Type of legislation List of examined Legislation per Country
OTHER
commercial (B2B) transactions in the field of cession of agricultural or agro-food products, Art. 62
Law Decree 2.08. 2007, Nr. 145 on Misleading Advertising
Latvia COMP.
OTHER
Competition Law, 2008, Sec. 13 (1), 13 (2) and 18
Law on Advertising, 20 December 1999
Lithuania
COMP. AND UNF.
COMP.
OTHER
OTHER
OTHER
OTHER
Law on Competition of the Republic of Lithuania, Nr. 30-856, 1999
Civil Code of the Republic of Lithuania, Nr. 74-2262, 2000
Law on Advertising of the Republic of Lithuania, Nr. 64-1937, 2000
Law on the Prevention of Late Payment in Commercial Transactions of the Republic of Lithuania, Nr. 123-
5571, 2003, Art. 9
Law on the Prohibition of Unfair Practices of Retailers of the Republic of Lithuania, Nr. 1-31, 2009
Luxembourg
COMP.
UNF. COMP.
OTHER
Law on Competition, 23 October 2011
Law on Certain Commercial Practices and the Prohibition of Unfair Competition, 30 July 2002
Civil Code, artt. 1382-1383
Malta
COMP.
UNF. COMP.
OTHER
Competition Act (Chapter 379 of the Laws of Malta), introduced by virtue of Act XXXI of 1994, Artt. 5-9
Commercial Code, Sub-title III (Of Limits of Competition) to Title II, (Chapter 13 of the Laws of Malta),
1857, Artt. 32-37
Trade Descriptions Act (Chapter 313 of the Laws of Malta), enacted by virtue of Act XXII of 1986
Poland
COMP.
UNF. COMP.
OTHER
OTHER
Act on Protection of Competition and Consumers, 16 February 2007
Act on combating unfair competition, 16 April 1993
Civil Code, 23 April 1964
Pharmaceutical Law, 6 September 2001
Portugal1
COMP.
OTHER
OTHER
OTHER
OTHER
OTHER
Law Nr. 19/2012 (Competition Law)
Decree-Law Nr. 446/85 of 25/10 (unfair contractual terms)
Decree-Law Nr. 370/93 (unfair commercial practices)
Decree-Law Nr. 57/2008 (Unfair commercial practices – applicable to B2C only)
Decree-Law Nr. 62/2013 of 10/05 (combating late payment on commercial transactions)
National Advertising Code (Decree-Law nº 330/90 of 23/10
Romania
COMP.
OTHER
OTHER
Law on Competition, Nr. 21/1996
Law Nr. 158/2008 on Misleading and Deceptive Marketing Practices
Law on Food Marketing, Nr. 321/2009
Slovakia
UNF. COMP.
OTHER
OTHER
Act Nr. 513/1991 Coll. Commercial Code
Act Nr. 147/2001 Coll. on Advertising
Act Nr. 362/2012 Coll. on Unfair Terms in Business Relations regarding Groceries
1 Portugal: the regime on unfair competition which, in Portugal, is established in the Industrial Property Code (namely articles 316º to 319º) was not taken into consideration,
given that the focus of the study to be unfair practices in contractual relations, and the regime on unfair competition established in the Industrial Property Code is closer to
criminal law than to contract law.
PAGE 269
Countries Type of legislation List of examined Legislation per Country
Slovenia
COMP.
UNF. COMP.
UNF. COMP.
OTHER
OTHER
Prevention of Restriction of Competition Act, Nr. 36/2008
Protection of Competition Act, Nr. 18/1993
Constitution of the Republic of Slovenia, Nr. 33I/1991, third Paragraph of Art. 74
Consumer Protection Act, Nr. 20/1998
Media Act transposing Directive 114/2006
Spain
COMP
UNF. COMP.
OTHER
OTHER
OTHER
OTHER
OTHER
OTHER
Law 15/2007, Competition Act
Law 3/1991, Unfair Competition Act
Law 34/1988, General Advertisement Act
Law 7/1996, Retail Trade Act
Law 12/2013 on measures to improve the functioning of the food chain
Civil code, art. 7, 1258
Comm. Code, art. 57
Law on terms and conditions (13 April 1998, n. 7)
Sweden
COMP.
UNFAIR. COMP.
OTHER
Competition Act, Nr. 579/2008
Swedish Act on Marketing Practices, Nr. 486/2008
Sweden Contracts Act, 1915
The Netherlands COMP.
OTHER
Dutch Competition Act, 22 May 1997
Dutch Civil Code, entry into force on 1 January 1992
United Kingdom COMP.
OTHER
OTHER
Competition Act, Nr. C.41/1998
Unfair Contract Terms Act, Nr. C. 50/1977
Business Protection from Misleading Marketing Regulations, Nr.1276/2008
Groceries Code Adjudicator Bill, 2013 (enforcement of private regulation)
PAGE 270
2. LIST OF EXAMINED PRIVATE REGULATION PER COUNTRY
Table 2. List of examined Private Regulation per country
Private regulatory instruments adopted at European or Global level
European Instruments
Vertical Relationships in the Food Supply Chain: Principles of Good Practice (European Principles), 2011
EU Code of Contractual Clauses and Practices to be respected in Vehicle Manufacturer/Authorised Dealersand Repairer in
Contractual Relations (CECRA), 2010
EU Code of Good Practice regarding certain Aspects of Vertical Agreements in Motor Vehicle Sector (ACEA)
EU EUCOMED Compliance & Competition Law Guidelines, 2004
Global Instruments International Chamber of Commerce Code of Advertising and Marketing Communication Practice, 2011
Generic Fairtrade Trade Standard, 2011
Private regulatory instruments adopted at domestic level
Countries
Austria Absent at domestic and international level
Belgium Code of Conduct for fair Relationships between Suppliers and Purchasers in the Agro-food Chain, 2010
Bulgaria Absent at domestic and international level
Croatia
Code of Business Ethics, 2005
Code of Ethics in Advertising, 2001
Code of Ethics in Direct Sales, 2004
Special Practices in Retail Sale, 1995
Cyprus Absent at domestic level; adopted private regulation developed at European level
Czech Republic Absent at domestic and international level
Denmark Absent; however reference to a debate on the adoption of an ethical code by the food industry in the manner of Good
Practices Principles adopted at EU level
Estonia
Estonian Bakers’Code of Honour, 2000
Estonian Traders’Association’s Code On Good Trading Conducts, 2008
Code of Ethics of The Association of Estonian Information Technology and Telecommunications, 2000
Articles of Association of the Estonian Association of SME’s, 2011
Finland Absent at domestic level; adopted private regulation developed at European and international level
France
Code de bonnes pratiques en matière de relations commerciales ètablies, 2013
Accord sur le dèfèrencement (Tools and Home Decoration), 2001
Code de bonnes pratiques relative à la relation client-fournisseur dans la soistraitance industrielle au sein de la filière
automobile, 2006
PAGE 271
Charte des relations inter-enterprises + Label Relations fournisseurs responsables, 2010
Recueil de bonnes pratiques de la federation francaise de la franchise
Charte d’èthique de la federation EBEN (distribution firms for stationery and creative leisures products)
Germany Absent at domestic and international level
Greece Code of Advertising, 2003
Code of Conduct of the Hellenic Association of Pharmaceutical Companies, 2002
Hungary Code of Ethics of the Hungarian Chamber of Commerce and Industry, 2004
Ireland Absent at domestic level; adopted private regulation developed at European level
Italy
Code of Commercial Ethics for the Sale of Furniture and Dècor
Code of Ethics in the Field of Chemical Commerce, 2012
Code of Conduct of Assofranchising, 2006
Standard Model Contracts for Sub-supply of Products/services or Processing
Model contracts for commercial agency, distribution and sale for exporters in the field of furniture, 2003 (first draft)
Latvia Code of Good Commercial Practice in Trade, 2006
Lithuania Code of Good Retailers Practice, 2007 (not applied anymore since 2009, after introduction of pertinent legislation)
Luxembourg Absent at domestic and international level
Malta Absent at domestic and international level
Poland Code of Ethics in Advertising, 2008
Portugal Code of Commercial Good Conduct, 1997
PARCA (Monitoring Platform of relations in Agribusiness Chain), 2011
Romania Absent at domestic and international level
Slovakia Ethical Principles of Advertising Practice Valid in the Slovak Republic (Code of Ethics), 2012
Slovenia Code of conduct among stakeholders in the Food (grocery) Supply Chain, 2011
Slovenian Code of Advertising Practice
Spain
Deontological Code of the Spanish Association of Enteral Nutrition Products Manufacturers and Distributors,
Spanish Good Practices Code on medicine Promotion and on Interrelation of Pharmaceutical Industry with Health
Professionals,
Sweden Absent at domestic level; adopted private regulation developed at European and international level
The Netherlands Dutch Code of Advertising, 1964
FNLI Code of Conduct (food), 2008
Code of Conduct Air Cargo Netherlands, 2008
Code of Conduct Dutch Association of Manufacturers of School Furniture
United Kingdom Groceries Supply Code of Practice
Committee of Advertising Practice Codes
Total instruments 45 examined instruments (39 developed at domestic level, 6 at international or European level)
Total countries 20 countries (16 adopting only or also domestic private regulation + 4 adopting only PR developed at European or
international level)
PAGE 272
Part I: National legislation
PAGE 273
I.A. Which areas of law are considered by Member State
when addressing UTP in B2B relations?
PAGE 274
3. TYPE OF LEGISLATION ADDRESSING UNFAIR TRADE PRACTICES (UTPS) PER AREA OF LAW
Table 3. Type of legislation addressing unfair trade practices (UTPs) in B2B relations: specific list per category
Countries Competition Law Unfair Competition Law Other Specific area within “Other”
Austria Competition Act Act against Unfair Competition Local Supply Act, Nr. 392/1977 B2B and B2C law, practices
Belgium Law on the Protection of
Economic Competition -
Loi relative aux pratiques du
marchè et à la protection du
consommateur
B2B and B2C trade law
Bulgaria Protection of Competition Act Protection of Competition Act -
Croatia Competition Act -
- Law on Advertising
- Law on Trade
- Law on Obligatory Relations
- Law on Financing (late
payments)
- B2B law, advertising
- B2B law, practices and adv.
- General, contracts and oblig.
- B2B law, Late payment
Cyprus Protection of Competition Act -
Control of Misleading and
Comparative Advertising Act
- B2B law, advertising
Czech Republic Protection of Competition and on
Amendment to Certain Acts Commercial Code, Sec. 44-55, C
- Civil Code
- Significant Market Power in the
Sale of Agricultural and Food
Products and Abuse thereof
- General contract law
- B2B law, practices, food,
contract
Denmark Danish Competition Act -
- Danish Contracts Act
- Marketing Practices Act
- General Contract Law
- B2B and B2C trade law
Estonia
Competition Act Competition Act
- Advertising Act
- Civil Code
- Law of Obligations Act
- B2B law, advertising
- General contract law
- General contract law
Finland Act on Competition Restriction
Unfair Trade (Business)
Practices Act
- Contract Act
- Unfair Terms in B2B Contracts
- General contract law
- B2B law, contracts
France
Commercial Code:
- art. L 420-2 al. 1: abuse of
dominance
- art. L. 420-2 al. 2: abuse of
economic dependence
Civil Code (artt. 1382-1383), tort
law general provision
Commercial Code:
- Art. L. 330-3: distribution,
franchise, dealership
- Art. L. 441-3: invoice, contents
and information duties
- Art. L. 441-6: B2B sales
contract
- B2B law, contracts
- B2B law, practices1
- B2B law, contracts
1 Please note that as regards art. L. 441-3, Cour de cassation (case law) has not clearly decided whether violation of the provision involves contractual liability (which is possible
because parties are in a contractual relationship) or non contractual liability (whereas it has clearly decided that violation of art. L. 442-6 I involves non contractual liability).
PAGE 275
Countries Competition Law Unfair Competition Law Other Specific area within “Other”
- Art. L. 441-7: sale/supply
contracts between suppliers and
retailers or between good
producer and retailers, formal
requirements for contract
conclusion
- Art. L. 442-4: below cost sales
- Art. L. 442-5: minimum resale
prices
- Art. L. 442-6, titre IV, livre IV,
restrictive practices
Consumption Code (art. L. 120-
1, art. L. 121-1 I & III, unfair
commercial practices)
- Civil code, art. 1134 ("force
obligatoire du contrat"; the
contract is the law of the parties;
contractual good faith), 1137 &
1147 & 1150 (contractual
obligations and contractual
liability)
- B2B law, contracts
- B2B law, practices
- B2B law, contracts
- B2B law, practices
- Consumer law
- General Contract Law
Germany Act against Restraints of
Competition Act Against Unfair Competition German Civil Code
General contract law
Greece - Unfair Competition Law Protection of Consumers Civil Law, Consumer law
Hungary
Act on the Prohibition of Unfair
and Restrictive Market Practices -
- Act on Trade
- Act on the Civil Code
- Act on Prohibition of Unfair
Distribution Behaviour against
Suppliers in relation with
agricultural and food Products
- Act on Essential Conditions of
and Certain Limitations to
Business Advertising Activity
- B2B law, practices
- General contract law
- B2B law, practices, food
- B2B law, advertising
Ireland
Competition Act -
- Sale of Goods Acts
- European Communities (Late
Payment in Commercial
Transactions) Regulations
- European Communities
(Misleading and Comparative
Marketing Communications)
- General contract law
- B2B law, late payment
- B2C and B2B law, marketing
PAGE 276
Countries Competition Law Unfair Competition Law Other Specific area within “Other”
Regulations
Italy
Art. 3, Law Nr. 287/1990 (abuse
of dominant position)
Art. 2598 ff. Civil Code (unfair
competition actions)
- Artt. 18-27 Consumer Code
(rules on UCPs, extended to
Microenterprises)
- Art. 62 Law Decree 24.1.2012
(supply for agri-food products)
- Art. 7 Legislative Decree
9.10.2002 Nr. 231 (late
payments)
- Artt. 1341-1342 cc (onerous
standard contract terms)
- Art. 6 Law Nr. 129/2004 on
franchising,
- Art. 9 Law Nr. 192/1998
concerning sub-supply
relationships in productive
activities (sub-supply)
- Legislative Decree 02.08.2007,
Nr. 145 on Misleading
Advertising
- Consumer law
- B2B law, food, contracts
- B2B law, late payment
- General contract law
- B2B law, contracts
- B2B law, contracts and
practices
- B2B Law, advertising
Latvia Competition Law (sec 13(1),
13(2) and 18) - Law on Advertising
B2B law, advertising
Lithuania
Law on Competition Law on Competition
- Law on Advertising
- Law on the Prevention of Late
Payment in Commercial
Transactions
- Law on the Prohibition of
Unfair Practices of Retailers
(food)
- Civil Code
- B2B law, advertising
- B2B law, late payments
- B2B law, practices
- General contract law
Luxembourg
Law on Competition
Law on certain commercial
Practices and the Prohibition of
Unfair Competition
Civil Code, Artt. 1382-1383 - B2B tort law provisions
Malta Competition Act
Sub-title III (of limits of
competition) to Title II of the
Commercial Code
- Trade Descriptions Act
B2B law, practices(criminal law)
Poland Act on Protection of Competition
and Consumers
Act on Combating Unfair
Competition
- Civil Code
- Pharmaceuthical Law
- General contract law
- B2B and B2C trade, Pharm.
Portugal Law Nr. 19/2012 (new legal
framework for competition)
-
- Decree Law, Nr. 370/93 (trade)
- Decree Law, Nr. 446/85 of
- B2B law, practices
- B2B law, contracts
PAGE 277
Countries Competition Law Unfair Competition Law Other Specific area within “Other”
25/10 (unfair contractual terms),
sec. II
- Decree-Law Nr. 62/2013 of
10/05
- National Advertising Code
(Decree-Law nº 330/90 of 23/10
- B2B Law, late payments
- B2B law, advertising
Romania Law on Competition
Law on Food Marketing
Law 158/2008
B2B law, practices, food
- B2B law, advertising
Slovakia
- Commercial Code
- Act on Advertising
- Act on Unfair Terms in
Business Relations regarding
Groceries
- B2B law, advertising
- B2B law, contracts, food
Slovenia Prevention of Restriction of
Competition Act (Artt. 6, 9)
- Constitution, third paragraph of
art. 74
- Protection of Competition Act
(Artt. 1 and 13)
Consumer Protection Act Consumer law
Spain
Competition Act Unfair Competition Act
- Civil code, artt. 7, 1258
- Comm. Code, art. 57
- Law on terms and conditions
(7/1998)
- General Advertisement Act
- Retail Trade Act
- Law 12/2013 on measures to
improve the functioning of the
food chain
- General contract law
- General contract law
- General contract law
- B2B law, advertising
- B2B law, practices
- B2B law, contracts, food
Sweden Competition Act
Swedish Act on Marketing
Practices Sweden Contracts Act, 1915
General contract law
The Netherlands Dutch Competition Act - Dutch Civil Code
General contract law
B2B law, advertising
United Kingdom
Competition Act -
- Business Protection from
Misleading Marketing
Regulations
- Unfair Contract Terms Act
- B2B law, advertising
- General contract law
PAGE 278
4. TYPE OF LEGISLATION ADDRESSING UNFAIR TRADE PRACTICES (UTPs) PER AREA OF LAW AND SUBJECT-MATTER
Table 4.a. Type of legislation addressing UTPs per area of law and law subject-matter: specific data table
Subject-
matter
addressed by
legislation:
Area of law:
Vic
es
of
con
sen
t,
un
fair
ex
plo
ita
tio
n,
un
fair
ter
ms
in
gen
era
l
Un
fair
ter
ms
in B
2C
(ex
ten
ded
to
B2
B)
B2
C c
om
mer
cia
l
pra
ctic
es (
D2
9
exte
nd
ed t
o B
2B
)
B2
B u
nfa
ir t
erm
s
B2
B l
ate
pa
ym
ents
pra
ctic
es a
nd
rela
ted
term
s
B2
B A
dv
erti
sin
g
(D1
14
)
B2
B M
ark
etin
g
Pra
ctic
es m
ore
gen
era
lly
in
ten
ded
An
ti-c
om
pet
itiv
e
Ag
reem
ents
Ab
use
of
do
min
an
t
po
siti
on
Ab
use
of
eco
no
mic
dep
end
en
ce w
ith
imp
act
on
ma
rket
Un
fair
Co
mp
etit
ion
Competition
law
Slovenia
Austria
Belgium
Bulgaria
Czech Rep.
Croatia
Cyprus
Denmark
Estonia
France
Finland
Germany
Ireland
Italy
Lithuania
Luxembourg
Malta
Poland
Portugal
Romania
Slovenia
Sweden
Netherlands
UK
Austria
Belgium
Bulgaria
Czech Rep.
Denmark
Estonia
Finland
France
Germany
Hungary
Ireland
Italy
Latvia
Lithuania
Luxembourg
Malta
Poland
Portugal
Romania
Slovenia
Sweden
Netherlands
UK
Economic
dependence
with impact
on market
Austria
Cyprus
France
Germany
Hungary
Portugal
Romania
Abuse of
significant
market
power
Bulgaria
(draft)
Slovenia
Latvia
(abuse of
dominant
position in
Retail
Trade)
Bulgaria
Hungary
Estonia
Latvia
Slovenia
Spain
Unfair Austria Austria Czech Rep. Spain Spain Austria
PAGE 279
Subject-
matter
addressed by
legislation:
Area of law:
Vic
es
of
con
sen
t,
un
fair
ex
plo
ita
tio
n,
un
fair
ter
ms
in
gen
era
l
Un
fair
ter
ms
in B
2C
(ex
ten
ded
to
B2
B)
B2
C c
om
mer
cia
l
pra
ctic
es (
D2
9
exte
nd
ed t
o B
2B
)
B2
B u
nfa
ir t
erm
s
B2
B l
ate
pa
ym
ents
pra
ctic
es a
nd
rela
ted
term
s
B2
B A
dv
erti
sin
g
(D1
14
)
B2
B M
ark
etin
g
Pra
ctic
es m
ore
gen
era
lly
in
ten
ded
An
ti-c
om
pet
itiv
e
Ag
reem
ents
Ab
use
of
do
min
an
t
po
siti
on
Ab
use
of
eco
no
mic
dep
end
en
ce w
ith
imp
act
on
ma
rket
Un
fair
Co
mp
etit
ion
competition
law
Germany
(in general,
not the
black list)
Greece (in
conj. with
consumer
law)
Spain
Sweden
Bulgaria
Estonia
Germany
Lithuania
Luxembourg
Malta
Poland
Spain
Finland
Poland
Slovenia
Slovenia Bulgaria
Czech Rep.
Estonia
Germany
Greece
Italy
Luxembourg
Poland
Slovakia
Slovenia
Spain
Tort law France
Law on B2B
contracts
and
obligations
Finland
France
(B2B sales,
retail)
Italy
(agrifood,
subsupply,
franchising)
Portugal
Slovakia
(food)
Croatia
Finland
France
Italy
Lithuania
Please
consider
many other
MS
transposing
EU dir.
France
(general
+retail)
Italy
(agrifood,
subsupply,
franchising)
Spain
(food)
Italy
Law on B2B
practices
and
advertising
Croatia
Cyprus
Czech
Repub.
Estonia
Hungary
Ireland
Croatia
Finland
France
Hungary
(agrifood-
retail)
Lithuania
PAGE 280
Subject-
matter
addressed by
legislation:
Area of law:
Vic
es
of
con
sen
t,
un
fair
ex
plo
ita
tio
n,
un
fair
ter
ms
in
gen
era
l
Un
fair
ter
ms
in B
2C
(ex
ten
ded
to
B2
B)
B2
C c
om
mer
cia
l
pra
ctic
es (
D2
9
exte
nd
ed t
o B
2B
)
B2
B u
nfa
ir t
erm
s
B2
B l
ate
pa
ym
ents
pra
ctic
es a
nd
rela
ted
term
s
B2
B A
dv
erti
sin
g
(D1
14
)
B2
B M
ark
etin
g
Pra
ctic
es m
ore
gen
era
lly
in
ten
ded
An
ti-c
om
pet
itiv
e
Ag
reem
ents
Ab
use
of
do
min
an
t
po
siti
on
Ab
use
of
eco
no
mic
dep
end
en
ce w
ith
imp
act
on
ma
rket
Un
fair
Co
mp
etit
ion
Italy
Latvia
Lithuania
Portugal
Romania
Slovakia
Slovenia
Spain
Sweden
The
Netherlands
The UK
(retailers)
Malta (false
description)
Portugal
Romania
(food)
Slovakia
(comm c)
Spain
(retail)
Abuse of
significant
market
power
Hungary
Czech Rep.
General
contract and
obligation
law
Czech Rep.
Croatia
Denmark
Estonia
Finland
France
Germany
Hungary
Ireland
Italy
Lithuania
Portugal
Sweden
The
Netherlands
Estonia
Germany
PAGE 281
Subject-
matter
addressed by
legislation:
Area of law:
Vic
es
of
con
sen
t,
un
fair
ex
plo
ita
tio
n,
un
fair
ter
ms
in
gen
era
l
Un
fair
ter
ms
in B
2C
(ex
ten
ded
to
B2
B)
B2
C c
om
mer
cia
l
pra
ctic
es (
D2
9
exte
nd
ed t
o B
2B
)
B2
B u
nfa
ir t
erm
s
B2
B l
ate
pa
ym
ents
pra
ctic
es a
nd
rela
ted
term
s
B2
B A
dv
erti
sin
g
(D1
14
)
B2
B M
ark
etin
g
Pra
ctic
es m
ore
gen
era
lly
in
ten
ded
An
ti-c
om
pet
itiv
e
Ag
reem
ents
Ab
use
of
do
min
an
t
po
siti
on
Ab
use
of
eco
no
mic
dep
end
en
ce w
ith
imp
act
on
ma
rket
Un
fair
Co
mp
etit
ion
The United
Kingdom
Consumer
law
France
Greece (in
conj. with
unfair
competition
law)
Italy (to
micro only)
The
Netherlands
France
Slovenia
Law on B2B
and B2C
trade
Denmark Belgium
Denmark
PAGE 282
4.b. SUMMARY TABLE AND CLUSTERING
Table 4.b. Type of legislation addressing UTPs practices per area of law and law subject-matter: summary table and clustering
Summary Table and Clustering
Number of
countries
(tot.: 28)
Countries
COMPETITION LAW addresses:
Anti-competitive agreements 23
Abuse of dominant position 23
Abuse of economic dependence (E.D.) or abuse of
significant market power (SMP) having impact on market
7 (E.D.)
1 +1 draft (SMP)
1 (special form of
ADP)
(E.D.) Austria – Cyprus - France – Germany – Hungary - Portugal - Romania
(SMP) Bulgaria (draft legislation) – Slovenia
Latvia (abuse of dominant position in Retail Trade)
UNFAIR COMPETITION LAW addresses:
Unfair competition tout court 13 Austria – Bulgaria - Czech Rep. – Estonia - Germany – Greece – Italy – Lithuania -
Luxembourg – Poland – Slovakia – Slovenia – Spain
Anti-competitive agreements 2 Slovenia - Spain
Abuse of dominant position 1 Spain
Abuse of economic dependence 2 Bulgaria - Greece
Advertising (B2B) 8 Austria – Bulgaria – Estonia - Germany – Luxembourg – Malta – Poland – Spain
B2B trade practices (more general than advertising only) 4 Czech Rep. - Finland- Poland - Slovenia
B2C unfair commercial practices (extended to B2B) 5 Austria – Germany – Greece (in conj. with consumer law) – Spain - Sweden
B2B LAW addresses:
B2B unfair terms 5 Finland – France – Italy - Portugal – Slovakia
Unfair terms and practices related with late payments 6 Croatia – Finland - France – Italy – Lithuania - Portugal
(This list does not include all MS transposing EU Directive on late payments)
Advertising (B2B) 16
B2B trade practices (more general than advertising only) 10 Croatia – Finland - France – Hungary – Italy – Malta – Portugal - Romania – Slovakia – Spain
Abuse of significant market power 2 Czech Republic - Hungary
Abuse of economic dependence 1 Italy
States addressing UTPs (also) through B2B law different
from law on advertising (ex 114/06 Directive) and from
law on late payments (ex 35/ 2000 and 7/2011 Directive)
13 Croatia - Czech Republic - Finland – France – Hungary - Ireland - Italy – Lithuania – Malta–
Portugal – Romania – Slovakia – Spain
PAGE 283
GENERAL CONTRACT / TRADE LAW (INCL. B2C)
addresses:
Vices of consent, unfair exploitation, unfair terms in
general
15
Unfair terms in B2C (extended to B2B) 2 Estonia – Germany
B2C unfair commercial practices (extended to B2B) 6 Denmark - France – Greece – Italy – Sweden – The Netherlands
Advertising 4 Belgium – Denmark – France - Slovenia
PAGE 284
5. DO UTPs ADDRESSED BY LEGISLATION DIFFERENT FROM COMPETITION LAW (POSSIBLY) HAVE COMPETITION LAW
CONSEQUENCES?
Table 5. Do UTPs addressed by legislation different from competition law (possibly) have competition law consequences?
The table shows positive answers only
Competition Law Consequences
Countries Unfair Competition Law
(Total: 17 countries)
Other
(Total: 26 countries)
Austria X -
Belgium - X
Bulgaria X -
Croatia - X
Cyprus - X
Czech Republic X X
Denmark - X
Estonia - -
Finland X X
France - X
Germany X -
Greece X X
Hungary - X
Ireland - -
Italy X X
Latvia - -
Lithuania - -
Luxembourg X -
Malta - X
Poland X X
Portugal - X
Romania - X
Slovakia X X
Slovenia - -
Spain X X
Sweden - -
The Netherlands - X
United Kingdom - -
Total 11 17
PAGE 285
I.B. To what extent have the 2006/114 and 2005/29 Directives been drivers for
legislation addressing UTPs in B2B relations? Which areas of law have been
interested by this transposition?
PAGE 286
6. NATIONAL LEGISLATION IMPLEMENTING THE 2006/114 DIRECTIVE
Table 6. National legislation implementing the 2006/114 Directive
Countries It refers to:
It distinguishes
between large and
small or micro
enterprises: National Legislation implementing the Directive 2006/114 Area of law/ legal
instrument
Business
only
B2B
and
B2C
Yes No
Austria - X - X Act against Unfair Competition. The Austrian Act includes a black list on misleading
or aggressive practices as an annex, which is applicable to both b2c and b2b UNFAIR COMPETITION
Belgium - X - X Loi du 6 avril 2010 relative aux pratiques du marché et à la protection du
consommateur (Moniteur belge du 12 avril 2010). See articles 96 and 97.
The law generally concerns B2C relations, but includes one brief section about B2B.
OTHER (B2B AND B2C TRADE)
Bulgaria - X - X Artt. 32 - 34 Protection of Competition Act. They have universal application. UNFAIR COMPETITION
Croatia X - - X
The Directive 2006/114 has been “implemented” in the course of the EU Accession
negotiations and in the fulfillment of the obligations of Croatia coming out of the
Stabilization and Association Agreement through a special Law on Prohibited
Advertising (NN 43/09). This Law has been fully aligned with the Directive. Croatia
considered this particular “business to business” issue should be dealt with within a
special law, although at first, Croatia was committed to align its legislation with the
Directive 2006/114 through the amendments of the Law on Protection of Consumers,
which idea has been later abandoned. The Law on Prohibited Advertising aims at
protecting business, the protection of consumers is provided through a special Law on
Cyprus - X - X Control of Misleading and Comparative Advertising Act of 2000 (L. 92(I)/2000). SPECIAL LAW ON
ADVERTISING
Czech
Republic - X - X
Act No. 40/1995 Coll on regulation of advertisement amending and supplementing
Act no. 468/1991 Coll. on radio and television transmission. The general legal
regulation of misleading advertising and its private law effects is contained in the sec 44
of the Act No. 513/1991 Coll.
The incorporated provisions as set in the Directive 2006/114/EC are applicable at
national level only within unfair competition.
SPECIAL LAW ON
ADVERTISING
Denmark - X - X Danish Marketing Practices Act section 1 and 3. Section 3 aims to protect both
businesses and consumers. OTHER
(B2B AND B2C TRADE)
Estonia - X - X Articles 3 and 4 of the Directive 2006/114 have been implemented into Advertising SPECIAL LAW ON
PAGE 287
Countries It refers to:
It distinguishes
between large and
small or micro
enterprises: National Legislation implementing the Directive 2006/114 Area of law/ legal
instrument
Business
only
B2B
and
B2C
Yes No
Act.
Estonian Competition Act § 50 (b) which stipulated clauses for unfair competition
makes reference to the Advertising Act.
ADVERTISING AND
UNFAIR COMPETITION
Finland - X - X Unfair Trade Practices Act 1061/1978 and Consumer Protection Act 38/1978. OTHER AND UNF.
COMP
France - X - X
French legislation on misleading and deceptive marketing practices (“pratiques
commerciales trompeuses”) is included in the consumption code (art. L120-1, L. 121-1
and 121-1-1).
CONSUMER LAW
Germany - X - X Act Against Unfair Competition (UWG). The German rules incorporate B2C
legislation. UNFAIR COMPETITION
Greece X - - X
Misleading and deceptive marketing practices are dealt with article 3 of the Law
146/1914 and with articles 9ff. of Law 2251/1994. Greek legislation has adapted the
European Directive 2006/114 with articles 9 and 9d of Law 2251/1994.
UNFAIR COMPETITION
AND CONSUMER LAW
Hungary X - - X
Act XLVIII of 2008 on Essential Conditions of and Certain Limitations to Business
Advertising Activity. This Act shall apply to business advertising activities performed
by persons in their capacities as advertisers, advertising service providers or publishers
of advertisements, to sponsorship and to codes of conduct relating to them.
SPECIAL LAW ON
ADVERTISING
Ireland - X - X The European Communities (Misleading and Comparative Marketing
Communications) Regulations 2007 (SI 774/2007).
SPECIAL LAW ON
ADVERTISING
Italy X - - X
Legislative Decree 2.8.2007, n° 145 on deceiving and comparative advertising aims at
protecting businesses only (see Art. 1, Personal scope of application). However,
businesses are also protected against deceiving or comparative advertising messages
addressed to consumers but affecting other businesses’ interests.
Artt. 18-27 codice consume apply both to B2C and B2b (microenterprises).
SPECIAL LAW ON
ADVERTISING AND
CONSUMER LAW
Latvia - X - X
Law on Advertising. Law on advertising does not explicitly deal with UTPs, it
contains provisions regulating comparative advertising as set forth in the Directive
2006/114, however, cases of comparative advertising are more common in horizontal
relationship between competitors and normally do not affect that much retail chain
participants and their vertical relationships. Therefore, it is hard to see big relevance and
interrelation between advertising law and UTPs.
SPECIAL LAW ON
ADVERTISING
Lithuania - X - X
Law on Advertising. This law in particular aims to protect interests arising from B2C
transactions and exclusively the institution of comparative and misleading advertising is
related not only to B2C, but also to B2B transactions and relationship between
economic entities.
SPECIAL LAW ON
ADVERTISING
PAGE 288
Countries It refers to:
It distinguishes
between large and
small or micro
enterprises: National Legislation implementing the Directive 2006/114 Area of law/ legal
instrument
Business
only
B2B
and
B2C
Yes No
Luxembourg - X - X
At the moment, a specific legislative act transposing Directive 2006/114 was not
identified. Nevertheless, the Law on Unfair Competition transposes Directive
97/55/EC amending Directive 84/450 EEC concerning misleading advertising, so as to
include comparative advertising. The Law on Unfair Competition does not make a
specific distinction between B2B and B2C transactions and seems to a certain extension
to cover both types of transactions with respect to misleading advertising and
comparative advertising. The Law on Unfair Competition does not distinguish between
large enterprises and SMEs.
SPECIAL ADVERTISING
LAW
Malta X - - X Articles 32A, 32B, 36A and 37 of the Commercial Code (Chapter 13 of the Laws of
Malta). These provisions apply to “traders” only.
COMMERCIAL CODE,
UNFAIR COMPETITION
Poland X - - X
Act on combating unfair competition – which covers issues of unfair advertising in
B2B relations. The directive has not been mentioned in the footnotes to this statute
(such information is usually contained in the Polish legislation to indicate, that
particular piece thereof implements a EU directive). Its scope leaves, however, no
seriuos doubt as to covering the subject matter of the directive in question.
UNFAIR COMPETITION
Portugal - X - X
There are two relevant legal statutes regarding misleading and comparative advertising:
- Decree-Law nº 57/2008 of 26/03 on unfair B2C commercial practices that occur
before, during and after a commercial transaction in relation to a product; this Decree-
Law implements Directive 2005/29; it also implements Directive 2006/114, insofar as it
altered the national advertising code as regards norms on misleading advertising (art.
11º of the national advertising code) and comparative advertising (art. 16º of the
national advertising code)
- Decree-Law nº 330/90 of 23/10 (national advertising code), which applies to any
form of advertising (including that aimed at consumers) and protects businesses and
business competitors from misleading and comparative advertising (art. 42º).
SPECIAL LAW ON
ADVERTISING
AND CONSUMER LAW
Romania X - - X
The Law 158/2008 on misleading and deceptive marketing practices transposing the
Directive 2006/114 aims to protect traders against misleading advertising and the unfair
consequences thereof and to lay down the conditions under which comparative
advertising is permitted.
SPECIAL LAW ON
ADVERTISING
Slovakia - X - X
This directive has been implemented into Act no. 147/2001 Coll. on advertising
indirectly, without need of any specific act implementing this directive. Content of the
directive 2006/114 is implemented also in the Commercial code, in particular the
misleading advertising (Section 45). This provision protects both businesses and
consumers. There was no need to adopt any specific act implementing this directive to
SPECIAL LAW ON
ADVERTISING
PAGE 289
Countries It refers to:
It distinguishes
between large and
small or micro
enterprises: National Legislation implementing the Directive 2006/114 Area of law/ legal
instrument
Business
only
B2B
and
B2C
Yes No
the Commercial code because this provision had complied with the wording of dir.
2006/114 before this directive was adopted. This results from the regulation under the
dir. 84/450/EEC.
Slovenia - X - X
Consumer Protection Act and partly in the Media Act. Consumer Protection Act’s
primary aim is to incorporate B2C legislation; however, it extends the application of
provisions on misleading and deceptive marketing practices also to practices not
intended for consumers, i.e. businesses (Article 12. č of Consumer Protection Act).
SPECIAL LAW ON
ADVERTISING AND
CONSUMER LAW
Spain X - - X
Directive was transposed as a general advertisement rule and regulated first in Ley
General de Publicidad and afterwards in Ley de Competencia Desleal (arts. 5, 7 and
10 LCD). Consumers have also administrative regulation protecting them. Article 3 of
Ley general de Defensa de los Consumidores y Usuarios has a definition of Consumer
that includes not only natural person but also legal person who has not an economic
activity in the market – Associations or Foundations- or acts outside its entrepreneurial
activity.
UNFAIR COMPETITION
Sweden - X - X Marketing Practices Act. It is applicable to all undertakings.
OTHER
(GENERAL TRADE
LAW)
The
Netherlands X - - X
Articles 6:194-196 of the Dutch Civil Code. Article 6:194 concerns misleading
advertising. The provisions are placed in the tort law section of the Code and are a
specification of the general rule on negligence (art. 6:162 of the Civil Code).
With the implementation of the Unfair Commercial Practices Directive 2005/29, the
scope of the article was limited to B2B-relations (i.e. marketing targeted at parties
acting in the course of a profession or business). No distinction is made between
large and small or micro enterprises. Consumers are protected against misleading
marketing practices by articles 6:193c-g DCC (articles 6:193a-j of the Civil Code
transpose the Unfair Commercial Practices Directive 2005/29).
(Parliamentary Papers II 2006/07, 30 928, no. 3, p. 18 and no. 8, p. 5).
CIVIL CODE
United
Kingdom X - - X Business Protection from Misleading Marketing Regulations 2008
SPECIAL LAW ON
ADVERTISING
Total 10 18 0 28
PAGE 290
Area of law / Legal instrument transposing 2006/114
Directive
SPECIAL LAW ON ADVERTISING 11
UNFAIR COMPETITION 6
SPECIAL LAW ON ADVERTISING AND UNFAIR COMPETITION 1
UNFAIR COMPETITION AND OTHER 1
SPECIAL LAW ON ADVERTISING AND CONSUMER LAW 3
COMPETITION LAW 0
UNFAIR COMPETITION AND CONSUMER LAW 1
CIVIL CODE 1
COMMERCIAL CODE 0
CONSUMER LAW 1
OTHER (MAINLY GENERAL TRADE LAW) 3
PAGE 291
7. NATIONAL LEGISLATION IMPLEMENTING THE 2005/29 DIRECTIVE AND ITS POSSIBLE APPLICATIONS TO B2B RELATIONS
Table 7. National legislation implementing the 2005/29 Directive and its possible application to B2B relations
Countries
Application of dispositions
transposing directive 2005/29 to
B2B or b2b
The black list attached to Unfair Commercial
Practices Directive has been made applicable to B2B
practices
There are existing black or grey lists applicable or used as a
source of interpretation in the B2B field
Yes No
All B2B
practices Only in part Not applicable Black lists Grey lists
Not defined
lists No
Austria X - X - - - - - X
Belgium - X - - X - - - X
Bulgaria - X - - X - - - -
Croatia - X - - X - - - X
Cyprus - X - - X - - - X
Czech Republic - X - - X - - - X
Denmark X - - - X - - - X
Estonia - X - - X X - -
Finland X - - - X - - - X
France X - - X - - - - X
Germany X - - - X - - - X
Greece - X - - X X - - -
Hungary - X - - X - - X -
Ireland - X - - X - - - X
Italy X (micro, B2b) - X
(only B2b)
- - - - X -
Latvia - X - - X - - - X
Lithuania - X - - X - - - X
Luxemburg - X - - X - - - X
Malta - X - - X X - - -
Poland - X - - X X X - -
Portugal - X - - X - X - -
Romania - X - - X - - - X
Slovakia - X - - X - - - X
Slovenia - X - - X - - - X
Spain X - - - X - - - X
Sweden X - X - - - X - -
The Netherlands - X - - X X X - -
United Kingdom - X - - X - - X -
Total 8 20 3 1 24 6 5 3 17
PAGE 292
I.C. What are objectives and scope of application of relevant legislation?
PAGE 293
8. THE STATED OBJECTIVES OF THE RELEVANT LEGISLATION
Table 8.a. The stated objectives of relevant legislation: Competition Law (tot. 26 countries)
The stated objectives of relevant competition legislation
Countries Protecting suppliers Protecting competitors Protecting other
market players Protecting consumers
Limiting the exercise
of buyer power
Limiting the exercise of
producer power over traders
and retailers
Austria X X X X X X
Belgium - - - X - -
Bulgaria - X X X - -
Croatia - X X X - -
Cyprus - X X X X -
Czech Republic - X X X - -
Denmark X X X X X X
Estonia X X X X - -
Finland X X - - X X
France X X X X X X
Germany X X X X X X
Greece - - - - - -
Hungary X X X X - -
Ireland - X X X X X
Italy - X - X - -
Latvia X - - X X -
Lithuania X X X X X X
Luxembourg X X X X X X
Malta X X X X X X
Poland X X X X X X
Portugal X - X X X X
Romania X X X X X X
Slovakia - - - - - -
Slovenia X X X X - -
Spain - X X X - -
Sweden X X X X X -
The Netherlands X X - X X -
United Kingdom - - - X - -
Total 17 22 20 25 16 12
Table 8.b. The stated objectives of relevant legislation: Unfair competition law (tot. 17 countries)
PAGE 294
The stated objectives of relevant unfair competition legislation
Countries Protecting suppliers Protecting competitors
Protecting
other market
players
Protecting consumers
Limiting the
exercise of buyer
power
Limiting the exercise of
producer power over
traders and retailers
Austria - X X X - -
Belgium - - - - - -
Bulgaria - X - X - -
Croatia - - - - - -
Cyprus - - - - - -
Czech Republic X X X -
Denmark - - - - - -
Estonia - X - - - -
Finland - X X X - -
France - X X X - -
Germany X X X X - X
Greece X X X X - X
Hungary - - - - - -
Ireland - - - - - -
Italy - X X - -
Latvia - - - - - -
Lithuania - X - X - -
Luxembourg X X X X X X
Malta - X X X - -
Poland X X X - X X
Portugal - - - - - -
Romania - - - - - -
Slovakia X X X X - -
Slovenia X X X X - -
Spain X X X X - -
Sweden X X X X X -
The Netherlands - - - - - -
United Kingdom - - - - - -
Total 8 17 13 15 3 4
Table 8.c. The stated objectives of relevant legislation: Other type of legislation (tot. 26 countries)
PAGE 295
The stated objectives of relevant legislation
Countries Protecting suppliers Protecting competitors
Protecting
other market
players
Protecting consumers
Limiting the
exercise of buyer
power
Limiting the exercise of
producer power over
traders and retailers
Austria - X X - - -
Belgium - X - X - -
Bulgaria - - - - - -
Croatia X X X X - X
Cyprus - X X X - -
Czech Republic X X X X X -
Denmark X X X X - -
Estonia X - - X X X
Finland - X X X -
France X X X X X X
Germany X X X X - -
Greece - - - X - -
Hungary X X X X X -
Ireland X X X X - -
Italy X X - X X X
Latvia - X X X - -
Lithuania X X X X X X
Luxembourg - - - - - -
Malta - X X X - -
Poland X X X X X X
Portugal X X X X - -
Romania X - - X X -
Slovakia X X X X - -
Slovenia - - X X - -
Spain X X X X X -
Sweden - - - - - -
The Netherlands X X - X X X
United Kingdom - - X - -
Total 16 20 18 23 11 7
PAGE 296
8. THE STATED OBJECTIVES OF THE RELEVANT LEGISLATION
d. SUMMARY TABLES
Table 8.d. the stated objectives of the relevant legislation
Areas of law compared: total answers
Areas of law Protecting suppliers Protecting competitors
Protecting
other market
players
Protecting consumers
Limiting the
exercise of buyer
power
Limiting the exercise of
producer power over
traders and retailers
Competition law
(tot.: 26
countries)
17 22 20 25 16 12
Unfair
competition law
(tot.: 17
countries)
8 17 13 15 3 4
Other areas of
law
(tot.: 26
countries)
16 20 18 23 10 7
Please see below for priorities assigned to specific classes of interests within each area of legislation.
PAGE 297
Areas of law compared: prioritizing the protected interests (from 1, highest priority, to 6, lowest priority)
The stated objectives of relevant legislation: Competition Law (tot. 26 countries)
Countries Protecting suppliers Protecting competitors
Protecting
other market
players
Protecting consumers
Limiting the
exercise of buyer
power
Limiting the exercise of
producer power over
traders and retailers
Austria 3 3 3 1
Belgium 1
Bulgaria 4 3 2 1 5 6
Croatia 4 1 3 2 6 5
Cyprus 2 1 2 1 5 5
Czech Republic 6 1 2 3 6 6
Denmark
Estonia 4 1 3 2 6 5
Finland 1 1 2 3 1 1
France 3 1 6 2 4 5
Germany 1 1 3 3 3 3
Greece 3 2 1 5 6 4
Hungary 3 2 2 4 6 6
Ireland 2 2 1 3 3
Italy 4 6 3 5 1 2
Latvia 1 5 4 3 2 6
Lithuania 3 1 6 4 5 2
Luxembourg 6 1 2 3 4 5
Malta 3 1 2 1 3 3
Poland 6 1 3 2 4 5
Portugal 4 3 3 2 1
Romania 6 1 2 3 4 5
Slovakia
Slovenia 4 1 3 2 6 5
Spain 2 1
Sweden 6 5 2 1 4 3
The Netherlands
United Kingdom 1
Total highest
priority (No. # 1)
3 13 1 9 2 2
PAGE 298
The stated objectives of relevant legislation: Unfair competition Law (tot. 17 countries)
Countries Protecting suppliers Protecting competitors
Protecting
other market
players
Protecting consumers
Limiting the
exercise of buyer
power
Limiting the exercise of
producer power over
traders and retailers
Austria 1 1 1 3
Belgium
Bulgaria 4 2 3 1 5 6
Croatia
Cyprus
Czech Republic 6 1 2 3 6 6
Denmark
Estonia 3 1 2 4 6 5
Finland 2 1 2 2
France 3 1 3 2 3 3
Germany 3 1 1 1 - 3
Greece 3 1 2 5 6 4
Hungary
Ireland
Italy 4 6 3 5 1 2
Latvia
Lithuania 1 2
Luxembourg 2 1 6 5 3 4
Malta
Poland 6 1 3 2 4 5
Portugal
Romania
Slovakia 1 1 1 2 - -
Slovenia 1 1 1 1 6 6
Spain 1 1 1 1 - -
Sweden 3 2 4 1 6 5
The Netherlands
United Kingdom
Total highest
priority (Nr. #1) 4 13 5 5 1 0
PAGE 299
The stated objectives of relevant legislation: Contract law (including general contract law and B2B contracts) (tot. 18 countries)
Countries Protecting suppliers Protecting competitors
Protecting
other market
players
Protecting consumers
Limiting the
exercise of buyer
power
Limiting the exercise of
producer power over
traders and retailers
Austria
Belgium
Bulgaria
Croatia 3 1 2 4 6 5
Cyprus
Czech Republic 4 3 1 6 2 5
Denmark
Estonia 4 6 5 1 3 2
Finland 1 1 4 3 2 2
France 2 5 6 4 1 3
Germany 3 3 3 1
Greece 3 2 4 1 6 5
Hungary 4 4 5 3 5 5
Ireland 2 2 2 1
Italy 6 4 1 2 5 3
Latvia
Lithuania 4 3 6 1 2 5
Luxembourg
Malta
Poland 6 1 2 3 4 5
Portugal
Romania 1 2 6 5 3 4
Slovakia 1 1 1 2
Slovenia 4 2 3 1 6 5
Spain
Sweden 6 5 2 1 4 3
The Netherlands
United Kingdom 1 1
Total Highest
Priority (Nr. #1) 3 4 4 8 1 0
PAGE 300
The stated objectives of relevant legislation: Other areas of law
(e.g. law on business practices, trade law, advertising, etc.)(tot. 23 countries)
Countries Protecting suppliers Protecting competitors
Protecting
other market
players
Protecting consumers
Limiting the
exercise of buyer
power
Limiting the exercise of
producer power over
traders and retailers
Austria 3 1 1 3
Belgium 1 1
Bulgaria
Croatia 4 1 3 2 6 5
Cyprus 2 1 1 1 5 5
Czech Republic 2 4 5 3 1 6
Denmark
Estonia 6 2 3 1 5 4
Finland 2 1 4 3 2 2
France
Germany
Greece 4 2 3 1 6 5
Hungary 3 4 4 2 3 4
Ireland
Italy 4 5 1 6 2 3
Latvia 4 3 1 2 5 6
Lithuania 1 4 5 3 2 -
Luxembourg - - - - -
Malta - 1 3 2 -
Poland 5 1 3 2 6 4
Portugal 3 2 1 4
Romania
Slovakia 2 2 2 1
Slovenia 4 2 3 1 6 5
Spain 2 3 1 - -
Sweden
The Netherlands
United Kingdom - 1 - - -
Total Highest
Priority (Nr. #1) 1 7 6 7 2 0
PAGE 301
9. THE POSSIBLE DISTINCTION BETWEEN LARGE, MEDIUM, SMALL AND MICRO ENTERPRISES IN THE LEGISLATION
Table 9. The possible distinction between large, medium, small and micro enterprises
The legislation makes a distinction between large, medium, small and micro enterprises
Competition law Unfair competition law Other
Explicit distinction
By reference to other
criteria (e.g. market share) Explicit distinction
By reference to other
criteria (e.g. market share) Explicit distinction
By reference to other
criteria (e.g. market share)
Countries
Austria - - -
Belgium - X - - - -
Bulgaria - - - - - -
Croatia - X - - - -
Cyprus - - - - X
Czech R. - - - - X X
Denmark - - - - - -
Estonia - - - - - -
Finland - - - - X -
France - X - - X X
Germany X - - - - -
Greece - - - - - -
Hungary - - - - X -
Ireland - - - - - -
Italy - X - - X -
Latvia - X - - - -
Lithuania - X - - X -
Luxembourg - X X - - -
Malta - X - - -
Poland - X X X - X
Portugal - - - - - -
Romania X - - X -
Slovakia - - - - - -
Slovenia - - - - - -
Spain - - - - X X
Sweden - - - - - -
The
Netherlands
- X - - X -
UK - X - - - -
Total 1 12 2 1 9 5
PAGE 302
10. B2B LEGISLATION V. B2B AND B2C LEGISLATION
Table 10. B2B legislation only v. B2B and B2C legislation
The legislation refers to:
Countries B2B relations only Both B2C and B2B relations
Countries Competition
law
Unfair competition
law Contract Law Other Competition law
Unfair competition
law Contract Law Other
Austria - - - X X -
Belgium X - - X - - - -
Bulgaria X - - - - X - -
Croatia X - X - - X X
Cyprus X - - - - X
Czech
Republic X - X X - X X (cc) -
Denmark X - - - - X X
Estonia X X - - - - X X
Finland X X X - - X X
France X X X - X X
Germany X - - - - X X -
Greece - X - - - - X (cons law)
Hungary - - X X - X
Ireland - - - X - X X
Italy X X X X - - X X
Latvia X (only
analysed
section)
- - - - - - X
Lithuania X X - X - - X X
Luxembourg X X - X - - - -
Malta X (some rules) X - X X (some rules) - - --
Poland X X - X - - X X
Portugal - - - - X - - X
Romania X - - X - - - -
Slovakia - - - X - X X X
Slovenia - - - - X X - X
Spain - - - X X X X X
Sweden X - - - - X X -
The
Netherlands X - - X (some rules) - - - X (some rules)
United
Kingdom X - - X - - X -
Total 19+1 8 3 16 6+1 9 14 18
PAGE 303
11. CROSS-SECTOR V. SECTOR-SPECIFIC LEGISLATION
Table 11. Cross-sector v. sector-specific legislation
Cross-sector v. sector-specific legislation
All sectors of the economy Food/Grocery Other sectors
Countries Competition law Unfair
competition Other
Competition
law
Unfair
competition Other Competition law
Unfair
competition Other
Austria X X - - - - - - -
Belgium X - X - - - - - -
Bulgaria X X - - - - - - -
Croatia X - X - - - - - -
Cyprus X - X - - - - - -
Czech
Republic X X X - - X - - -
Denmark X - X - - - - - -
Estonia X X X - - - - - -
Finland X X X - - - - - -
France X X X - - - - -
Germany X X X - - - - - -
Greece - X X - - - - - -
Hungary X - X - - X - - -
Ireland X - X - - X (draft) - - -
Italy X X X - - X - - -
Latvia X - X - - - - - -
Lithuania X X X - - X - - -
Luxembourg X X - - - - - - -
Malta X X X - - - - - -
Poland X X X - - - - - X (Pharm.)
Portugal X - X - - - - -
Romania X X - - X - - -
Slovakia - X X - X - - -
Slovenia X X X - - - - -
Spain X X X - - X - -
Sweden X X X - - - - - -
The
Netherlands X - X - - - - - -
United
Kingdom X - X - - X - - -
Total 26 17 25 0 0 8+1 draft 0 0 1
PAGE 304
12. SPECIFIC LEGISLATION ON RETAIL TRADE
Table 12. Specific legislation on retail trade
Specific legislation on Retail Trade
Countries Competition law Unfair competition law Other
Austria - - -
Belgium - - -
Bulgaria - - -
Croatia - - -
Cyprus - - -
Czech Republic - - -
Denmark - - -
Estonia - - -
Finland - - -
France - - X
Germany - - -
Greece - - -
Hungary - - X
Ireland - - -
Italy - - -
Latvia X - -
Lithuania - - X
Luxembourg - - -
Malta - - -
Poland - - -
Portugal - - -
Romania - - -
Slovakia - - -
Slovenia - - -
Spain - - X
Sweden - - -
The Netherlands - - -
United Kingdom - - -
Total 1 0 4
PAGE 305
I.D. How are unfair practices defined and identified by national legislation?
PAGE 306
13. THE USE OF GENERAL CLAUSES AND THE ONE OF BLACK AND/OR GREY LISTS
Table 13.a. The use of general clauses and the one of black or grey lists: Competition Law (tot. 26 countries)
Countries
General clauses
without lists (black
and grey)
General clauses with lists (black
and/or grey)
Both black and grey
lists Only black lists Only grey lists
An indication
of specific
modes of
enforcement
making the
practice unfair
Specific
provisions for
certain types of
businesses (e.g.
cooperative
businesses)
Austria X - - - - - -
Belgium (N/A) - - - - - - -
Bulgaria X - - - - - -
Croatia - - - X - - -
Cyprus - - X - - - -
Czech Republic - X - - - - -
Denmark - X - - - - -
Estonia - X - - - - -
Finland X - - - - - -
France X -
- - - -. -
Germany - X - - - - -
Greece - - - - - - -
Hungary X - - - - X -
Ireland - - X - - X X
Italy - X - - - - -
Latvia - X - - - - -
Lithuania X - - - -
Luxembourg - X - - X X
Malta - X - - - - -
Poland - - X - - -
Portugal - - X - - -
Romania - X - - - - X
Slovakia - - - - - - -
Slovenia X - - - X -
Spain - - - X - - -
Sweden - - - X - - -
The Netherlands - - - - - X -
United Kingdom - - X - - - -
Total 7 9 3 5 0 5 3
PAGE 307
Table 13.b. The use of general clauses and the one of black or grey lists: Unfair competition (tot. 17 countries)
Countries
General clauses
without lists
(black and grey)
General clauses with lists
(black and/or grey)
Both black and
grey lists Only black lists
Only grey
lists
An
indication of
specific
modes of
enforcement
making the
practice
unfair
Specific
provisions for
certain types
of businesses
(e.g.
cooperative
businesses)
Other:
informal list
of practices
Austria - X - - - - - -
Belgium - - - - - - - -
Bulgaria - X - - - - - -
Croatia - - - - - - - -
Cyprus - - - - - - - -
Czech R. - X - - - - - -
Denmark - - - - - - - -
Estonia - X - - - - - -
Finland X - - - - X - -
France - - - - - - - X
Germany - X - - - - - -
Greece X - - - - - - -
Hungary - - - - - - - -
Ireland - - - - - - - -
Italy - X - - - - - -
Latvia - - - - - - - -
Lithuania X - - - - - - -
Luxembourg X - - - - X X -
Malta - X - - - - -
Poland - X - - - - - -
Portugal - - - - - - -
Romania - - - - - - -
Slovakia X - - - - - -
Slovenia X X - - - - -
Spain - X - - - - - -
Sweden - - - X - - - -
The NL - - - - - - - -
UK - - - - - - - -
Total 6 10 0 1 0 2 1 1
PAGE 308
Table 13.c. The use of general clauses and the one of black or grey lists: Other relevant legislation (tot. 26 countries)
Countries
General clauses
without lists (black
and grey)
General clauses with lists (black
and/or grey)
Both black and
grey lists Only black lists Only grey lists
An indication of
specific modes of
enforcement making
the practice unfair
Specific
provisions for
certain types of
businesses (e.g.
cooperative
businesses)
Austria X - - - - - -
Belgium X - - - - - -
Bulgaria - - - - - - -
Croatia X - X X - - -
Cyprus - X - - - - -
Czech
Republic X X - - - - -
Denmark X - - - - X -
Estonia X X - - - X -
Finland X - - - - - -
France X X - X - X X
Germany - X - - - - -
Greece - X - - - X -
Hungary X - - X - X -
Ireland X - - - - X X
Italy X X X - X X
Latvia - X - - - - -
Lithuania X - - - -
Luxembourg X - - - - -
Malta - X - - - - -
Poland X - X - - -
Portugal X - X - - X
Romania X - - - - X -
Slovakia X - X - - -
Slovenia X - - - X -
Spain X - - X - - X
Sweden X - - - - -
The
Netherlands - X - - - - -
United
Kingdom X - - - - - -
Total 21 10 1 8 0 9 5
PAGE 309
13. THE USE OF GENERAL CLAUSES AND THE ONE OF BLACK AND/OR GREY LISTS
D. SUMMARY TABLE
Table 13.d. The use of general clauses and the one of black or grey lists. Summary table
Areas of law
General clauses
without lists (black
and grey)
General clauses with lists (black
and/or grey)
Both black and
grey lists Only black lists Only grey lists
An indication
of specific
modes of
enforcement
making the
practice unfair
Specific
provisions for
certain types of
businesses (e.g.
cooperative
businesses)
Competition law
(tot.: 26
countries)
7 9 3 5 0 5 3
Unfair
competition law
(tot.: 17
countries)
7 10 0 1 0 2 1
Other areas of
law
(tot.: 26
countries)
21 10 1 8 0 9 5
Answers may not be available for some countries’ legislation.
PAGE 310
14. DOES LEGISLATION ADDRESS PRE-CONTRACTUAL PRACTICES, UNFAIR TERMS, PRACTICES IN THE COURSE OF CONTRACT
EXECUTION, POST-CONTRACTUAL PRACTICES?
Table 14. Does legislation address pre-contractual practices, unfair terms, practices in the course of contract execution, post-contractual practices?
General relevance
Countries Pre-contractual behaviour Contract terms definition Enforcement of contractual duties
or clauses Post-contractual behaviour
Austria X X X X
Belgium X X X X
Bulgaria X X X X
Croatia X X X X
Cyprus X X X -
Czech Republic X X X X
Denmark X X X X
Estonia X X X -
Finland X X X X
France X X X X
Germany X X X X
Greece X X X X
Hungary X X X X
Ireland X X X -
Italy X X X X
Latvia X X X -
Lithuania X X X X
Luxembourg X X X X
Malta X X X X
Poland X X X X
Portugal X X X -
Romania X X X X
Slovakia X X X X
Slovenia X X X X
Spain X X X X
Sweden X X X X
The Netherlands X X X -
United Kingdom X X X -
Total 28 28 28 21
PAGE 311
15. DO DIFFERENT AREAS OF LEGISLATION ADDRESS PRE-CONTRACTUAL PRACTICES, UNFAIR TERMS, PRACTICES IN
PRACTICES IN THE COURSE OF CONTRACT EXECUTION AND POST-CONTRACTUAL PRACTICES?
Table 15.a. Do different areas of legislation address pre-contractual practices, unfair terms, practices in the course of contract execution and post-contractual practices?
General relevance
Pre-contractual practices Contract terms definition Enforcement of contractual duties
or clauses
Post-contractual practices
Countries
Competition
law
Unfair
competition
law
Other Competition
law
Unfair
competition
law
Others Competition
Law
Unfair
Competition
Law
Others Competition
Law
Unfair
Competition
Law
Other
Austria X X X X X X X X - - X -
Belgium X - - X - - X - - X - -
Bulgaria X X - X - - X X - X X -
Croatia X - X X - X X - X - - X
Cyprus X - X X - - X - - - - -
Czech
Republic
X X X - X X X X X - X X
Denmark X - X X - - X - - X - -
Estonia X X X X - X X - X X X -
Finland X X X X - X X X X - X X
France X X X X - X X X X X X X
Germany X X X - - X X X X X X X
Greece - X X - X X - X X - X X
Hungary X - X X - X X - X X - X
Ireland X - X X - X X - - - - -
Italy X X X X X X X X X X X X
Latvia X - X X - - X - - - - X
Lithuania X X X X X X X X X X X X
Luxembourg X X X X X X X X X X X X
Malta X - - X - - X - - X - -
Poland X X X X X X X X X X X X
Portugal X - X X - X X - X - - -
Romania X X X X X X X X
Slovakia - X X - X X - X X - X X
Slovenia X X X X X - X X - - X
Spain X X X X - X X X X X X -
Sweden X X X X - X X X X X X X
The X - X X - X X - X - - -
PAGE 312
Pre-contractual practices Contract terms definition Enforcement of contractual duties
or clauses
Post-contractual practices
Countries
Competition
law
Unfair
competition
law
Other Competition
law
Unfair
competition
law
Others Competition
Law
Unfair
Competition
Law
Others Competition
Law
Unfair
Competition
Law
Other
Netherlands
United
Kingdom
X - X X - X X - X - - -
Total 26 16 25 24 9 21 26 15 19 15 16 15
PAGE 313
Table 15.b. Do different areas of legislation address pre-contractual practices, unfair terms, practices in the course of contract execution and post-contractual practices?
The most relevant areas of law per each type of conducts/practices
Countries Pre-contractual behaviour Contract terms definition Enforcement of contractual duties
or clauses
Post-contractual behaviour
Austria Unfair Competition Unfair Competition Unfair Competition -
Spain Unfair Competition Contract Law Contract Law Contract Law
Sweden Contract law + Unf. Comp. Contract law + Unf. Comp. Competition + Contract law Contract Law + Competition
The Netherlands Contract Law Contract Law Contract Law Contract Law + Competition Law
United Kingdom Competition + Other Competition + Contract Law + Competition + Contract Law + Other Competition
PAGE 314
Countries Pre-contractual behaviour Contract terms definition Enforcement of contractual duties
or clauses
Post-contractual behaviour
Other
Total –
Competition law
(tot.: 26) 11 7 14 11
Total – Unfair
Competition law
(tot.: 17) 10 5 8 9
Total – Contract
law
(tot.: 18) 6 14 10 5
Total – Other
areas of law (tot.
23) 8 4 3 4
PAGE 315
Table 15.c. Does competition law address pre-contractual practices, unfair terms, practices in the course of contract execution and post-contractual practices?
Competition law (tot. 26 countries)
Countries Pre-contractual practices Unfair Terms UTPs emerging during contract
execution Post-contractual practices
Austria X X X -
Belgium X X X X
Bulgaria X X X X
Croatia X X X -
Cyprus X X X -
Czech Republic X - X -
Denmark X X X X
Estonia X X X X
Finland X X X -
France X X X X
Germany X - X X
Greece - - - -
Hungary X X X X
Ireland X X X -
Italy X X X X
Latvia X X X -
Lithuania X X X X
Luxembourg X X X X
Malta X X X X
Poland X X X X
Portugal X X X -
Romania X X X X
Slovakia - - - -
Slovenia X X X -
Spain X X X X
Sweden X X X X
The Netherlands X X X -
United Kingdom X X X -
Total 26 24 26 15
PAGE 316
Table 15.d. Does unfair competition law address pre-contractual practices, unfair terms, practices in the course of contract execution and post-contractual practices?
Unfair competition law (tot. 17 countries)
Countries Pre-contractual practices Unfair Terms UTPs emerging during contract
execution Post-contractual practices
Austria X X X X
Belgium - - - -
Bulgaria X X X
Croatia - - - -
Cyprus - - - -
Czech Republic X X X X
Denmark - - - -
Estonia X - - X
Finland X - X X
France X - X X
Germany X - X X
Greece X X X X
Hungary - - - -
Ireland - - - -
Italy X X X X
Latvia - - - -
Lithuania X X X X
Luxembourg X X X X
Malta - - - -
Poland X X X X
Portugal - - - -
Romania
Slovakia X X X X
Slovenia X X X X
Spain X - X X
Sweden X - X X
The Netherlands - - - -
United Kingdom - - - -
Total 16 9 15 16
PAGE 317
Table 15.e. Does other type of legislation address pre-contractual practices, unfair terms, practices in the course of contract execution and post-contractual practices?
Other type of legislation (tot. 26 countries)
Countries Pre-contractual practices Unfair Terms UTPs emerging during contract
execution Post-contractual practices
Austria X X - -
Belgium - - - -
Bulgaria - - - -
Croatia X X X X
Cyprus X - - -
Czech Republic X X X X
Denmark X - - -
Estonia X X X -
Finland X X X X
France X X X X
Germany X X X X
Greece X X X X
Hungary X X X X
Ireland X X - -
Italy X X X X
Latvia X - - X
Lithuania X X X X
Luxembourg X X X X
Malta - - - -
Poland X X X X
Portugal X X X -
Romania X X X X
Slovakia X X X X
Slovenia X - -
Spain X X X -
Sweden X X X X
The Netherlands X X X -
United Kingdom X X X -
Total 25 21 19 15
PAGE 318
16. SPECIFIC CONDUCTS ADDRESSED BY RELEVANT LEGISLATION WITHIN EACH CATEGORY
Table 16.a. Pre-contractual conducts (negotiation and contract formation) addressed by relevant legislation within each category
Specific pre-contractual Conducts Competition law Unfair competition law Other
Withholding essential
information
Bulgaria
Luxembourg
Romania
Austria
Lithuania
Luxembourg
Poland
Slovenia
Spain
Sweden
Cyprus
Estonia
France
Germany
Greece
Ireland
Italy
Lithuania
Malta
Poland
Romania
Slovenia
Spain
The Netherlands
Misleading advertising or information Hungary
Luxembourg
Austria
Bulgaria
Czech Republic
Estonia
Finland
Germany
Greece
Italy
Lithuania
Luxembourg
Poland
Slovakia
Slovenia
Spain
Sweden
Belgium
Croatia
Cyprus
Czech Republic
Denmark
Estonia
France
Germany
Greece
Hungary
Ireland
Italy
Latvia
Lithuania
Malta
Poland
Portugal
Romania
Slovakia
Slovenia
PAGE 319
Specific pre-contractual Conducts Competition law Unfair competition law Other
Spain
The Netherlands
UK
Aggressive Practices
Croatia
Hungary
Luxembourg
Malta
Romania
UK
Austria
Finland
Germany
Luxembourg
Spain
Sweden
Czech Republic
Denmark
Greece
Italy
Lithuania
Poland
Slovakia
Spain
The Netherlands
Discrimination
Austria
Belgium
Bulgaria
Croatia
Cyprus
Czech Republic
Denmark
Estonia
Finland
France
Germany
Hungary
Ireland
Italy
Latvia
Lithuania
Luxembourg
Malta
Poland
Romania
Slovenia
Spain
Sweden
Austria
Greece
Luxembourg
Poland
Slovenia
Hungary
Italy
Lithuania
Romania
Slovakia
Spain
Refusal to negotiate
Bulgaria
Denmark
Estonia
Finland
Hungary
Luxembourg
Croatia
Italy
Portugal
PAGE 320
Specific pre-contractual Conducts Competition law Unfair competition law Other
Luxembourg
Latvia
Malta
Romania
Spain
Sweden
Abuse of bargaining power
Belgium
Croatia
Cyprus
Czech Republic
Denmark
Estonia
Finland
France
Germany
Hungary
Ireland
Latvia
Luxembourg
Malta
Poland
Portugal
Romania
Slovenia
Spain
Sweden
The Netherlands
UK
Austria
Luxembourg
Slovenia
Spain
Croatia
Czech Republic
France
Estonia
Finland
Hungary
Italy
Lithuania
Portugal
Romania
The Netherlands
Unfair breaking off of negotiation
Croatia
Denmark
Hungary
Luxembourg
Romania
France
Luxembourg
Croatia
Czech Republic
Estonia
Italy
Lithuania
The Netherlands
Lack of written contract - Luxembourg
Estonia
France
Italy
Spain
Lack of clarity in contract offer - Austria
Luxembourg
Finland
France
PAGE 321
Specific pre-contractual Conducts Competition law Unfair competition law Other
Spain Germany
Italy
Spain
Sweden
The Netherlands
Other
Bulgaria
France
Latvia
Malta
Poland
Germany
Greece
Lithuania
Luxembourg
Poland
Slovakia
Estonia
Finland
France
Greece
Italy
Lithuania
Malta
Poland
Spain
The Netherlands
PAGE 322
Table 16.b. Unfair terms addressed by relevant legislation within each category
Unfair terms Competition law Unfair competition law Other
Terms imposing surcharges in supplies
Croatia
Denmark
Finland
France
Luxembourg
Malta
Poland
Romania
Austria
Luxembourg
Poland
Finland
France
Hungary
Lithuania
Romania
The Netherlands
Terms imposing unjustified/excessive
costs (e.g. listing fees, charges for not
requested services)
Bulgaria
Croatia
Denmark
Finland
France
Hungary
Ireland
Latvia
Lithuania
Luxembourg
Malta
Romania
Austria
Luxembourg
Czech Republic
Finland
France
Germany
Hungary
Italy
Lithuania
Portugal
Romania
Slovakia
Terms imposing excessive requirements
(e.g. technical standards,
auditing/certification mechanisms) and
related costs
Croatia
Denmark
France
Hungary
Lithuania
Luxembourg
Malta
Romania
Slovenia
Luxembourg
Finland
France
Italy
Portugal
Romania
Slovakia
Terms unreasonably imposing or
shifting risks (e.g., shrinkage fees in
case of stolen goods)
Bulgaria
Croatia
Denmark
France
Latvia
Lithuania
Luxembourg
Malta
Austria
Luxembourg
Estonia
Finland
France
Germany
Hungary
Ireland
Italy
Lithuania
PAGE 323
Unfair terms Competition law Unfair competition law Other
Slovakia
Liability disclaimers
Denmark
France
Luxembourg
Malta
Austria
Czech Republic
Luxembourg
Estonia
Finland
France
Germany
Ireland
Italy
Lithuania
Portugal
Romania
Sweden
The Netherlands
UK
Exclusivity constraints
Bulgaria
Denmark
France
Ireland
Luxembourg
Malta
Romania
Spain
The Netherlands
UK
Luxembourg
Finland
France
Italy
Romania
Sweden
Non-competition clauses
Bulgaria
Denmark
France
Hungary
Ireland
Luxembourg
Malta
Romania
Spain
The Netherlands
UK
Czech Republic
Luxembourg
Finland
France
Romania
Sweden
Non transparent or disproportionate
contract penalties
France
Latvia
Luxembourg
Malta
Romania
Czech Republic
Luxembourg
Czech Republic
Estonia
Finland
France
Germany
Greece
PAGE 324
Unfair terms Competition law Unfair competition law Other
Italy
Lithuania
Portugal
Romania
Slovakia
Sweden
The Netherlands
Unfair price terms
Bulgaria
Croatia
Denmark
France
Hungary
Ireland
Italy
Latvia
Lithuania
Luxembourg
Malta
Portugal
Romania
Slovenia
Spain
Austria
Bulgaria
Luxembourg
Poland
Slovenia
Estonia
Finland
France
Hungary
Italy
Lithuania
Portugal
Slovakia
Sweden
Unfair payment terms
Croatia
Denmark
France
Latvia
Luxembourg
Malta
Romania
Luxembourg
Czech Republic
Croatia
Estonia
Finland
France
Germany
Greece
Hungary
Italy
Lithuania
Portugal
Romania
Slovakia
Spain
Sweden
Unilateral modification clauses
Denmark
France
Luxembourg
Malta
Luxembourg
Estonia
Finland
France
Germany
PAGE 325
Unfair terms Competition law Unfair competition law Other Romania Hungary
Italy
Lithuania
Portugal
Romania
Slovakia
Spain
Sweden
The Nertherlands
Discriminatory terms relative to
competitors or other suppliers
Bulgaria
Croatia
Denmark
Finland
France
Hungary
Ireland
Italy
Lithuania
Luxembourg
Malta
Portugal
Romania
Slovenia
Spain
UK
Luxembourg
Poland
Czech Republic
Finland
Greece
Hungary
Italy
Portugal
Romania
Slovakia
Sweden
Other
Bulgaria
Cyprus
Denmark
France
Ireland
Latvia
Luxembourg
Malta
Poland
Portugal
Greece
Luxembourg
Poland
Croatia
Czech Republic
Estonia
France
Greece
Hungary
Italy
Lithuania
Spain
Belgium: none is explicitly addressed but a case could be brought under general contract law principles.
PAGE 326
Table 16.c. Practices emerging in the course of contract execution addressed by relevant legislation within each category
Practices emerging in the course of
contract execution Competition law Unfair competition law Other
Any of the practices described in the
contract terms listed in the previous
part, though not mentioned in a specific
term
Bulgaria
France
Ireland
Latvia
Luxembourg
Romania
Austria
Poland
Croatia
Finland
France
Hungary
Italy
Lithuania
Romania
Slovakia
Sweden
Unfair use of confidential information
Hungary
France
Latvia
Luxembourg
Austria
Bulgaria
Czech Republic
Estonia
Finland
France
Germany
Greece
Lithuania
Poland
Slovakia
Slovenia
Spain
Croatia
Czech Republic
Finland
Hungary
Lithuania
Poland
Spain
Sweden
Intra chain discrimination
Cyprus
Denmark
Finland
France
Luxembourg
Malta
Slovenia
Spain Slovakia
Encroachment
France
Luxembourg
Spain
- Slovakia
Tortuous interference France
Luxembourg
France
Spain
Slovakia
The Netherlands
Unfair contract termination
Bulgaria
Croatia
Denmark
France
Greece
Slovenia
Croatia
Estonia
Finland
France
PAGE 327
Practices emerging in the course of
contract execution Competition law Unfair competition law Other
Hungary
Luxembourg
Portugal
Romania
Greece
Hungary
Italy
Slovakia
Sweden
The Netherlands
Abuse of economic dependence
Cyprus
Czech Republic
Denmark
Finland
France
Germany
Hungary
Latvia
Luxembourg
Malta
Portugal
Romania
Spain
The Netherlands
Czech Republic
Greece
Luxembourg
Spain
Czech Republic
Estonia
Finland
France
Italy
Portugal
Spain
Sweden
The Netherlands
Other
France
Latvia
Malta
Poland
Portugal
Poland
Slovakia
Estonia
France
Lithuania
Spain
Belgium: none is explicitly addressed but a case could be brought under general contract law principles.
PAGE 328
Table 16.d. Post-contractual practices addressed by relevant legislation within each category
Post-contractual practices Competition law Unfair competition law Others
Unfair use of confidential information
after contract expiry
Hungary
Latvia
Luxembourg
Romania
Spain
Bulgaria
Czech Republic
Estonia
Finland
France
Greece
Lithuania
Luxembourg
Poland
Slovakia
Slovenia
Spain
Croatia
Czech Republic
Finland
Hungary
Italy
Lithuania
Poland
Romania
Sweden
Enforcement of non-competition duties
after contract expiry
Bulgaria
Hungary
Luxembourg
Malta
Romania
Spain
Czech Republic
Luxembourg
France
Romania
Other
Germany
Luxembourg
Malta
Poland
Romania
Austria
France
Germany
Greece
Luxembourg
Poland
France
Romania
Belgium: none is explicitly addressed but a case could be brought under general contract law principles.
PAGE 329
16. SPECIFIC CONDUCTS/TERMS/PRACTICES ADDRESSED BY RELEVANT LEGISLATION WITHIN EACH CATEGORY
e. SUMMARY
16e. Specific conducts addressed by relevant legislation within each category. Summary table
The table shows the number of countries whose legislation addresses the identified practice/term
21. AVAILABLE REMEDIES PER COUNTRY: PUBLIC V. PRIVATE ENFORCEMENT
Table 21. Available remedies per country: Public V. Private Enforcement
Injunctions Invalidity or lack of legal effects Monetary Penalties Damages
Public enforcement
26 13 28 3 + 2 (criminal courts)
Private enforcement
25 28 10 28
Enforcement Injunctions Invalidity or lack of legal effects Monetary Penalties Damages
Public
Enforcement
Austria
Belgium
Bulgaria
Croatia
Cyprus
Czech Republic
Denmark
Estonia
Finland
France
Germany
Greece
Hungary
Italy
Latvia
Lithuania
Luxembourg
Malta
Poland
Portugal
Romania
Slovenia
Spain
Sweden
The Netherlands
UK
Austria
Belgium
Bulgaria
Cyprus
Denmark
Germany
Hungary
Latvia
Luxembourg
Romania
Slovenia
The Netherlands
UK
Austria
Belgium
Bulgaria
Croatia
Cyprus
Czech Republic
Denmark
Estonia
Finland
France
Germany
Greece
Hungary
Ireland
Italy
Latvia
Lithuania
Luxembourg
Malta
Poland
Portugal
Romania
Slovakia
Slovenia
Spain
Sweden
The Netherlands
Cyprus (Comp. Authority)
Malta (Comp. Authority)
Romania (Comp. Authority)
Italy: criminal courts
Germany: criminal courts
PAGE 351
Enforcement Injunctions Invalidity or lack of legal effects Monetary Penalties Damages
UK
Private
Enforcement
Austria
Belgium
Bulgaria
Croatia
Cyprus
Czech Republic
Denmark
Estonia
Finland
France
Germany
Greece
Ireland
Italy
Latvia
Lithuania
Luxembourg
Malta
Poland
Slovakia
Slovenia
Spain
Sweden
The Netherlands
UK
Austria
Belgium
Bulgaria
Croatia
Cyprus
Czech Republic
Denmark
Estonia
Finland
France
Germany
Greece
Hungary
Ireland
Italy
Latvia
Lithuania
Luxembourg
Malta
Poland
Portugal
Romania
Slovakia
Slovenia
Spain
Sweden
The Netherlands
UK
Denmark
Finland
France
Greece
Hungary
Lithuania
Luxembourg
Malta
Poland
The Netherlands
Austria
Belgium
Bulgaria
Croatia
Cyprus
Czech Republic
Denmark
Estonia
Finland
France
Germany
Greece
Hungary
Ireland
Italy
Latvia
Lithuania
Luxembourg
Malta
Poland
Portugal
Romania
Slovakia
Slovenia
Spain
Sweden
The Netherlands
UK
PAGE 352
22. AVAILABLE REMEDIES PER COUNTRY AND TYPE OF CONDUCTS: PUBLIC V. PRIVATE ENFORCEMENT
Table 22. Available remedies per country and type of conducts: public v. private enforcement
Injunctions Invalidity or lack of legal effects Monetary Penalties Damages
Public enf. Private enf. Public enf. Private enf. Public enf. Private enf. Public enf. Private enf.
Pre-contractual
practices 18 22 9 20 25 8 3 26
Unfair terms 21 22 11 23 24 6 2 26
Practices
during
execution 17 21 8 17 25 7 3 25
Unfair
termination 8 12 5 15 18 7 2 20
Post-
contractual
practices
12 16 6 11 17 5 2 21
Injunction Invalidity or lack of legal effects Monetary penalties Damages
Public
enforcement
Private
enforcement
Public
enforcement
Private
enforcement
Public
enforcement
Private
enforcement
Public
enforcement
Private
enforcement
Pre-
contractual
unfair
practices
Austria
Bulgaria
Croatia
Czech
Republic
Denmark
Finland
France
Germany
Italy
Latvia
Lithuania
Luxembourg
Poland
Romania
Slovenia
Spain
Sweden
UK
Austria
Belgium
Bulgaria
Czech Republic
Croatia
Cyprus
Denmark
Estonia
Finland
France
Germany
Ireland
Italy
Latvia
Lithuania
Malta
Poland
Slovakia
Slovenia
Austria
Belgium
Bulgaria
Cyprus
Germany
Hungary
Luxembourg
Romania
UK
Austria
Belgium
Cyprus
Czech Republic
Estonia
Finland
France
Germany
Hungary
Ireland
Italy
Luxembourg
Romania
Poland
Portugal
Slovenia
Spain
Sweden
The Netherlands
Austria
Belgium
Bulgaria
Croatia
Cyprus
Czech
Republic
Denmark
Estonia
Finland
France
Germany
Greece
Hungary
Italy
Latvia
Lithuania
Luxembourg
Malta
Finland
France
Lithuania
Luxembourg
Malta
Poland
Romania
Sweden
Cyprus
Malta
Romania
Austria
Belgium
Bulgaria
Cyprus
Czech Republic
Denmark
Estonia
Finland
France
Germany
Greece
Hungary
Ireland
Italy
Latvia
Lithuania
Luxembourg
Malta
Poland
PAGE 353
Injunction Invalidity or lack of legal effects Monetary penalties Damages
Public
enforcement
Private
enforcement
Public
enforcement
Private
enforcement
Public
enforcement
Private
enforcement
Public
enforcement
Private
enforcement
Spain
Sweden
UK
UK Poland
Romania
Slovakia
Slovenia
Spain
Sweden
UK
Portugal
Romania
Slovakia
Slovenia
Spain
Sweden
UK
Unfair terms
Austria
Bulgaria
Croatia
Cyprus
Czech
Republic
Denmark
Finland
France
Germany
Greece
Italy
Latvia
Lithuania
Luxembourg
Poland
Portugal
Romania
Slovenia
Spain
The
Netherlands
UK
Austria
Belgium
Bulgaria
Cyprus
Czech Republic
Denmark
Estonia
Finland
France
Germany
Greece
Ireland
Italy
Latvia
Lithuania
Malta
Poland
Portugal
Slovakia
Slovenia
The Netherlands
UK
Austria
Belgium
Bulgaria
Cyprus
Germany
Greece
Latvia
Luxembourg
Romania
The
Netherlands
UK
Austria
Belgium
Bulgaria
Croatia
Cyprus
Czech Republic
Estonia
Finland
France
Germany
Greece
Hungary
Ireland
Italy
Latvia
Lithuania
Poland
Portugal
Slovakia
Spain
Sweden
The Netherlands
UK
Austria
Belgium
Bulgaria
Croatia
Czech
Republic
Denmark
Estonia
Finland
France
Germany
Greece
Hungary
Italy
Latvia
Lithuania
Luxembourg
Malta
Poland
Portugal
Romania
Slovakia
Spain
The
Netherlands
UK
Finland
France
Greece
Luxembourg
Poland
Romania
Malta
Romania
Austria
Belgium
Bulgaria
Cyprus
Croatia
Czech Republic
Denmark
Estonia
Finland
France
Greece
Hungary
Ireland
Italy
Latvia
Lithuania
Luxembourg
Poland
Portugal
Romania
Slovakia
Slovenia
Spain
Sweden
The Netherlands
UK
UTPs
emerging
during
contract
execution
Austria
Bulgaria
Croatia
Cyprus
Czech
Austria
Belgium
Bulgaria
Croatia
Cyprus
Austria
Belgium
Cyprus
Germany
Greece
Austria
Belgium
Bulgaria
Croatia
Cyprus
Austria
Belgium
Bulgaria
Croatia
Cyprus
Finland
France
Hungary
Lithuania
Luxembourg
Cyprus
Malta
Romania
Austria
Belgium
Bulgaria
Croatia
Cyprus
PAGE 354
Injunction Invalidity or lack of legal effects Monetary penalties Damages
Public
enforcement
Private
enforcement
Public
enforcement
Private
enforcement
Public
enforcement
Private
enforcement
Public
enforcement
Private
enforcement
Republic
Denmark
Finland
France
Italy
Latvia
Lithuania
Luxembourg
Poland
Romania
Slovenia
Spain
The
Netherlands
Czech Republic
Denmark
Estonia
Finland
France
Germany
Ireland
Italy
Latvia
Lithuania
Malta
Poland
Slovakia
Slovenia
Spain
The Netherlands
Luxembourg
Romania
The
Netherlands
Czech Republic
Estonia
Finland
France
Germany
Greece
Hungary
Ireland
Lithuania
Portugal
Slovakia
The Netherlands
Czech
Republic
Denmark
Estonia
Finland
France
Germany
Greece
Hungary
Italy
Latvia
Lithuania
Luxembourg
Malta
Poland
Portugal
Romania
Slovakia
Spain
The
Netherlands
UK
Poland
Romania
Czech Republic
Denmark
Estonia
Finland
France
Germany
Greece
Hungary
Ireland
Italy
Latvia
Lithuania
Luxembourg
Poland
Portugal
Romania
Slovakia
Slovenia
Spain
The Netherlands
Unfair
contract
termination
Bulgaria
Croatia
Czech
Republic
Denmark
Luxembourg
Portugal
Romania
Slovenia
Austria
Belgium
Bulgaria
Czech Republic
Denmark
Estonia
Germany
Ireland
Lithuania
Malta
Slovakia
Slovenia
Austria
Belgium
Germany
Luxembourg
Romania
Austria
Croatia
Czech Republic
Estonia
Finland
France
Germany
Greece
Hungary
Ireland
Italy
Lithuania
Poland
Portugal
Slovakia
Austria
Belgium
Bulgaria
Croatia
Czech
Republic
Denmark
Estonia
France
Germany
Hungary
Italy
Lithuania
Luxembourg
Malta
Poland
Finland
France (amende
civile sur l'action du
ministre): civil fine
possible
Hungary
Lithuania
Luxembourg
Poland
Romania
Malta
Romania
Belgium
Bulgaria
Croatia
Czech Republic
Denmark
Estonia
Finland
France
Germany
Greece
Hungary
Ireland
Italy
Lithuania
Luxembourg
Poland
PAGE 355
Injunction Invalidity or lack of legal effects Monetary penalties Damages
Public
enforcement
Private
enforcement
Public
enforcement
Private
enforcement
Public
enforcement
Private
enforcement
Public
enforcement
Private
enforcement
Portugal
Romania
Slovakia
Portugal
Romania
Slovakia
Slovenia
Post-
contractual
practices
Austria
Bulgaria
Croatia
Denmark
France
Italy
Lithuania
Luxembourg
Poland
Romania
Slovenia
Spain
Austria
Belgium
Bulgaria
Czech Republic
Denmark
Estonia
France
Germany
Ireland
Italy
Lithuania
Malta
Poland
Slovakia
Slovenia
Spain
Austria
Belgium
Bulgaria
Germany
Luxembourg
Romania
Austria
Belgium
Bulgaria
Croatia
Czech Republic
Estonia
Germany
Greece
Ireland
Poland
Slovakia
Austria
Belgium
Bulgaria
Croatia
Denmark
Estonia
France
Germany
Hungary
Italy
Lithuania
Luxembourg
Malta
Poland
Romania
Slovakia
Spain
Finland
France
Luxembourg
Poland
Romania
Malta
Romania
Austria
Belgium
Bulgaria
Croatia
Czech Republic
Denmark
Estonia
Finland
France
Germany
Greece
Hungary
Ireland
Italy
Lithuania
Luxembourg
Poland
Romania
Slovakia
Slovenia
Spain
PAGE 356
23. AVAILABLE REMEDIES PER COUNTRY AND TYPE OF RELEVANT LEGISLATION
Table 23a. Available remedies per country and type of relevant legislation
Competition Law (total: 26 countries)
Countries Injunction Invalidity or lack of legal
effects Monetary penalties
Astreintes
(to be verified by national
experts)
Damages
Austria X X X - X
Belgium X X X - -
Bulgaria X X X X X
Croatia X - X - X
Cyprus X X X X X
Czech Republic X X X - X
Denmark X X X - X
Estonia X - X - -
Finland X - X - X
France X X X - X
Germany X X X X X
Greece
Hungary - - X X -
Ireland X X X - X
Italy X X X - X
Latvia X X X X X
Lithuania X - X X X
Luxembourg X X X - X
Malta X X X - X
Poland X X X X X
Portugal X X X - X
Romania X X X - X
Slovakia
Slovenia X X X X X
Spain X X X - X
Sweden X X - - X
The Netherlands X X X X X
United Kingdom X X X - X
Total 25 21 25 8 23
PAGE 357
Table 23b. Available remedies per country and type of relevant legislation
Unfair Competition Law (total: 17 countries), Contract Law (total: 18 countries) and Other type of Legislation (total: 23 countries)
Countries Injunction Invalidity or lack of legal
effects Monetary penalties Astreintes Damages
Unf.
Comp.
Contract
Law Other
Unf.
Comp.
Contract
Law Other
Unf.
Comp.
Contract
Law Other
Unf.
Comp.
Contract
Law Other
Unf.
Comp.
Contract
Law Other
Austria X X X - - - - - X X
Belgium X X - X X
Bulgaria X - X X X
Croatia - X X X - X - - X X
Cyprus X X X - X
Czech
Republic X X X X - X - - X X
Denmark X X X - X
Estonia - - - X - - - - X X
Finland X X - X X X - X - X
France X X X - X X - X X - - X X X X
Germany X - X X X - - - X X
Greece X X X - X - - - X X
Hungary - X X X - X - X X -
Ireland - n/a X n/a - - - - X X
Italy X X X - X X - X X - X X X X X
Latvia X - X - X
Lithuania X X X X X X - X X - X X X X
Luxembourg X - X - X X - - X X
Malta X X - - X X - - X - X
Poland X X X X - X - X - - - X X -
Portugal X - X X - X X - - X
Romania - - X - X
Slovakia X X - X X - - - X - - - X X -
Slovenia X X - X X X X - X -
Spain X X X - - X - X X - - - X X X
Sweden X X X
The
Netherlands - - X X - - - - X X
United
Kingdom - X X - - X - - - X
Total 16 8 16 8 15 12 9 5 17 3 3 7 16 14 18
PAGE 358
Table 23c. Available remedies per country and type of relevant legislation
Criminal Courts
Competition Law
(26 countries)
Unfair Competition Law
(17 countries)
Contract Law
(18 countries)
Other
(23 countries)
Injunction 2 2 0 1
Invalidity or lack of legal
effects 1 0 0 0
Monetary penalties 7 2 2 6
Astreintes
To be verified 1 1 0 0
Damages 0 1 0 0
Criminal sanctions (e.g.
imprisonment) 5 5 2 5
Competition Law Unfair Competition Law Contract Law Other
Injunction France
UK
Austria
Germany
France
Invalidity or lack of legal
effects
UK
Monetary penalties
Cyprus
France
Germany
Ireland
Slovenia
Spain
UK
Czech Republic
Germany
Estonia
France
Denmark
France
Malta
Poland
Slovenia
Spain
Astreintes
To be verified
Slovenia Slovenia
Damages Germany
Criminal sanctions (e.g.
imprisonment)
Cyprus
Ireland
Poland
Slovenia
UK
Czech Republic
Germany
Greece
Poland
Slovenia
Finland
France
Denmark
France
Malta
Poland
UK
PAGE 359
Table 23d. Available remedies per country and type of relevant legislation
Administrative Authorities
(Competition Authorities and other administrative bodies)
Competition Law
(26 countries)
Unfair Competition Law
(17 countries)
Contract Law
(18 countries)
Other
(23 countries)
Injunction 23 5 2 10
Invalidity or lack of legal
effects 11 1 0 2
Monetary penalties 26 1 5 10
Astreintes
To be verified 3 1 1 0
Damages 3 0 0 1
Competition Law Unfair Competition Law Contract Law Other
Injunction
Austria
Belgium
Bulgaria
Croatia
Cyprus
Czech Republic
Denmark
Estonia
Finland
France
Germany
Italy
Latvia
Lithuania
Luxembourg
Malta
Poland
Portugal
Romania
Slovenia
Spain
Sweden
The Netherlands
Austria
Bulgaria
Czech Republic
Greece
Slovenia
Czech Republic
Spain
Croatia
Cyprus
France
Greece
Hungary
Italy
Latvia
Lithuania
Poland
Slovenia
Invalidity or lack of legal effects
Austria
Belgium
Bulgaria
Cyprus
Denmark
Bulgaria
Cyprus
Hungary
PAGE 360
Competition Law Unfair Competition Law Contract Law Other
Germany
Latvia
Romania
Slovenia
The Netherlands
UK
Monetary penalties
Austria
Belgium
Bulgaria
Croatia
Cyprus
Czech Republic
Denmark
Estonia
Finland
France
Germany
Hungary
Ireland
Italy
Latvia
Lithuania
Luxembourg
Malta
Poland
Portugal
Romania
Slovenia
Spain
Sweden
The Netherlands
UK
Bulgaria
Czech Republic
France
Italy
Slovakia
Spain
Cyprus
France
Hungary
Italy
Lithuania
Poland
Portugal
Slovakia
Slovenia
Spain (administrative courts)
Astreintes
To be verified
Bulgaria
Latvia
The Netherlands
Bulgaria The Netherlands
Damages
Cyprus
Malta
Romania
Cyprus
PAGE 361
Table 23e. Available remedies per country and type of relevant legislation
Civil Court
Competition Law
(26 countries)
Unfair Competition Law
(17 countries)
Contract Law
(18 countries)
Other
(23 countries)
Injunction 17 15 9 11
Invalidity or lack of legal
effects
14 8 15 10
Monetary penalties 2 6 2 2
Astreintes
To be verified 1 0 1 2
Damages 22 15 15 12
Competition Law Unfair Competition Law Contract Law Other
Injunction
Belgium
Bulgaria
Cyprus
Czech Republic
Finland
France
Germany
Ireland
Italy
Latvia
Lithuania
Luxembourg
Malta
Slovenia
Sweden
The Netherlands
UK
Austria
Bulgaria
Czech Republic
Finland
France
Germany
Greece
Italy
Lithuania
Luxembourg
Malta
Poland
Slovakia
Slovenia
Spain
Croatia
Czech Republic
Finland
France
Italy
Lithuania
Poland
Portugal
Slovakia
Belgium
Croatia
Cyprus
Denmark
France
Greece
Italy
Lithuania
Slovenia
Spain
UK
Invalidity or lack of legal
effects
Belgium
Bulgaria
Cyprus
Czech Republic
France
Italy
Latvia
Luxembourg
Poland
Bulgaria
Czech Republic
France
Germany
Greece
Luxembourg
Poland
Slovakia
Croatia
Czech Republic
Estonia
Finland
France
Germany
Hungary
Ireland
Italy
Croatia
Cyprus
Denmark
France
Greece
Italy
Lithuania
Portugal
Slovenia
PAGE 362
Competition Law Unfair Competition Law Contract Law Other
Portugal
Romania
Spain
Sweden
UK
Lithuania
Poland
Portugal
Slovakia
Sweden
UK
Spain
Monetary penalties
Finland
Luxembourg
Finland
Germany
Greece
Luxembourg
Malta
Poland
Finland
Lithuania
France
Greece
Astreintes
To be verified
Belgium Portugal Belgium
France
Damages
Belgium
Bulgaria
Croatia
Cyprus
Czech Republic
Denmark
Finland
France
Germany
Ireland
Italy
Latvia
Lithuania
Luxembourg
Malta
Portugal
Romania
Slovenia
Spain
Sweden
The Netherlands
UK
Austria
Bulgaria
Czech Republic
Finland
France
Germany
Greece
Italy
Luxembourg
Malta
Poland
Slovakia
Slovenia
Spain
Croatia
Czech Republic
Estonia
Finland
France
Germany
Hungary
Ireland
Italy
Lithuania
Poland
Slovakia
Spain
The Netherlands
UK
Belgium
Croatia
Cyprus
Denmark
France
Greece
Italy
Lithuania
Portugal
Romania
Spain
The Netherlands
PAGE 363
24. ARE THERE COLLECTIVE REMEDIES? CLASS ACTIONS? INJUNCTION WITH BINDING EFFECTS ERGA OMNES LIKE JUDICIAL
PROHIBITION OF A PRACTICE?
Table 24. Are there collective remedies? Class actions? Injunction with binding effects erga omnes like judicial prohibition of a practice?
Countries
Yes, there are remedies/procedures
due to protect collective interests of
enterprises
Injunction with binding
effects erga omnes like
judicial prohibition of a
practice
Invalidity or lack of
legal effects erga
omnes
Damages in case of
multi-offensive
UTPs
Class actions
Standing of
enterprises’
associations
Comp.
Unf.
Comp.
Contract
Law Other
Austria - - - - - -
Belgium - X - OTHER - - -
Bulgaria X X
COMPETITION/UNFAIR
COMPETITION - - - -
Croatia - - X OTHER OTHER - OTHER OTHER
Cyprus - - - - - - -
Czech
Republic - X X -
CONTRACT
LAW
UNFAIR
COMPETITION -
UNFAIR
COMPETITION
Denmark X X OTHER - - - -
Estonia - - - - - - -
Finland X - X - CONTRACT
LAW
- - -
France - - - X - - OTHER OTHER
Germany X X X - - - -
COMPETITION
UNFAIR
COMPETITION
Greece - X - - - - -
Hungary - - - - - - - -
Ireland - - - - - - - -
Italy
- X X X - CONTRACT
LAW OTHER OTHER
CONTRACT LAW
[subject to
interpretation]
CONTRACT LAW
OTHER
UNFAIR
COMPETITION
Latvia X - COMPETITION COMPETITION - COMPETITION COMPETITION
Lithuania X X - X - - - -
COMPETITION
[request to start
investigation]
PAGE 364
Countries
Yes, there are remedies/procedures
due to protect collective interests of
enterprises
Injunction with binding
effects erga omnes like
judicial prohibition of a
practice
Invalidity or lack of
legal effects erga
omnes
Damages in case of
multi-offensive
UTPs
Class actions
Standing of
enterprises’
associations
Comp.
Unf.
Comp.
Contract
Law Other
Luxembourg - X - - - - - -
Malta X X X - COMPETITION - - -
Poland X X X - UNFAIR COMPETITION UNFAIR
COMPETITION
- - -
Portugal - - - - - - -
Romania - - - - - - -
Slovakia
X - - - UNFAIR
COMPETITION
UNFAIR
COMPETITION - -
Slovenia - - X - - - - -
Spain - X - X - - - - -
Sweden - X - UNFAIR COMP. - - - -
The
Netherlands - X X
CONTRACT
LAW/OTHER - - - -
United
Kingdom X X X - - - COMPETITION -
Total
Countries 9 11 7 11 7 10 4 4 10
PAGE 365
I.G. How are cases litigated?
PAGE 366
25. FREQUENCY OF LITIGATION
Table 25. Frequency of litigation
Competition Law Unfair Competition Law Other legislation
Countries Frequent Uncommon Non-
existent
Don’t
know
Frequent Uncommon Non-
existent
Don’t
know
Frequent Uncommon Non-
existent
Don’t
know
Austria - - - - - X - - - - - -
Belgium - - - X - - - - X - - -
Bulgaria - X (priv.
enf.)
- - X
(publ.enf.)
- - - - - -
Croatia X - - - - - - - - X X -
Cyprus - X - - - - - - - - X -
Czech
Republic
- X - - X - - - - - X -
Denmark - - - X - - - - - - X -
Estonia - X - - - - X - - - X -
Finland - X - - - X - - - X
France - - X - - X X
Germany - X - - - X - - - X - -
Greece - - - - X - - - X - - -
Hungary - X - - - - - - - X X -
Ireland - X - - - - - - - - - -
Italy - X - - X - - - X X X -
Latvia - X - - - - - - X X - -
Lithuania - X - - - X - - X X - -
Luxembourg - X - - - - X - - - - -
Malta - X - - - X - - - X - -
Poland - X - - X - - - X X - -
Portugal - X - - - - - - X - - -
Romania - X - - - - - - - - X -
Slovakia - - - - - X - - - X - -
Slovenia - - - X - - - X X - - -
Spain - X - - X - - - - X - -
Sweden X - - X - - -
The
Netherlands
- X - - - - - - X -
United
Kingdom
- X - - - - - - - X X -
Total 1 20 0 4 7 7 2 2 8 13 9 1
PAGE 367
Table 26. Are pre-trial settlements frequent?
Countries Frequent Uncommon Non-existent Don’t know
Austria - - - X
Belgium - - - X
Bulgaria - X (UNFAIR COMPETITION) - -
Croatia - X (OTHER, trade) X (COMPETITION) X
Cyprus X (COMPETITION)
X (OTHER, advertising)
- - -
Czech Republic - - - X
Denmark - X (OTHER, mark) - X
Estonia - - - X
Finland - - - X
France - - X (OTHER, minimum resale prices) X
Germany - - - X
Greece - - - X
Hungary - X (COMPETITION)
X (OTHER, cc)
X (OTHER, trade, food) -
Ireland - - - X
Italy X (OTHER, franchising) X (COMPETITION)
X (OTHER, cc)
X (OTHER, food; consumer law applied to
B2B – both recent legislation)
X
Latvia - - - X
Lithuania - X (COMPETITION)
X (UNFAIR COMPETITION)
X (OTHER, retailers)
- X
Luxembourg - X (COMPETITION) - X
Malta - - - X
Poland - X (COMPETITION)
X (UNFAIR COMPETITION)
X (OTHER, cc and pharmaceutical)
- -
Portugal - - - X
Romania - X (COMPETITION) - X
Slovakia X (UNFAIR COMPETITION)
X (OTHER, advertising)
- - X
Slovenia - - - X
Spain X (COMPETITION)
X (UNFAIR COMPETITION)
- - -
Sweden - - X (UNFAIR COMPETITION) -
The Netherlands X (OTHER, cc) - - X
United Kingdom - X (COMPETITION) - X
Total countries 5 10 5 23
PAGE 368
I.H. How are cross-border cases addressed?
PAGE 369
27. ARE LITIGANTS MOST OFTEN FROM DIFFERENT COUNTRIES?
Table 27. Are litigants most often from different countries?
RELEVANT LEGISLATION
(if yes, specification of type of legislation)
Countries Yes No
Austria - X
Belgium - X
Bulgaria - X
Croatia - X
Cyprus - X
Czech Republic - X
Denmark - X
Estonia - X
Finland X
France (UNF.COMP: interesting case law, but not “more common” than
domestic litigation)
X
Germany - X
Greece - X
Hungary - X
Ireland X
Italy - X
Latvia - X
Lithuania - X
Luxembourg - X
Malta X (UNFAIR COMPETITION, Commercial Code: only sometimes) X
Poland - X
Portugal - X
Romania - X
Slovakia - X
Slovenia - X
Spain X (OTHER, Advertising) X
Sweden - X
The Netherlands - X
United Kingdom - X
Total 2 28
PAGE 370
28. B2B UNFAIR TRADE PRACTICE AND PRIVATE INTERNATIONAL LAW DISPOSITIONS
Table 28. B2B Unfair Trade Practice and Private International Law Dispositions
Conflict-of-law rules providing specific rules concerning B2B
unfair practices
Legislation, dealing with unfair B2B trading practices, applying
on a mandatory basis to transnational relations or transactions
regardless of the law normally applicable (lois de police)
Countries Yes No Yes No
Austria - X - X
Belgium - X - X
Bulgaria X X -
Croatia - X X -
Cyprus - X - X
Czech Republic - X - X
Denmark - X - X
Estonia - X - X
Finland - X - X
France - X X -
Germany - X - X
Greece - X - X
Hungary - X - X
Ireland - X - X
Italy - X X -
Latvia - X - X
Lithuania X - - X
Luxembourg - X - X
Malta - X X
Poland - X - X
Portugal - X - X
Romania - X - X
Slovakia - X X -
Slovenia - X - X
Spain - X - X
Sweden - X - X
The Netherlands X - - X
United Kingdom - X - X
Total 2 26 6 22
PAGE 376
ANNEX V– COMPARATIVE TABLES ON PRIVATE REGULATION
PAGE 377
STUDY ON UNFAIR B2B PRACTICES
IN THE RETAIL SUPPLY CHAIN
ANNEX V
PRIVATE REGULATION
PAGE 378
STUDY ON UNFAIR B2B PRACTICES IN THE RETAIL SUPPLY CHAIN
COMPARATIVE LAW UNIT
Rome/Trento, 6 February 2014
LIST OF TABLES
prepared by Fabrizio Cafaggi (EUI/University of Trento/SSPA Rome)
with the collaboration of Paola Iamiceli and Luana Bebber (University of Trento) on the basis of material collected by Paola Iamiceli, Luana Bebber and Anabela Brito (CEPS)
Comparative Tables on Private Regulation
The tables included in this Annex and in the comments in the Report have been prepared on the basis of the information provided by the National Experts and submitted to them for revision and approval. Most but not all National Experts have been able to revise
and approve this document.
Our acknowledgment and gratitude go to each National Expert and to Cristina Macovei (College of Europe) for enabling and supporting our dialogue and interaction.
PAGE 379
LIST OF TABLES
edited by Fabrizio Cafaggi
with the collaboration of Paola Iamiceli and Luana Bebber
Part 2: Private Regulation
29. List of examined private regulatory instruments per country 30. Which legal systems address UTPs through domestic or international private regulation? 31. The possible relation between legislation and national private regulation
I.A. What are objectives and scope of application of relevant private regulation?
32. Cross-sector v. sector-specific private regulation 33. Specific private regulation on retail trade/distribution 34. The stated objectives of relevant private regulation 35. The possible distinction between large, medium, small and micro enterprises 36. Private regulation: B2B only v. B2B and B2C relations
I.B. How are unfair practices defined and identified by private regulation?
37. The use of general clauses and the one of black or grey lists 38. Does private regulation address pre-contractual practices, unfair terms, practices in the course of contract execution, post-
contractual practices? 39. Specific conducts addressed by private regulation
a. Pre-contractual practices b. Unfair terms c. Practices emerging in the course of contract execution d. Post-contractual practices e. Summary table
40. Does the rule take into account the impact of unfair trading practices on the whole supply chain while defining such practices?
I.C. What is the mode of enforcement and the remedies in private regulation?
PAGE 380
41. Are there remedies and enforcement provided by private regulatory instruments? 42. What is the mode of enforcement? Public enforcement v. private enforcement 43. Available remedies provided by private regulation
a. Specification of remedies provided by regulatory instruments
I.D. How are cases litigated? 44. Is litigation frequent? 45. Are pre-trial settlements frequent?
I.E. How are cross-border cases addressed?
46. Are litigants most often from different countries?
PAGE 381
1. LIST OF EXAMINED PRIVATE REGULATORY INSTRUMENTS PER COUNTRY
Table 1. List of examined Private Regulation per country
Private regulatory instruments adopted at European or Global level
European Instruments
Vertical Relationships in the Food Supply Chain: Principles of Good Practice (European Principles), 2011
EU Code of Contractual Clauses and Practices to be respected in Vehicle Manufacturer/Authorised Dealersand Repairer in
Contractual Relations (CECRA), 2010
EU Code of Good Practice regarding certain Aspects of Vertical Agreements in Motor Vehicle Sector (ACEA)
EU EUCOMED Compliance & Competition Law Guidelines, 2004
Global Instruments International Chamber of Commerce Code of Advertising and Marketing Communication Practice, 2011
Generic Fairtrade Trade Standard, 2011
Private regulatory instruments adopted at domestic level
Countries
Austria Absent at domestic and international level
Belgium Code of Conduct for fair Relationships between Suppliers and Purchasers in the Agro-food Chain, 2010
Bulgaria Absent at domestic and international level
Croatia
Code of Business Ethics, 2005
Code of Ethics in Advertising, 2001
Code of Ethics in Direct Sales, 2004
Special Practices in Retail Sale, 1995
Cyprus Absent at domestic level; adopted private regulation developed at European level
Czech Republic Absent at domestic and international level
Denmark Absent; however reference to a debate on the adoption of an ethical code by the food industry in the manner of Good
Practices Principles adopted at EU level
Estonia
Estonian Bakers’Code of Honour, 2000
Estonian Traders’Association’s Code On Good Trading Conducts, 2008
Code of Ethics of The Association of Estonian Information Technology and Telecommunications, 2000
Articles of Association of the Estonian Association of SME’s, 2011
Finland Absent at domestic level; adopted private regulation developed at European and international level
France
Code de bonnes pratiques en matière de relations commerciales ètablies, 2013
Accord sur le dèfèrencement (Tools and Home Decoration), 2001
Code de bonnes pratiques relative à la relation client-fournisseur dans la soistraitance industrielle au sein de la filière
automobile, 2006
PAGE 382
Charte des relations inter-enterprises + Label Relations fournisseurs responsables, 2010
Recueil de bonnes pratiques de la federation francaise de la franchise
Charte d’èthique de la federation EBEN (distribution firms for stationery and creative leisures products)
Germany Absent at domestic and international level
Greece Code of Advertising, 2003
Code of Conduct of the Hellenic Association of Pharmaceutical Companies, 2002
Hungary Code of Ethics of the Hungarian Chamber of Commerce and Industry, 2004
Ireland Absent at domestic level; adopted private regulation developed at European level
Italy
Code of Commercial Ethics for the Sale of Furniture and Dècor
Code of Ethics in the Field of Chemical Commerce, 2012
Code of Conduct of Assofranchising, 2006
Standard Model Contracts for Sub-supply of Products/services or Processing
Model contracts for commercial agency, distribution and sale for exporters in the field of furniture, 2003 (first draft)
Latvia Code of Good Commercial Practice in Trade, 2006
Lithuania Code of Good Retailers Practice, 2007 (not applied anymore since 2009, after introduction of pertinent legislation)
Luxembourg Absent at domestic and international level
Malta Absent at domestic and international level
Poland Code of Ethics in Advertising, 2008
Portugal Code of Commercial Good Conduct, 1997
PARCA (Monitoring Platform of relations in Agribusiness Chain), 2011
Romania Absent at domestic and international level
Slovakia Ethical Principles of Advertising Practice Valid in the Slovak Republic (Code of Ethics), 2012
Slovenia Code of conduct among stakeholders in the Food (grocery) Supply Chain, 2011
Slovenian Code of Advertising Practice
Spain
Deontological Code of the Spanish Association of Enteral Nutrition Products Manufacturers and Distributors,
Spanish Good Practices Code on medicine Promotion and on Interrelation of Pharmaceutical Industry with Health
Professionals,
Sweden Absent at domestic level; adopted private regulation developed at European and international level
The Netherlands Dutch Code of Advertising, 1964
FNLI Code of Conduct (food), 2008
Code of Conduct Air Cargo Netherlands, 2008
Code of Conduct Dutch Association of Manufacturers of School Furniture
United Kingdom Groceries Supply Code of Practice
Committee of Advertising Practice Codes
Total instruments 45 examined instruments (39 developed at domestic level, 6 at international or European level)
Total countries 20 countries (16 adopting only or also domestic private regulation + 4 adopting only PR developed at European or
international level)
PAGE 383
2. WHICH LEGAL SYSTEMS ADDRESS UTPS THROUGH DOMESTIC OR INTERNATIONAL PRIVATE REGULATION?
Table 2. Which legal systems address UTPs through domestic or international private regulation?
Countries
Use of private regulation (as
developed at domestic or
international level)
Use of private regulation
developed at domestic level
No use of private regulation
developed at domestic level
Use of other international
(EU/Global) instruments of
private regulation
Austria No X
Belgium X X
Bulgaria No X
Croatia X X
Cyprus X X X (EU Instruments)
Czech Republic No X
Denmark No X
Estonia X X
Finland
X X X (Fairtrade; International
Chamber of Commerce’s
Consolidated ICC Code of
Advertising and Marketing
Communication Practice)
France
X X X
(European Code of conduct of the
franchise)
Germany No X
Greece X X
Hungary X X
Ireland X
Italy X X X
(European Code of Franchising)
Latvia X X N/a
Lithuania
X X X
(International Chamber of
Commerce’s Consolidated ICC
Code of Advertising and
Marketing Communication
Practice)
Luxembourg No X
Malta No X
Poland X X X
PAGE 384
Countries
Use of private regulation (as
developed at domestic or
international level)
Use of private regulation
developed at domestic level
No use of private regulation
developed at domestic level
Use of other international
(EU/Global) instruments of
private regulation
(European Code of Franchising
Ethics)
Portugal X X
Romania No X
Slovakia
X X X
(Code of Advertising based on
ICC Code; member of EASA)
Slovenia X X
Spain X X
Sweden X X X (ICC Code of Advertising)
The Netherlands X X X
United Kingdom X X
Total 20 16 12 9
PAGE 385
3. THE POSSIBLE RELATION BETWEEN LEGISLATION AND NATIONAL PRIVATE REGULATION
Table 3. The possible relation between legislation and national private regulation
Countries Private Regulation Legislation in the same area,
addressing similar concerns
Which comes first (PR/L) Type of relation btw PR/L Either failure/success
Austria Absent
Belgium Code of Conduct for fair
Relationships between
Suppliers and Purchasers
in the Agro-food Chain,
2010
Law of 6 April 2010 on unfair
trading practices
L Complementary, different
focus
Not relevant
Bulgaria Absent
Croatia
Code of Business Ethics,
2005
Law on Trade Code: 2005
Law: 2008 (PR)
Law on Trade provides more
effective enforcement
success
Code of Ethics in
Advertising, 2001
Law on Prohibiting Advertising Code: 2001 (PR)
Law: 2003
Law provides more effective
enforcement
success
Code of Ethics in Direct
Sales, 2004
Law on Trade Code: 2004 (PR)
Law: 2008
Law provides more effective
enforcement
success
Special Practices in Retail
Sale, 1995
Law on Obligatory Relations Code: 1995 (PR)
Law: 2005
Law provides more effective
enforcement
success
Cyprus No Private Regulatory Instruments at domestic level
Czech
Republic
Absent
Denmark Absent- however reference
to a debate on the
adoption of an ethical
code by the food industry
in the manner of Good
Practices Principles
adopted at EU level
Estonia
Estonian Bakers’Code of
Honour, 2000
Legislation is addressing similar
concern
PR Combined, both should be
followed
Success
Estonian
Traders’Association’s
Code On Good Trading
Conducts, 2008
More defined than regulation PR Combined Success
Code of Ethics of The
Association of Estonian
Similar concerns PR Combined Success
PAGE 386
Countries Private Regulation Legislation in the same area,
addressing similar concerns
Which comes first (PR/L) Type of relation btw PR/L Either failure/success
Information Technology
and Telecommunications,
2000
Articles of Association of
the Estonian Association
of SME’s, 2011
Legislation in the same area L Articles make reference to
legislation
Failure
Finland No Private Regulatory Instruments at domestic level
France
Code de bonnes pratiques
en matière de relations
commerciales ètablies,
2013
Art. L. 442-6, I 5°, comm. code L Law relies on PR
Accord sur le
dèfèrencement (Tools and
Home Decoration), 2001
Art. L. 442-6, I 5°, comm. code L Law relies on PR Don’t know
Code de bonnes pratiques
relative à la relation
client-fournisseur dans la
soistraitance industrielle
au sein de la filière
automobile, 2006
Art. 441-3 to 441-6
Art. 442-6
General Contract law
L Signatories formally commit
to respect the law and to act
for the mutual and shared
interest of the parties
Charte des relations inter-
enterprises + Label
Relations fournisseurs
responsables, 2010
B2B contracts and practices L Specifying the commitments
of big firms as regards small
suppliers (SMEs) in order to
progressively improve the
relation
Success considering the 315
signatories. Don't know
about the application.
Recueil de bonnes
pratiques de la federation
francaise de la franchise
General contract law + rules on
franchise + B2B practices
L PR complements L: it
describes the type of good
behaviors expected
Charte d’èthique de la
federation EBEN
(distribution firms for
stationery and creative
leisures products)
General contract law, good faith,
loyalty
L Reaffirmation of general
principles of good faith
Germany Absent
Greece
Code of Advertising, 2003 Law 2251/94; law 146/1914 L L and PR operate in a
parallel way; no relevant
link
N/A
Code of Conduct of the
Hellenic Association of
PAGE 387
Countries Private Regulation Legislation in the same area,
addressing similar concerns
Which comes first (PR/L) Type of relation btw PR/L Either failure/success
Pharmaceutical
Companies, 2002
Hungary Code of Ethics of the
Hungarian Chamber of
Commerce and Industry,
2004
Act LVII of 1996 on the Prohibition of
Unfair and Restrictive Market Practices
L PR = general
L = specific
Success
Ireland No Private Regulatory Instruments at domestic level
Italy
Code of Commercial
Ethics for the Sale of
Furniture and Dècor
X Don’t know
Code of Ethics in the Field
of Chemical Commerce,
2012
X Don’t know
Code of Conduct of
Assofranchising, 2006
Law of 6 May 2004, n. 129 on
franchising
PR
(first draft: 1995)
Specification Don’t know
Standard Model Contracts
for Sub-supply of
Products/services or
Processing
Law of 18 June 1998, n. 192 on sub-
supply contracts in productive
activities
L Specification Don’t know
Model contracts for
commercial agency,
distribution and sale for
exporters in the field of
furniture, 2003 (first draft)
X Don’t know
Latvia Code of Good
Commercial Practice in
Trade, 2006
X (Abuse of dominant position by
retailers)
PR Specification, broader scope Failure of PR
Lithuania Code of Good Retailers
Practice, 2007 (not
applied anymore since
2009, after introduction of
pertinent legislation)
X (Law on Prohibition of Unfair
Practices of Retailers, 2009)
PR PR influenced the law and
then the law replaced the
code transposing the
majority of the rules of the
code
Failure of PR for
“facultative” nature
Luxembourg Absent
Malta Absent
Poland Code of Ethic in
Advertising, 2008
Act on Protection of Competition
and Consumers, 16 February 2007
Act on combating unfair
competition, 16 April 1993
Pharmaceutical Law, 6 September
L
PAGE 388
Countries Private Regulation Legislation in the same area,
addressing similar concerns
Which comes first (PR/L) Type of relation btw PR/L Either failure/success
2001
Portugal
Code of Commercial
Good Conduct, 1997
DL 370/93 (on what regards
discriminatory conditions)
L PR established an alternative
private dispute resolution
scheme
N/a
PARCA (Monitoring
Platform of relations in
Agribusiness Chain), 2011
Romania Absent
Slovakia Ethical Principles of
Advertising Practice
Valid in the Slovak
Republic (Code of Ethics),
2012
Act n. 147/2001 Coll. on
Advertising
L PR complements L by
stating ethical principles;
disputes often solved
through ADR provided
under PR
Presumably, PR as an
attempt to overcome failure
of L
Slovenia Code of conduct among
stakeholders in the Food
(grocery) Supply Chain,
2011
Protection of Competition Act
(1993)
L Specification -
Slovenian Code of
Advertising Practices,
2009
Consumer Protection Act L Specification -
Spain
Deontological Code of the
Spanish Association of
Enteral Nutrition Products
Manufacturers and
Distributors,
Unfair Competition Act (some
provisions)
L Overlapping in some cases
(comparative advertising);
specification in other cases
(misleading adv.); stricter
requirements in other cases
(denigratory acts)
Not relevant perspective
Spanish Good Practices
Code on medicine
Promotion and on
Interrelation of
Pharmaceutical Industry
with Health Professionals,
Unfair Competition Act (some
provisions)
L Overlapping in some cases
(comparative advertising);
specification in other cases
(misleading adv.).
Not relevant perspective
Sweden No Private Regulatory Instruments at domestic level
The
Netherlands
Dutch Code of
Advertising, 1964
Dutch Civil Code L PR has broaden scope N/a
FNLI Code of Conduct
(food), 2008
Code of Conduct Air
Cargo Netherlands, 2008
PAGE 389
Countries Private Regulation Legislation in the same area,
addressing similar concerns
Which comes first (PR/L) Type of relation btw PR/L Either failure/success
Code of Conduct Dutch
Association of
Manufacturers of School
Furniture, not mentioned
year of adoption
United
Kingdom
Groceries Supply Code of
Practice
Groceries Code Adjudicator Act,
2013
PR, but linked L to enforce the Code (PR) Legislation introduced
following failure of
voluntary code. Legislation
just adopted and not all in
force until June 2013.
Total
Instruments
11 Private Regulatory
Instruments come first
19: Legislation comes first
3: N/a
Total
Countries
6 Countries: Private
Regulatory Instruments
come first
12 Countries : Legislation
comes first
PAGE 390
I.A. What are objectives and scope of application of relevant private regulation?
PAGE 391
4. CROSS-SECTOR V. SECTOR-SPECIFIC PRIVATE REGULATION
Table 4. Cross-sector v. sector-specific private regulation
Countries All sectors of the
economy
Food/
Grocery
Medical and
pharmaceutical goods Textiles Automotive
Consumer
electronics Others
European
Instruments X
X (Automotive)
X (Motor)
X (Medical
Technology Industry)
Global
Instruments
X (Fairtrade)
X (Advertising)
Austria
Belgium X
Bulgaria
Croatia
X (Code of Ethics)
X (Advertising)
X (General Retail
Trade)
X (Direct Sales)
Cyprus No Private Regulatory Instruments at domestic level
Czech Republic
Denmark
Estonia
X (SMEs
Association/General)
X (General Retail
Trade)
X X (Information
Technology)
Finland No Private Regulatory Instruments at domestic level
France
X (2 General Retail
Trade)
X (Franchising)
X X (Tools and Home
Decoration)
X (stationery and
creative leisures
Products )
Germany
Greece X (Advertising) X
Hungary X (Code of
Ethics/General)
-
Ireland No Private Regulatory Instruments at domestic level
Italy X (Standard Model
Contract/Sub-supply)
X (Code of
Ethics/Furniture)
PAGE 392
Countries All sectors of the
economy
Food/
Grocery
Medical and
pharmaceutical goods Textiles Automotive
Consumer
electronics Others
X (Franchising) X (Chemical
Commerce)
X (Model
Contracts/Furniture)
Latvia X (General Retail
Trade)
Lithuania X (food/retail)
Luxembourg
Malta
Poland X (Code of Ethics)
Portugal X (General Retail
Trade)
X
Romania
Slovakia X (Advertising)
Slovenia X (Advertising) X
Spain X X
Sweden No Private Regulatory Instruments at domestic level
The Netherlands X (Advertising) X X (School furniture)
X (Air Cargo)
United Kingdom X (Advertising) X
Total Instruments 22 9 2 0 3 0 9
Total Countries 13+Global 8+EU 2 0 1+EU 0 4+EU
PAGE 393
5. SPECIFIC PRIVATE REGULATION ON RETAIL TRADE/DISTRIBUTION
Table 5. Specific private regulation on Retail Trade/Distribution
Countries General Retail Trade/Distribution
European Instruments -
Global Instruments -
Austria
Belgium -
Bulgaria
Croatia Special Practices in Retail Sale Nr. 16/95
Code of Ethics in Direct Sale of 2004
Cyprus No Private Regulatory Instruments at domestic level
Czech Republic
Denmark
Estonia Estonian Traders’ Association’s Code on Good Trading Conducts of 7 October 1998
Finland No Private Regulatory Instruments at domestic level
France Recueil de bonnes pratiques de la federation francaise de la franchise of 1972
Code de bonnes pratiques en matière de rupture de relations commerciales ètablies of 2013
Germany
Greece -
Hungary -
Ireland No Private Regulatory Instruments at domestic level
Italy Code of Conduct of Assofranchising of 1995
Latvia Code of Commercial Practice in Trade Nr. 061115/5 of 15 November 2006
Lithuania -
Luxembourg
Malta
Poland -
Portugal Code of Commercial Good Conduct of 17 July 1997
Romania
Slovakia -
Slovenia -
Spain -
Sweden No Private Regulatory Instruments at domestic level
The Netherlands -
United Kingdom -
Total Instruments 8 Instruments
Total Countries 6 Countries
PAGE 394
6. THE STATED OBJECTIVES OF PRIVATE REGULATION
Table 6. The stated objectives of private regulation
Countries 10+EU+Global 13+EU+Global 9+EU+Global 12+EU+Global 7+EU 5+EU 1+EU
PAGE 397
7. THE POSSIBLE DISTINCTION BETWEEN LARGE, MEDIUM, SMALL AND MICRO ENTERPRISES IN THE PRIVATE REGULATION
Table 7. Cases in which distinction is drawn between large, medium, small and micro enterprises in the private regulation (positive answers)
Countries General Schemes General Retail Trade Food Other sectors
European instruments X
Global Instruments X (Fairtrade)
Austria
Belgium
Bulgaria
Croatia
Cyprus No Private Regulatory Instruments at domestic level
Czech Republic
Denmark
Estonia
Finland No Private Regulatory Instruments at domestic level
France X (2 instruments) X (Tools and Home Decoration)
Germany
Greece
Hungary
Ireland No Private Regulatory Instruments at domestic level
Italy
Latvia
Lithuania X
Luxembourg
Malta
Poland
Portugal
Romania
Slovakia
Slovenia
Spain
Sweden No Private Regulatory Instruments at domestic level
The Netherlands
United Kingdom X
Total Instruments 1 3 2 1
Total Countries 1Global 2 2 1
PAGE 398
8. PRIVATE REGULATION: B2B ONLY V. B2B AND B2C
Table 8. Private regulation: B2B only v. B2B and B2C
Countries Private regulation B2B relations only Both B2C and B2B relations
European Instruments
European Principles in the Food Supply Chain X
EU Code of Contractual Clauses and Practices to be respected in
Vehicle Manufacturer/Authorised Dealersand Repairer in
Contractual Relations (CECRA)
X
EU Code of Good Practice regarding certain Aspects of Vertical
Agreements in Motor Vehicle Sector (ACEA)
X
EU EUCOMED Compliance & Competition Law Guidelines X
Global Instruments International Chamber of Commerce Code of Advertising and
Marketing Communication Practice
X
Generic Fairtrade Trade Standard X
Austria
Belgium Code of conduct in the agro-food chain X
Bulgaria
Croatia
Code of Business Ethics X
Code of Ethics in Advertising X
Code of Ethics in Direct Sales X
Special Practices in Retail Sale X
Cyprus No Private Regulatory Instruments at domestic level
Czech Republic
Denmark
Estonia
Estonian Bakers’Code of Honour X
Estonian Traders’Association’s Code On Good Trading Conducts X
Code of Ethics of The Association of Estonian Information
Technology and Telecommunications
X
Articles of Association of the Estonian Association of SME’s X
Finland No Private Regulatory Instruments at domestic level
France
Code de bonnes pratiques en matière de relations commerciales
ètablies
X
Accord sur le dèfèrencement (Tools and Home Decoration) X
Code de bonnes pratiques relative à la relation client-fournisseur
dans la soistraitance industrielle au sein de la filière automobile
X
Charte des relations inter-enterprises + Label Relations fournisseurs
responsables
X
Recueil de bonnes pratiques de la federation francaise de la X
PAGE 399
Countries Private regulation B2B relations only Both B2C and B2B relations
franchise
Charte d’èthique de la federation EBEN (distribution firms for
stationery and creative leisures products)
X
Germany
Greece
Code of Advertising X
Code of Conduct of the Hellenic Association of Pharmaceuthical
Companies
X
Hungary Code of Ethics of the Hungarian Chamber of Commerce and Industry X
Ireland
Italy
Code of Commercial Ethics for the Sale of Furniture and Dècor X
Code of Ethics in the Field of Chemical Commerce X
Code of Conduct of Assofranchising X
Standard Model Contracts for Sub-supply of Products/services or
Processing
X
Model contracts for commercial agency, distribution and sale for
exporters in the field of furniture
X -
Latvia Code of Good Commercial Practice in Trade X
Lithuania Code of Good Retailers Practice X
Luxembourg
Malta
Poland Code of Ethics in Advertising X
Portugal Code of Commercial Good Conduct X
PARCA X -
Romania
Slovakia Ethical Principles of Advertising Practice Valid in the Slovak
Republic (Code of Ethics)
X
Slovenia
Code of conduct among stakeholders in the food (grocery) supply
chain
X
Slovenian Code of Advertising Practice X
Spain
Deontological Code of the Spanish Association of Enteral Nutrition
Products Manufacturers and Distributors
X
Spanish Good Practices Code on medicine Promotion and on
Interrelation of Pharmaceutical Industry with Health Professionals
X
Sweden No Private Regulatory Instruments at domestic level
The Netherlands
Dutch Code of Advertising X
FNLI Code of Conduct (food) X
Code of Conduct Air Cargo Netherlands X
Code of Conduct Dutch Association of Manufacturers of School X
PAGE 400
Countries Private regulation B2B relations only Both B2C and B2B relations
Furniture
United Kingdom Groceries Supply Code of Practice X
Advertising Codes X
Total Instruments 31 14
Total Countries 12+EU+Global 8+Global
PAGE 401
I.B. How are unfair practices defined and identified by private regulation?
PAGE 402
9. THE USE OF GENERAL CLAUSES AND THE ONE OF BLACK OR GREY LISTS
Table 9. The use of general clauses and the one of black and grey lists
Countries
General clauses
without lists (black
and grey)
General clauses
with lists (black
and/or grey)
Both black and
grey lists Only black lists Only grey lists
An indication
of specific
modes of
enforcement
making the
practice
unfair
Specific
provisions for
certain types
of businesses
(e.g.
cooperative
businesses)
Other
European
instruments
1) Automotive/
Motor
1) Food - 1) Medical
Technology
Industry
- 1) Automotive
(fair contract
only)
Global
Instruments
1) Advertising 1) Advertising
2) Fairtrade
Austria
Belgium 1) Food
(recommendations)
- - - - - - -
Bulgaria
Croatia
1) General Retail
Trade
1) Code of
Ethics/General
2) Direct Sales
- 1) Advertising - - - -
Cyprus No Private Regulatory Instruments at domestic level
Czech Republic
Denmark
Estonia
1) Information
Technology
2) Food
3) SME’s
association/General
- - - 1) General
Retail Trade
- -
Finland No Private Regulatory Instruments at domestic level
France
1) Automotive
2) Stationery and
Creative Leisure
Products
1) Charte-Label
Relations/General
Retail trade (10
commitments for
responsible
purchasing, with
1)
Franchising:
good
behaviours
and processes
that should be
PAGE 403
Countries
General clauses
without lists (black
and grey)
General clauses
with lists (black
and/or grey)
Both black and
grey lists Only black lists Only grey lists
An indication
of specific
modes of
enforcement
making the
practice
unfair
Specific
provisions for
certain types
of businesses
(e.g.
cooperative
businesses)
Other
exemplary
practices; 36
practices deemed
unfair)
respected in
specific
situations
Germany
Greece 1) Advertising
2) Pharmaceutical
- - - - - - -
Hungary 1) Code of
Ethics/General
- - - - 1) Code of
Ethics/General
- -
Ireland No Private Regulatory Instruments at domestic level
Italy
1) Code of
Ethics/Furniture
2) Chemical
Commerce
3) Standard Model
Contracts/Sub-
supply
4) Model
contracts/Furniture
- - - - - - -
Latvia - 1) General Retail
Trade
- - - - - -
Lithuania - 1) Food/retail - - - - - -
Luxembourg
Malta
Poland - 1) Code of
Ethics/Commercial
- - - - - -
Portugal 1) General Retail
Trade
- - - - - - -
Romania
Slovakia 1) Advertising - - - - - - -
Slovenia 1) Food - - - - 1) Food
2) Advertising
1)
Advertising
-
Spain - 1) Food - - - 1)
pharmaceutical
- -
PAGE 404
Countries
General clauses
without lists (black
and grey)
General clauses
with lists (black
and/or grey)
Both black and
grey lists Only black lists Only grey lists
An indication
of specific
modes of
enforcement
making the
practice
unfair
Specific
provisions for
certain types
of businesses
(e.g.
cooperative
businesses)
Other
Sweden No Private Regulatory Instruments at domestic level
The Netherlands
- 1) Advertising 1) Food
2) School
Furniture
1) Air Cargo 1) School
Furniture
- - -
United Kingdom 1) Food
2) Advertising
Total Instruments 19 11 2 3 1 7 1 2
Total Countries 10+EU+Global 8+EU 1 2+EU 1 4+Global 1 1+EU
PAGE 405
10. DOES PRIVATE REGULATION ADDRESS PRE-CONTRACTUAL PRACTICES, UNFAIR TERMS, PRACTICES IN THE COURSE OF
CONTRACT EXECUTION AND POST-CONTRACTUAL PRACTICES?
Table 10. Does private regulation address pre-contractual practices, unfair terms, practices in the course of contract execution and post-contractual practices?
Countries Pre-contractual behaviour Contract terms definition Enforcement of contractual duties
or clauses Post-contractual behaviour
European
Instruments
1) Food
2) Medical Technology Industry
3) Automotive
1) Food
2) Medical Technology
Industry
3) Automotive
4) Automotive/Motor
1) Food
2) Medical Technology Industry
3) Automotive
1) Food
Global
Instruments
1) Advertising 1) Fairtrade 1) Fairtrade -
Austria
Belgium 1) Food 1) Food 1) Food 1) Food
Bulgaria
Croatia
1) Code of Ethics/General
2) Advertising
3) Direct Sales
4) General Retail Trade
1) Code of Ethics/General
2) Direct Sales
1) Code of Ethics/General
2) Direct Sales
-
Cyprus No Private Regulatory Instruments at domestic level
Czech Republic
Denmark
Estonia
Sme’s unanswered
(general principle)
1) Food
2) General Retail Trade
1) General Retail Trade 1) Information Technology
2) Food
3) General Retail Trade
-
Finland No Private Regulatory Instruments at domestic level
France
1) Automotive
2) Charte plus Label
1) Automotive
2) Charte plus Label
relations/General Retail Trade
3) Accord de déférencement
FMB/Unibal (notice period for
termination of the contract):
contract terms definition and/or
enforcement of contractual
duties.
1) Code de bonnes pratiques/general
retail trade
2) Tools and Home Decoration
3) Automotive
4) Charte plus Label
1) Charte plus Label
PAGE 406
Germany
Greece 1) Pharmaceutical
2) Advertising
- - -
Hungary 1) Code of Ethics/General 1) Code of Ethics/General 1) Code of Ethics/General 1) Code of Ethics/General
Ireland No Private Regulatory Instruments at domestic level
Italy
1) Model Contracts/Furniture
2) Code of Ethics/Furniture
3) Franchising
1) Standard Model
Contracts/Sub-supply
2) Code of Ethics/Furniture
3) Franchising
4) Model Contracts/Furniture
1) Standard Model Contracts/Sub-
supply
2) Code of Ethics/Furniture
3) Franchising
4) Model Contracts/Furniture
1) Code of Ethics/Furniture
2) Franchising
3) Model Contracts/Furniture
Latvia 1) General Retail Trade 1) General Retail Trade 1) General Retail Trade -
Lithuania - 1) General Retail Trade - -
Luxembourg
Malta
Poland 1) Code of Ethics/General 1) Code of Ethics/General - -
Portugal 1) General Retail Trade 1) General Retail Trade - -
Romania
Slovakia 1) Advertising - - -
Slovenia 1) Food
2) Advertising
1) Food 1) Food 1) Food
Spain 1) Food
2) Pharmaceutical
- - -
Sweden No Private Regulatory Instruments at domestic level
The Netherlands
1) Advertising
2) Food
3) School Furniture
4) Air Cargo
1) Food
2) Air Cargo
1) Food
2) School Furniture
-
United Kingdom 1) Food
2) Advertising
1) Food 1) Food 1) Food
Total Instruments 33 25 24 9
Total Countries 14+EU+Global 13+EU+Global 10+EU+Global 6+EU
PAGE 407
11. SPECIFIC CONDUCTS ADDRESSED BY PRIVATE REGULATION
a. PRE-CONTRACTUAL PRACTICES (NEGOTIATION AND CONTRACT FORMATION) IN THE PRIVATE REGULATION
Table 11.a. Pre-contractual practices in the private regulation
Pre-contractual practices General schemes General Retail Trade
Schemes/Distribution
Sector-specific schemes:
Food
Sector-specific Schemes:
Other Sectors
Withholding essential
information
Global Instruments
Croatia
Greece
Hungary
Poland
Slovenia
The Netherlands
Croatia
Italy
European Instruments
Belgium
Slovenia
Greece
Misleading advertising or
information
Global Instruments
Croatia
Greece
Hungary
Poland
Slovakia
Slovenia
The Netherlands
UK
Croatia
Italy
European Instruments
Estonia
Spain
Greece
UK
Aggressive practices
Global Instruments
Croatia
Poland
Slovakia
Slovenia
The Netherlands
- European Instruments
Spain
-
Discrimination
Croatia
Poland
Portugal
Croatia
Portugal
- European Instruments
Estonia
Refusal to negotiate - Estonia
Latvia
- -
Abuse of bargaining power Croatia Latvia Estonia
Slovenia
European Instruments
Unfair breaking off of
negotiation
- - - -
PAGE 408
Pre-contractual practices General schemes General Retail Trade
Schemes/Distribution
Sector-specific schemes:
Food
Sector-specific Schemes:
Other Sectors
Lack of written contract
- Croatia
Estonia
Latvia
European Instruments
Belgium
Slovenia
UK
-
Lack of clarity in contract offer
Global Instruments
Croatia
Portugal
Portugal European/global Instruments
Estonia
-
Other
Poland Estonia European Instruments
Spain
The Netherlands
UK
European Instruments
Spain
The Netherlands
PAGE 409
11.b. DEFINITION OF CONTRACTUAL TERMS AND CONDITIONS IN THE PRIVATE REGULATION
Table 11.b. Definition of contractual terms and conditions in the Private Regulation
Unfair terms General schemes
General Retail
Trade Schemes/
Distribution
Sector-specific schemes:
Food
Sector-specific Schemes:
Other Sectors
Terms imposing surcharges in supplies - - - -
Terms imposing unjustified/excessive costs (e.g.,
listing fees, charges for not requested services)
Croatia Croatia
Estonia
Latvia
European Instruments
UK
-
Terms imposing excessive requirements (e.g.
technical standards, auditing/certification
mechanisms) and related costs
France Croatia
Estonia
UK European Instruments
Terms unreasonably imposing or shifting risks
(e.g., shrinkage fees in case of stolen goods)
Hungary Estonia
Latvia
European Instruments
UK
-
Liability Disclaimers - Estonia UK -
Exclusivity Constraints - Estonia
Italy
The Netherlands -
Non-competition Clauses - - - -
Non transparent or disproportionate contract
penalties
France - European Instruments
UK
-
Unfair Price Terms
Global Instruments
Croatia
France
Estonia
Latvia
European Instruments European Instruments
Unfair Payment Terms Global Instruments
France
Estonia
Latvia
UK France
Unilateral Modification Clauses
France Estonia
Latvia
European Instruments
Belgium
UK
-
Discriminatory terms relative to competitors or
other suppliers
Croatia - European Instruments
Slovenia
Estonia
Italy
Other
Global Instruments
Poland
France
Italy European Instruments
The Netherlands
UK
European Instruments
The Netherlands
PAGE 410
11.C. PRACTICES EMERGING IN THE COURSE OF CONTRACT EXECUTION
Table 11.c. Practices emerging in the course of contract execution
Practices emerging during
contract execution General schemes
General Retail Trade
Schemes/Distribution
Sector-specific schemes:
Food
Sector-specific Schemes:
Other Sectors
Any of the practices
described in the contract
terms listed in the previous
part, though not mentioned
in a specific contract term
- Estonia European Instruments
Belgium
-
Unfair use of confidential
information
Croatia Estonia
Croatia
European Instruments
Slovenia
-
Intra chain discrimination - - - Estonia
Encroachment - - - -
Tortuous interference - Estonia - -
Unfair contract
termination
- France
Italy
European Instruments
UK
European Instruments
France
Abuse of economic
dependence
Croatia Latvia
Croatia
- European Instruments
Italy
Other
Global Instruments Latvia European Instruments
Slovenia
The Netherlands
European Instruments
The Netherlands
PAGE 411
11.d. POST-CONTRACTUAL PRACTICES
Table 11.d. Post-contractual practices
Post-contractual Practices General schemes General Retail Trade
Schemes/Distribution
Sector-specific schemes:
Food
Sector-specific Schemes:
Other Sectors
Unfair use of confidential
information after contract
expiry
- - European Instruments
Slovenia
-
Enforcement of non-
competition duties after
contract expiry
- - Italy
Other Hungary France European Instruments -
PAGE 412
11. SPECIFIC CONDUCTS/PRACTICES ADDRESSED BY PRIVATE REGULATION
e. SUMMARY TABLE
Table 11.e. Summary table
General schemes General Retail Trade
Schemes/Distribution
Sector-specific schemes:
Food
Sector-specific Schemes:
Other Sectors
PRE-CONTRACTUAL PRACTICES
Withholding essential
information 6+Global 2 2+1EU 1
Misleading advertising or
information 8+Global 2 3 2
Aggressive practices 5+Global - 1+EU -
Discrimination 3 2 - 1+1EU
Refusal to negotiate - 2 -
Abuse of bargaining power 1 1 2 1EU
Unfair breaking off of
negotiation - - - -
Lack of written contract - 3 3+EU -
Lack of clarity in contract offer 2+Global 1 1+EU -
Other 1 1 3+EU 2+EU
UNFAIR TERMS
Terms imposing surcharges in
supplies
Terms imposing
unjustified/excessive costs (e.g.,
listing fees, charges for not
requested services)
1 3 1+EU -
Terms imposing excessive
requirements (e.g. technical
standards, auditing/certification
mechanisms) and related costs
1 2 2 1EU
Terms unreasonably imposing or
shifting risks (e.g., shrinkage fees
in case of stolen goods)
1 2 1+EU -
PAGE 413
General schemes General Retail Trade
Schemes/Distribution
Sector-specific schemes:
Food
Sector-specific Schemes:
Other Sectors
Liability Disclaimers - 1 1 -
Exclusivity Constraints - 2 1 -
Non-competition Clauses - - - -
Non transparent or
disproportionate contract
penalties
1 - 1+EU -
Unfair Price Terms 2+Global 2 1 EU 1EU
Unfair Payment Terms 1+Global 2 1 1
Unilateral Modification Clauses 1 2 2+EU -
Discriminatory terms relative to
competitors or other suppliers 1 - 1+EU 2
Other 2+Global 1 2+EU 1+EU
PRACTICES EMERGING DURING
CONTRACT EXECUTION
Any of the practices described in
the contract terms listed in the
previous part, though not
mentioned in a specific contract
term
- 1 1+EU -
Unfair use of confidential
information 1 2 1+EU -
Intra chain discrimination - - - 1
Encroachment - - - -
Tortuous interference - 1 - -
Unfair contract termination - 2 1+EU 1+EU
Abuse of economic dependence 1 2 - 1+EU
Other 1Global 1 2+EU 1+EU
POST-CONTRACTUAL
PRACTICES
Unfair use of confidential
information after contract expiry - - 1+EU -
Enforcement of non-competition
duties after contract expiry - - 1
Other 1 1 1EU -
PAGE 414
12. DOES THE RULE TAKE INTO ACCOUNT THE IMPACT OF UNFAIR TRADING PRACTICES ON THE WHOLE SUPPLY CHAIN WHILE
DEFINING SUCH PRACTICES?
Table 12. Does the rule take into account the impact of unfair trading practices on the whole supply chain while defining such practices?
Countries Private regulation
Yes, by assessing
unfairness based on
effects on the supply
chain
Yes, by taking into
consideration the
interest of participants
to the supply chain as
such
No
European Instruments
European Principles in the Food Supply Chain X X
EU Code of Contractual Clauses and Practices to be
respected in Vehicle Manufacturer/Authorised Dealers
and Repairer in Contractual Relations (CECRA)
X
EU Code of Good Practice regarding certain Aspects
of Vertical Agreements in Motor Vehicle Sector
(ACEA)
X
EU EUCOMED Compliance & Competition Law
Guidelines X
Global Instruments
International Chamber of Commerce Code of
Advertising and Marketing Communication Practice X
Generic Fairtrade Trade Standard X
Austria
Belgium Code of conduct in the agro-food chain X
Bulgaria
Croatia
Code of Business Ethics X
Code of Ethics in Advertising X
Code of Ethics in Direct Sales X
Special Practices in Retail Sale X
Cyprus No Private Regulatory Instruments at domestic level
Czech Republic
Denmark
Estonia
Estonian Bakers’Code of Honour X
Estonian Traders’Association’s Code On Good
Trading Conducts X
Code of Ethics of The Association of Estonian
Information Technology and Telecommunications X
Articles of Association of the Estonian Association of
SME’s X
Finland No Private Regulatory Instruments at domestic level
PAGE 415
Countries Private regulation
Yes, by assessing
unfairness based on
effects on the supply
chain
Yes, by taking into
consideration the
interest of participants
to the supply chain as
such
No
France
Code de bonnes pratiques en matière de relations
commerciales ètablies X
Accord sur le dèfèrencement (Tools and Home
Decoration) X
Code de bonnes pratiques relative à la relation client-
fournisseur dans la soistraitance industrielle au sein de
la filière automobile
X
Charte des relations inter-enterprises + Label
Relations fournisseurs responsables X
Recueil de bonnes pratiques de la federation francaise
de la franchise X
Charte d’èthique de la federation EBEN (distribution
firms for stationery and creative leisures products) X
Germany
Greece
Code of Advertising X
Code of Conduct of the Hellenic Association of
Pharmaceuthical Companies X
Hungary Code of Ethics of the Hungarian Chamber of Commerce and
Industry X
Ireland No Private Regulatory Instruments at domestic level
Italy
Code of Commercial Ethics for the Sale of Furniture
and Dècor X
Code of Ethics in the Field of Chemical Commerce X
Code of Conduct of Assofranchising X
Standard Model Contracts for Sub-supply of
Products/services or Processing X
Model contracts for commercial agency, distribution
and sale for exporters in the field of furniture X
Latvia Code of Good Commercial Practice in Trade X
Lithuania Code of Good Retailers Practice X X
Luxembourg
Malta
Poland Code of Ethics in Advertising X
Portugal Code of Commercial Good Conduct X
PAGE 416
Countries Private regulation
Yes, by assessing
unfairness based on
effects on the supply
chain
Yes, by taking into
consideration the
interest of participants
to the supply chain as
such
No
PARCA N/a
Romania
Slovakia Ethical Principles of Advertising Practice Valid in the
Slovak Republic (Code of Ethics) X
Slovenia
Code of conduct among stakeholders in the food
(grocery) supply chain X
Slovenian Code of Advertising Practice X
Spain
Deontological Code of the Spanish Association of
Enteral Nutrition Products Manufacturers and
Distributors
X
Spanish Good Practices Code on Medicine Promotion
and on Interrelation of Pharmaceutical Industry with
Health Professionals
X
Sweden No Private Regulatory Instruments at domestic level
The Netherlands
Dutch Code of Advertising X
FNLI Code of Conduct (food) X
Code of Conduct Air Cargo Netherlands X
Code of Conduct Dutch Association of Manufacturers
of School Furniture X
United Kingdom Groceries Supply Code of Practice X
Total Instruments 4 5 36
Total Countries 4 5 13 + EU + Global
PAGE 417
I.C. What is the mode of enforcement and the remedies in the private regulation?
PAGE 418
13. ARE THERE REMEDIES AND ENFORCEMENT PROVIDED BY PRIVATE REGULATORY INSTRUMENTS?
Table 13. Are there remedies and enforcement provided by private regulatory instruments?
Countries Private regulation Remedies are provided by private regulatory
instruments
Enforcement is provided by private regulatory
instruments
Yes No Yes No
European
Instruments
European Principles in the Food Supply Chain - X
(at national level, if
provided)
- X
(at national level, if
provided)
EU Code of Contractual Clauses and Practices
to be respected in Vehicle
Manufacturer/Authorised Dealers and Repairer
in Contractual Relations (CECRA)
- X - X (ADR encouraged)
EU Code of Good Practice regarding certain
Aspects of Vertical Agreements in Motor
Vehicle Sector (ACEA)
- X - X
EU EUCOMED Compliance & Competition
Law Guidelines
X - X -
Global Instruments Generic Fairtrade Trade Standard X - X -
Austria
Belgium Code of conduct in the agro-food chain - X X -
Bulgaria
Croatia
Code of Business Ethics X - X -
Code of Ethics in Advertising X - X -
Code of Ethics in Direct Sales X - X -
Special Practices in Retail Sale X - X -
Cyprus No Private Regulatory Instruments at domestic
level
- - - -
Czech Republic
Denmark
Estonia
Estonian Bakers’Code of Honour X - X -
Estonian Traders’Association’s Code On Good
Trading Conducts
X - X -
Code of Ethics of The Association of Estonian
Information Technology and
Telecommunications
X - X -
Articles of Association of the Estonian
Association of SME’s
X - X -
Finland International Chamber of Commerce Code of X - X -
PAGE 419
Countries Private regulation Remedies are provided by private regulatory
instruments
Enforcement is provided by private regulatory
instruments
Yes No Yes No
Advertising and Marketing Communication
Practice
France
Code de bonnes pratiques en matière de
relations commerciales ètablies
(provided by law) Mediation Clause (provided mainly by
law)
Accord sur le dèfèrencement (Tools and Home
Decoration)
(provided by law) Special Mediation and
Arbitration Body
(IPARECO)
(provided mainly by
law)
Code de bonnes pratiques relative à la relation
client-fournisseur dans la soistraitance
industrielle au sein de la filière automobile
- X - X (ADR encouraged)
Charte des relations inter-enterprises + Label
Relations fournisseurs responsables
- X - X
(only monitoring
processes and an
independent body,
Cabinet Vigeo, that
evaluates the firm
applying for the Label)
Recueil de bonnes pratiques de la federation
francaise de la franchise
- X X -
Charte d’èthique de la federation EBEN
(distribution firms for stationery and creative
leisures products)
- X - X
Germany
Greece
Code of Advertising X - X -
Code of Conduct of the Hellenic Association of
Pharmaceutical Companies
X - X -
Hungary Code of Ethics of the Hungarian Chamber of
Commerce and Industry
X - X -
Ireland
Italy
Code of Commercial Ethics for the Sale of
Furniture and Dècor
X - X -
Code of Ethics in the Field of Chemical
Commerce
X - X -
Code of Conduct of Assofranchising X - X -
Standard Model Contracts for Sub-supply of
Products/services or Processing
X - X -
PAGE 420
Countries Private regulation Remedies are provided by private regulatory
instruments
Enforcement is provided by private regulatory
instruments
Yes No Yes No
Model contracts for commercial agency,
distribution and sale for exporters in the field of
furniture
X - X -
Latvia Code of Good Commercial Practice in Trade X - X -
Lithuania Code of Good Retailers Practice X - X -
Luxembourg
Malta
Poland Code of Ethics in Advertising X - X -
Portugal Code of Commercial Good Conduct X - X -
PARCA - X - X
Romania
Slovakia Ethical Principles of Advertising Practice Valid
in the Slovak Republic (Code of Ethics)
- X X -
Slovenia
Code of conduct among stakeholders in the food
(grocery) supply chain
- X X -
Slovenian Code of Advertising Practice - X X -
Spain
Deontological Code of the Spanish Association
of Enteral Nutrition Products Manufacturers
and Distributors
X - X -
Spanish Good Practices Code on medicine
Promotion and on Interrelation of
Pharmaceutical Industry with Health
Professionals
X - X -
Sweden Vertical relationships in the Food Supply
Chain: Principles of Good Practice
- X X
The Netherlands
Dutch Code of Advertising X - X -
FNLI Code of Conduct (food) - X X -
Code of Conduct Air Cargo Netherlands X - X -
Code of Conduct Dutch Association of
Manufacturers of School Furniture X - X -
United Kingdom
Groceries Supply Code of Practice - X (provided by
legislation)
X (provided by
legislation)
Advertising Codes X - X -
Total Instruments 29 16 35 8
Total Instruments
(both crosses in
positive and negative
2 (France)
PAGE 421
Countries Private regulation Remedies are provided by private regulatory
instruments
Enforcement is provided by private regulatory
instruments
Yes No Yes No
answers)
Total Countries 12 + EU+ Global 8 + EU 19 4 + EU
PAGE 422
14. WHAT IS THE MODE OF ENFORCEMENT?
Table 14. What is the mode of enforcement?
Countries Private regulation Enforcement is provided by private regulatory
instruments
Enforcer: Public
Authority
Enforcer: Private
Authority/Dispute
resolution mechanism
(DRM)
Yes No
European
instruments
European Principles in the Food Supply Chain
X
(at national level, if
provided; e.g. in Italy,
provided by
legislation)
Ordinary jurisdictional
methods at national
level, if provided
See in Italy:
enforcement via
Competition Authority,
criminal and civil
courts via reference by
legislation on agri-food
contracts
At national level, if
provided
Mainly: Mediation,
Arbitration, Internal
dispute resolution,
Contract Options,
Commercial Track
EU Code of Contractual Clauses and Practices
to be respected in Vehicle
Manufacturer/Authorised Dealers and Repairer
in Contractual Relations (CECRA)
X (ADR encouraged)
EU Code of Good Practice regarding certain
Aspects of Vertical Agreements in Motor
Vehicle Sector (ACEA)
X
EU EUCOMED Compliance & Competition
Law Guidelines
X Eucomed Compliance
Panel
Global instruments Generic Fairtrade Trade Standard X FLO-CERT auditors
Austria
Belgium Code of conduct in the agro-food chain X Mediation
Bulgaria
Croatia
Code of Business Ethics X Arbitration, Mediation,
Court of Honour
Code of Ethics in Advertising X Arbitration, Court of
Honour
Code of Ethics in Direct Sales X Court of Honour
Special Practices in Retail Sale X Mediation, Court of
PAGE 423
Countries Private regulation Enforcement is provided by private regulatory
instruments
Enforcer: Public
Authority
Enforcer: Private
Authority/Dispute
resolution mechanism
(DRM)
Yes No
Honour
Cyprus No private Regulatory Instruments at domestic
level
Czech Republic
Denmark
Estonia
Estonian Bakers’Code of Honour
X Arbitration, Mediation,
Association’s Dispute
Resolution Committee
Estonian Traders’Association’s Code On Good
Trading Conducts
X Board of Association
Code of Ethics of The Association of Estonian
Information Technology and
Telecommunications
X Arbitration, Mediation,
Ethics Committee
Articles of Association of the Estonian
Association of SME’s
X Arbitration, Mediation,
Board of Association
of SME’s
Finland
International Chamber of Commerce Code of
Advertising and Marketing Communication
Practice
X Board of Business
Practice which is
acting in the Chamber
of Commerce
France
Code de bonnes pratiques en matière de
relations commerciales ètablies
Mediation Clause Provided mainly by
law
Violation of agreement
amounts to a violation
of art. L. 442-6 of
Commercial Code; the
sanctions applicable to
such violation
described in Art. 442-
6, are consequently
applicable
Mediation Clause
Accord sur le dèfèrencement (Tools and Home
Decoration)
Only mediation and
arbitration body
Provided by law Violation of agreement
amounts to a violation
of art. L. 442-6 of
Commercial Code; the
sanctions applicable to
such violation
described in Art. 442-
IPARECO: Mediation
and Arbitration Body
PAGE 424
Countries Private regulation Enforcement is provided by private regulatory
instruments
Enforcer: Public
Authority
Enforcer: Private
Authority/Dispute
resolution mechanism
(DRM)
Yes No
6, are consequently
applicable
Code de bonnes pratiques relative à la relation
client-fournisseur dans la soistraitance
industrielle au sein de la filière automobile
X (ADR encouraged)
Charte des relations inter-enterprises + Label
Relations fournisseurs responsables
X
(only monitoring
processes and an
independent body,
Cabinet Vigeo, that
evaluates the firm
applying for the Label)
Recueil de bonnes pratiques de la federation
francaise de la franchise
X - Specific Mediation
Body
Charte d’èthique de la federation EBEN
(distribution firms for stationery and creative
leisures products)
X
Germany
Greece
Code of Advertising
X Greek Advertising Self
-Regulation Committee
Special Mediation
Code of Conduct of the Hellenic Association of
Pharmaceuthical Companies
X First Degree
Committee and Second
Degree Committee,
Mediation procedure
(amicable procedure)
Hungary Code of Ethics of the Hungarian Chamber of
Commerce and Industry
X ADR provided by
Councils of Chambers
Ireland No Private Regulatory Instruments at domestic level
Italy
Code of Commercial Ethics for the Sale of
Furniture and Dècor
X Committee of wise
People
Code of Ethics in the Field of Chemical
Commerce
X Arbitration, Mediation,
Sbjects indicated in
Statute of AssICC
Code of Conduct of Assofranchising X Assofranchising
Standard Model Contracts for Sub-supply of X Arbitration and
PAGE 425
Countries Private regulation Enforcement is provided by private regulatory
instruments
Enforcer: Public
Authority
Enforcer: Private
Authority/Dispute
resolution mechanism
(DRM)
Yes No
Products/services or Processing Mediation
Model contracts for commercial agency,
distribution and sale for exporters in the field of
furniture
X Curia Mercatorum
Mediation/Arbitration
Latvia Code of Good Commercial Practice in Trade X Special Arbitration
Body
Lithuania Code of Good Retailers Practice X Arbitration
Luxembourg
Malta
Poland Code of Ethics in Advertising X Commission of Ethic
of Commercial
Portugal Code of Commercial Good Conduct X - Monitoring Committee
PARCA X
Romania
Slovakia Ethical Principles of Advertising Practice Valid
in the Slovak Republic (Code of Ethics)
X Arbitration Committee
of The Slovak
Advertising Standards
Council
Slovenia
Code of conduct among stakeholders in the food
(grocery) supply chain
X Mediation
Slovenian Code of Advertising Practice
X Special Tribunal within
Slovenian Advertising
Chamber
Spain
Deontological Code of the Spanish Association
of Enteral Nutrition Products Manufacturers
and Distributors
X Autocontrol Jury
Resolutions
Spanish Good Practices Code on Medicine
Promotion and on Interrelation of
Pharmaceutical Industry with Health
Professionals
X Autocontrol Jury
Resolutions
Sweden
International Chamber of Commerce Code of
Advertising and Marketing Communication
Practice
X Board of Business
Practice which is
acting in the Chamber
of Commerce
The Netherlands Dutch Code of Advertising X Advertising Code
Committee
PAGE 426
Countries Private regulation Enforcement is provided by private regulatory
instruments
Enforcer: Public
Authority
Enforcer: Private
Authority/Dispute
resolution mechanism
(DRM)
Yes No
FNLI Code of Conduct (food) X FNLI Association
Code of Conduct Air Cargo Netherlands X
Air Cargo Netherlands
Compliance Officer,
Air Cargo Board
Code of Conduct Dutch Association of
Manufacturers of School Furniture X
Dutch Association of
Manufacturers of
School Furniture
(NVS)
United Kingdom
Groceries Supply Code of Practice
X
(provided by
legislation)
Groceries Code
Adjudicator
Advertising Codes X Advertising Standard
Authority
Total Instruments 35 8 1 (UK) + 1EU 33
Total Instruments
(both crosses in
positive and negative
answers)
2 (France) 2 (France) 2 (France)
Total Countries 19 4+ EU 2 (France and UK) 17 + EU + Global
PAGE 427
15. REMEDIES PROVIDED BY PRIVATE REGULATORY INSTRUMENTS
Table 15. Remedies provided by private regulatory instruments
Countries Private regulation Injunction
Invalidity
or lack of
legal
effects
Monetary
Penalties Damages
Suspension/cancellation of
membership/affiliation into
a regulatory scheme or
suspension/cancellation of
related certification
Warning Declaratory
Statement
European
instruments
European Principles in the
Food Supply Chain - - - - - - -
EU Code of Contractual
Clauses and Practices to be
respected in Vehicle
Manufacturer/Authorised
Dealersand Repairer in
Contractual Relations
(CECRA)
- - - - - - -
EU Code of Good Practice
regarding certain Aspects of
Vertical Agreements in
Motor Vehicle Sector
(ACEA)
- - - - - - -
EU EUCOMED Compliance
& Competition Law
Guidelines
- - - - X X X
Global
Instruments
Generic Fairtrade Trade
Standard
X
(corrective
measures)
- - - - - -
Austria
Belgium Code of conduct in the agro-
food chain - - - - - - -
Bulgaria
Croatia
Code of Business Ethics X - - - - X X
Code of Ethics in Advertising X - - - - - -
Code of Ethics in Direct
Sales - - - - X - -
Special Practices in Retail
Sale - - - - - X -
PAGE 428
Countries Private regulation Injunction
Invalidity
or lack of
legal
effects
Monetary
Penalties Damages
Suspension/cancellation of
membership/affiliation into
a regulatory scheme or
suspension/cancellation of
related certification
Warning Declaratory
Statement
Cyprus No Private Regulatory
Instruments at domestic level
Czech Republic
Denmark
Estonia
Estonian Bakers’Code of
Honour - - - - X - -
Estonian
Traders’Association’s Code
On Good Trading Conducts
- - - - X - -
Code of Ethics of The
Association of Estonian
Information Technology and
Telecommunications
- - - - X X -
Articles of Association of the
Estonian Association of
SME’s
- - - - X - -
Finland
International Chamber of
Commerce Code of
Advertising and Marketing
Communication Practice
- - - - - - X
France
Code de bonnes pratiques en
matière de relations
commerciales ètablies
X
(for L. 442-
6 Comm.
Code),
though not
likely used
X
(for L.
442-6
Comm.
Code)
X
(for L.
442-6
Comm.
Code,
action by
the Min. o
publ. pros.)
X
(for L. 442-
6 Comm.
Code)
- - -
Accord sur le dèfèrencement
(Tools and Home
Decoration)
X
(for L. 442-
6 Comm.
Code),
though not
likely used
X
(for L.
442-6
Comm.
Code)
X
(for L.442-
6 Comm.
Code,
action by
the Min. o
publ. pros.)
X
(for L. 442-
6 Comm.
Code)
- - -
Code de bonnes pratiques X - - - - - -
PAGE 429
Countries Private regulation Injunction
Invalidity
or lack of
legal
effects
Monetary
Penalties Damages
Suspension/cancellation of
membership/affiliation into
a regulatory scheme or
suspension/cancellation of
related certification
Warning Declaratory
Statement
relative à la relation client-
fournisseur dans la
soistraitance industrielle au
sein de la filière automobile
(for L. 442-
6 Comm.
Code),
though not
likely used
Charte des relations inter-
enterprises + Label
Relations fournisseurs
responsables
- - - - X - -
Recueil de bonnes pratiques
de la federation francaise de
la franchise
- - - - - - -
Charte d’èthique de la
federation EBEN
(distribution firms for
stationery and creative
leisures products)
- - - - - - -
Germany
Greece
Code of Advertising X (stop of
advertising) - - - - - -
Code of Conduct of the
Hellenic Association of
Pharmaceuthical Companies
X (stop of
practices) - X - - - -
Hungary
Code of Ethics of the Hungarian
Chamber of Commerce and
Industry
- - - - - X -
Ireland
Italy
Code of Commercial Ethics
for the Sale of Furniture and
Dècor
- - - - X - -
Code of Ethics in the Field of
Chemical Commerce - - - -
X
(disciplinary sanctions) - -
Code of Conduct of
Assofranchising - - - - X - -
Standard Model Contracts
for Sub-supply of X X - X - - -
PAGE 430
Countries Private regulation Injunction
Invalidity
or lack of
legal
effects
Monetary
Penalties Damages
Suspension/cancellation of
membership/affiliation into
a regulatory scheme or
suspension/cancellation of
related certification
Warning Declaratory
Statement
Products/services or
Processing
Model contracts for
commercial agency,
distribution and sale for
exporters in the field of
furniture
X X - X - - -
Latvia Code of Good Commercial
Practice in Trade
X
(stop of
practices)
- - - - - -
Lithuania Code of Good Retailers
Practice X - - X X - -
Luxembourg
Malta
Poland Code of Ethics in Advertising - - - - - - X
Portugal
Code of Commercial Good
Conduct - - - - - X -
PARCA - - - - - - -
Romania
Slovakia
Ethical Principles of
Advertising Practice Valid in
the Slovak Republic (Code of
Ethics)
- - - - - - -
Slovenia
Code of conduct among
stakeholders in the food
(grocery) supply chain
- - - - - - -
Slovenian Code of
Advertising Practices X
Spain
Deontological Code of the
Spanish Association of
Enteral Nutrition Products
Manufacturers and
Distributors
- - - - - - X
Spanish Good Practices
Code on Medicine
Promotion and on
- - X - - - -
PAGE 431
Countries Private regulation Injunction
Invalidity
or lack of
legal
effects
Monetary
Penalties Damages
Suspension/cancellation of
membership/affiliation into
a regulatory scheme or
suspension/cancellation of
related certification
Warning Declaratory
Statement
Interrelation of
Pharmaceutical Industry
with Health Professionals
Sweden
International Chamber of
Commerce Code of
Advertising and Marketing
Communication Practice
- - - - - - X
The Netherlands
Dutch Code of Advertising X
(correction) - - - - - -
FNLI Code of Conduct
(food) - - - - - - -
Code of Conduct Air Cargo
Netherlands - - - - X - -
Code of Conduct Dutch
Association of
Manufacturers of School
Furniture
- - - - X X -
United Kingdom
Groceries Supply Code of
Practice X - X - - -
X
(make
recommendations)
Advertising Codes X (rulings)
Total Instruments 13 4 4 5 13 7 9
Total Countries 8+Global 2 3 3 6+EU 5+EU 7+EU
PAGE 432
Table 15a. Specification of remedies provided by private regulatory instruments
Countries Private regulation REMEDIES (SPECIFICATION)
European
instruments
European Principles in the
Food Supply Chain no
EU Code of Contractual
Clauses and Practices to be
respected in Vehicle
Manufacturer/Authorised
Dealersand Repairer in
Contractual Relations
(CECRA)
no
EU Code of Good Practice
regarding certain Aspects of
Vertical Agreements in
Motor Vehicle Sector
(ACEA)
no
EU EUCOMED Compliance
& Competition Law
Guidelines
Sanctions are proportionate to the infringement, predictable, act as a deterrent and may include:
- written reprimand;
- requirement that the Respondent, whose activities have been found in breach of the Guidelines, takes steps to conform
with the Eucomed Guidelines;
- inspection and audit by a third party;
- requiring companies to publish or otherwise disseminate corrective or claryfing information or statements;
- withdrawal of the compliance logo or equivalent accreditation or certification scheme of Eucomed or national Member
Association;
- publication of any decisions or sanctions imposed in such publications as the Panel shall determine at their sole
discretion, including publications at Eucomed meetings;
- prohibition against company representatives standing for elected office within the institutions of Eucomed;
- suspension of membership;
- recommendation to the Eucomed Board that the respondent be expelled from Eucomed membership.
Global
Instruments
Generic Fairtrade Trade
Standard Corrective measures, reviews, allegations, complaints handling
Austria
Belgium Code of conduct in the agro-
food chain no
Bulgaria
Croatia Code of Business Ethics
- Warning, private or public: published on the Assembly of the Chamber or in the press and web pages of the Chamber
- injunction
- restitution
- Settlement in mediation; renegotiation/agreement
PAGE 433
Countries Private regulation REMEDIES (SPECIFICATION)
Code of Ethics in Advertising
- injunction
- restitution
- publishing of the judgement against the trader and initiation of other applicable proceedings and disputes
Code of Ethics in Direct
Sales
- Suspension/cancellation of membership/affiliation into a regulatory scheme or suspension/cancellation of related
certification: Court of Honour deletes the company from the membership
Special Practices in Retail
Sale
- Settlement in the Mediation before the First degree procedure before the Court of Honour
- Warning, private or public: published on the Assembly of the Chamber or in the press and web pages of the Chamber
Cyprus No Private Regulatory
Instruments at domestic level no
Czech Republic
Denmark
Estonia
Estonian Bakers’Code of
Honour - Exclusion from the Association
Estonian
Traders’Association’s Code
On Good Trading Conducts
- Renegotiation/agreement
- Exclusion from the Association
Code of Ethics of The
Association of Estonian
Information Technology and
Telecommunications
- Caution
- Reprimand
- Exclusion from the Association
Articles of Association of the
Estonian Association of
SME’s
- Cessation of membership of the Association
Finland
International Chamber of
Commerce Code of
Advertising and Marketing
Communication Practice
- Make a statement
France
Code de bonnes pratiques en
matière de relations
commerciales ètablies
- Injunction (for L- 442-6 Comm. Code)
- Invalidity or lack of legal effects (for L- 442-6 Comm. Code)
- Monetary penalties (for L- 442-6 Comm. Code)
- Damages (for L- 442-6 Comm. Code)
Accord sur le dèfèrencement
(Tools and Home
Decoration)
- Injunction (for L. 442-6 Comm. Code), though not likely used
- Invalidity or lack of legal effects (for L. 442-6 Comm. Code)
- Monetary penalties (for L.442-6 Comm. Code, action by the Min. o publ. pros.)
- Damages (for L. 442-6 Comm. Code)
Code de bonnes pratiques
relative à la relation client-
fournisseur dans la
soistraitance industrielle au
sein de la filière automobile
- Injunction (for L. 442-6 Comm. Code), though not likely used
PAGE 434
Countries Private regulation REMEDIES (SPECIFICATION)
Charte des relations inter-
enterprises + Label
Relations fournisseurs
responsables
- suspension/cancellation of membership
Recueil de bonnes pratiques
de la federation francaise de
la franchise
no
Charte d’èthique de la
federation EBEN
(distribution firms for
stationery and creative
leisures products)
no
Germany
Greece
Code of Advertising - Petitions for the cessation of the advertisement and the abstention from its presentation in future (immediate stop of the
adv)
Code of Conduct of the
Hellenic Association of
Pharmaceuthical Companies
- Petition for the cessation of a practice which infringes the Code (immediate stop of the practice)
Hungary
Code of Ethics of the
Hungarian Chamber of
Commerce and Industry
- Warning by the Chamber
- Starting a procedure at the Competition Authority
- Public decree about the unfair practice
Ireland No private regulatory instruments at national level
Italy
Code of Commercial Ethics
for the Sale of Furniture and
Dècor
- disciplinary sanctions (enforced by a special internal “Committee of wise people”): suspension/cancellation of
membership/affiliation into a regulatory scheme or suspension/cancellation of related certification
Code of Ethics in the Field of
Chemical Commerce - disciplinary sanctions
Code of Conduct of
Assofranchising
- disciplinary sanctions: suspension/cancellation of membership/affiliation into a regulatory scheme or
suspension/cancellation of related certification
Standard Model Contracts
for Sub-supply of
Products/services or
Processing
- Renegotiation/agreement
- Injunction
- Invalidity or lack of legal effects
- Damages
- Restitution
Model contracts for
commercial agency,
distribution and sale for
exporters in the field of
furniture
- Injunction
- Invalidity or lack of legal effects
- Damages
Latvia Code of Good Commercial - Identifying the unfair practice (breach) and ordering to stop it within a given deadline
PAGE 435
Countries Private regulation REMEDIES (SPECIFICATION)
Practice in Trade
Lithuania Code of Good Retailers
Practice
- Injunction
- Damages
- Notice of violation of the Code in the website of the Association
- Elimination of the retailer from the Association
Luxembourg
Malta
Poland Code of Ethic of Commercial - Declatory Statement
Portugal
Code of Commercial Good
Conduct - Warning
PARCA no
Romania
Slovakia
Ethical Principles of
Advertising Practice Valid
in the Slovak Republic (Code
of Ethics)
no
Slovenia
Code of conduct among
stakeholders in the food
(grocery) supply chain
no
Slovenian Code of
Advertising practices - Declatory Statement
Spain
Deontological Code of the
Spanish Association of
Enteral Nutrition Products
Manufacturers and
Distributors
- Declaration of the unfairness
Spanish Good Practices
Code on Medicine
Promotion and on
Interrelation of
Pharmaceutical Industry
with Health Professionals
- Monetary Penalties
Sweden
International Chamber of
Commerce Code of
Advertising and Marketing
Communication Practice
- Declatory Statement
The Netherlands
Dutch Code of Advertising - Injunction (correction)
- Financial compensation for damages
FNLI Code of Conduct
(food) no
PAGE 436
Countries Private regulation REMEDIES (SPECIFICATION)
Code of Conduct Air Cargo
Netherlands - Cancellation or disqualification of membership by the CAN Board
