Dispute over obstructing market access for collecting fees other than the trade margin for accepting goods for sale

The action of collecting the so-called “slotting fees” is defined in art 15 sec.1 point 4 of the act on combating unfair competition (the Journal of Laws of 2003, item 1503) (“ACUC”), which has been in force in the Polish legal system since 10 November 2002. The aforementioned provision has become a subject of intense discussion in case law and doctrine since it entered into force.

Art. 15 sec. 1 point 4 states that the act of unfair competition is to obstruct access to the market to other entrepreneurs, in particular by charging other fees than the trade margin for accepting goods for sale. The premise of “obstructing market access” raises interpretation doubts since it is not clear from the provision whether the provider is obliged to proved that the charges levied on him make it difficult for him to access the market or if it is a circumstance that can be presumed in such situation.

The Constitutional Court in its judgment of 16 October 2014 (file no SK 20/12) deciding on compatibility of art. 15 sec.1 point 4 ACUC with the Constitution indicated that the position expressed by some state courts, according to which this provision is the basis for presuming obstruction of the market access and transferring the burden of proof to the defendant, is unfounded. The Court emphasised that under Polish law “the premise must be clearly indicated in the presumption norm, whereas the contested provision does not give any linguistic basis for presuming obstruction of the market access or occurrence of the act of unfair competition”.

The Supreme Court in the judgment of 16 January 2015 (file no III CSK 244/14) and then in the judgment of 14 October 2016 (file no I CSK 651/15) presented a completely different view, according to which the collection of fees other than a trade margin is a behaviour which by the will of the legislator, has been treated as an act of unfair competition consisting in obstructing market access, so it is not necessary in this case to further demonstrate that such obstruction has actually occurred.

The State courts accept an interpretation consistent with that of the Supreme Court. The Court of Appeal in Warsaw in the judgment of 13 January 2017 (file no I ACa 2088/15) having regard to the above-mentioned discrepancies in the case law, took advantage of indirect solution and assumed the fact of obstruction of market access on the basis of a factual presumption, i.e. using the procedural institution of art. 231 1 of the Code of Civil Procedure.

Interpretation of art. 15 sec. 1 point 4 ACUC made according to the model accepted by the Supreme Court may help to increase the effectiveness of this regulation, that is supposed to protect the relationship between suppliers and trade networks. At the same time, however, a doubt arises whether the interpretation does not interfere too far with the constitutionally protected freedom of business.

The issue  does not lose its relevance in relation to the adoption of the act on counteracting the unfair use of contractual advantage in the trade in agriculture and food products – the act does not exclude the protection resulting from the provisions on combating unfair competition (see art. 4 of the aforementioned Act).