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Freedom to contract; the freedom of economic activity SK 20/12

The challenged provision of the Act on Counteracting Unlawful Competition is consistent with the Constitution.

At the hearing on 16 October 2014 at 9.00 a.m., the Constitutional Tribunal considered a constitutional complaint submitted by a limited liability company with regard to a prohibition against hindering enterprises’ access to the market by charging fees other than trade margins for admitting goods for sale.

The Constitutional Tribunal adjudicated that the Article 15(1) (4) of the Act of 16 April 1993 on Counteracting Unlawful Competition was consistent with Article 20 in conjunction with Article 22 of the Constitution.

As to the remainder, the Tribunal discontinued the review proceedings.

The Constitutional Tribunal stated that Article 15(1)(4) of the Act on Counteracting Unlawful Competition was a useful solution for the carrying out of the purpose assumed by the legislator as well as it corresponded to the needs and structure of the market in which supermarkets held a dominant position. The aim of that provision is to prevent enterprises from exploiting their market position in relation with other enterprises, which results in hindered access to the market. In civil law transactions, the challenged provision supplements a public-law prohibition against exploiting a dominant market position, which has been introduced by the Act on the Protection of Competition and Consumers. But it does not hinder the carrying out of the set purpose. Research conducted by economists and lawyers indicates both the anti-competition as well as pro-competition character of the prohibition against charging “fees for admitting goods for sale”. The Tribunal considered the fact that an action consisting in correlating the admission of goods for sale with the requirement that the deliverer should make additional payments also constituted an act of unlawful competition in the legal order that was binding before the entry into force of the challenged provision.

The Constitutional Tribunal stated that, by restricting the freedom of economic activity of one entity (i.e. an enterprise that admitted goods for sale), the challenged provision was indispensable for protecting the freedom of the economic activity of another enterprise (i.e. an enterprise that provided goods for sale) whose access to the market or position on the market depended on the actions of enterprises admitting goods for sale. The challenged provision is also indispensable for the proper implementation of the freedom to contract, and thus the protection of the norm derived from Article 3531 of the Civil Code.

The Constitutional Tribunal stated that Article 15(1) (4) of the Act on Counteracting Unlawful Competition did not constitute an excessive restriction of the freedom of economic activity. The provision does not absolutely prohibit charging fees by enterprises that admit goods for sale in relation to agreements signed with other enterprises.

In particular, the challenged provision does not rule out the possibility of entering into agreements where one of the parties will be obliged to provide a given amount of money in exchange for services such as advertising or the broadly understood promotion of goods, or other types of services related to the transportation, storage or display of goods, which is the subject of a sales agreement or another agreement.

Such actions on the part of an enterprise with a strong market position may not be regarded as an act of unlawful competition, unless ‑ in a specific case ‑ it is proven that such fees hinder other enterprises from gaining access to the market, and the charging of those fees was a prerequisite for signing a different agreement by the parties. Not every fee that is charged by an enterprise “admitting goods for sale” constitutes an act of unlawful competition.

Moreover, the challenged provision does not constitute an excessive restriction, for a common court that adjudicates on a case concerning the act of unlawful competition has been equipped by the lawgiver with a power to thoroughly assess and individually consider every instance of charging a fee, depending on actual and legal circumstances surrounding that action. The common court is obliged to assess the equivalence of consideration mentioned in a given agreement in exchange for a fee that is charged as well as to consider all circumstances surrounding that fact, thoroughly analysing the contractual relationship in that context.

When the common court determines that there has been an infringement of the challenged provision, this does not result in the invalidity of a given agreement, but refers to those provisions thereof which include unlawful “fees for admitting goods for sale”. The assessment of proportionality, in a strict sense, of the challenged provision also requires that the content of the provision should be referred to relevant statutory provisions, with a particular focus on procedural provisions. The following have the character of guarantees here: a short period after which limitation applies; special provisions that prevent manifestly unjustified claims from being made; as well as the burden of proof resting on petitioner (Article 6 of the Civil Code).

The hearing was presided over by Judge Małgorzata Pyziak-Szafnicka, and the Judge Rapporteur was Judge Stanisław Rymar.