Charging by the chain charges other than the margin in the judicial practice of courts
Relationships market – supplier can not be reduced to the conclusion that the market always has an advantage and therefore imposes unfavorable conditions without any negotiations with the supplier. On the mutual position between contracting businesses affected after a number of complex factors, both external (i.e. the existence and strength of competition, the availability of supplying sources supply, consumer purchasing power, legal reglementation) and internal (i.e. human resources and business financial scope).
Each of them, also by the interaction, decides about the position of the entrepreneur to his partner or competitor in different degree. One of the most important factors in terms of the cost of implementation and maintenance of the goods in the sales network, is their reputation. Reputable goods will sell well in different conditions in terms of competitiveness. And for goods not well-known market an access to the market by the chain is invaluable. It has been noticed recently by the Warsaw Court of Appeal, which in a judgment dated October 28, 2011, VI ACa 392/11 stressed precisely that when a provider through the contract with the chain could establish business contacts with other vendors, on the market existed a result of co-operation with a defendant, which discounted positive for themselves effects of the agreement concluded with the defendant for many years, and when he said that he could not longer achieve anymore through this cooperation, he decided to terminate it.
However, most often in the case-law it is emphasized that reality (it is not known how and by whom specific, since consumer research indicates otherwisely) of the modern market are such that it is dominated by supermarkets and hypermarkets, and the importance of small and medium-sized enterprises is falling. Cooperation of small suppliers with chains is an opportunity to remain on the market, which in turn due to the scale of business need constant stocking. Therefore, according to the courts, such assumptions and cooperation circumstances, parties positions are fundamentally different. Court of Appeal in Warsaw, dated August 3, 2006, ACa 269/2006, which stated disproportions between the size of the business parts forced on a demandant contract shaped that was presented by the defendant. There are even opinions that the chains have a dominant position to the suppliers. Moreover also, in reversed situation, ie. the supplier is a powerful entrepreneur as Danone and Coca Cola, courts said that even when evenues from cooperation with the chain are only a small percentage of the total revenues, Article. 15 paragraph. 1 point. 4 ASUC. is applied because: „it is applied regardless the enterpreneuer sells chain all of its production, or only a small part of it, how many other partners they have and what is the scope of their reign on the market. The mere stipulation of such charges is considered to be obstructing access to the market. Judgement of the Court of Appeal in Krakow May 30, 2008, ACa 388/08.
Meanwhile, it is necessary to postulate tightering of evidentiary requirements posed on demandant suppliers. They should therefore prove that the recipient (the chain) hindered their access to the market for charging other than the margin trading fees, that were undueing charges, non-payment for the specific services and that in this way a supplier had limited opportunity to sell their products. In addition, even in the assumption that the charge constitutes an act of unfair competition according to art. 15 paragraph. 1 point 4 ACUC, further evidence of size of the impoverishment of the supplier is required. It is in fact non-equivalent to the nominal amount of the charges.
Joanna Dominowska
Overview of Court, No. 1, 2013
