Regulation on „shelf fees” in conformity with the Constitution

Having examined the constitutional complaint concerning a ban on hindering  entrepreneurs’ access to the market by charging fees other than a margin for taking goods in for sale (so called “shelf fees”). In the judgment passed on 16 October 2014, the Constitutional Tribunal ruled that article 15  section 1 subsection 4 of the Act on combating unfair competition is in conformity with article 20 in conjunction with article 22 of the Constitution of the Republic of Poland, and so it is not contrary to the principle of a public market economy and the principle of economic freedom.

In the opinion of the Tribunal, the aforementioned regulation is “a solution useful for achievement of the objective set by an employer and corresponds to the needs and structure of the market where mega stores predominate”.

Indeed, the challenged regulation restricts freedom of business activity carried out by an entrepreneur taking goods in for sale, but it is necessary to protect freedom of business activity carried out by an entrepreneur delivering goods for sale because his access to the market or position in the market is strictly dependent on activities of business partners. In addition, article 15 section 1 subsection 4 of the Act is to ensure proper application of the principle of freedom of contracts laid down in article 3531 of the Civil Code.

The Tribunal noted that the regulation does not absolutely prohibit the entrepreneurs who take goods in for sale from charging fees. In particular, it allows contracts to be concluded where one of the parties will undertake to pay a fixed amount of money in exchange for services consisting in advertising or broadly defined transport, storage or display of goods.

In accordance with the established interpretation of article 15 section 1 subsection 4 of the Act not every fee charged by an entrepreneur taking goods in for sale will represent an act of unfair competition. Each time, circumstances of a given case should be examined, and particularly equivalency of the fee charged and mutual performance stipulated in a contract in exchange for the fee charged.

Furthermore, assessing proportionality of the regulation, the Tribunal noted that ascertainment by a court of violation of the challenged regulation does not result in invalidity of a contract but refers to those provisions thereof which stipulate unlawful “fees for taking goods in for sale”.

  • Judgment of the Constitutional Tribunal of 16 October 2014, file reference SK 20/12