EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

EU-law backed the regulation of B2B unfair trade practices shall be confronted “internally” within the framework of the EU primary law, i.e., relation of several policies of the EU, purely national rules may be confronted not only to national competition law and EU competition law but other EU law policies as well, e.g., free movement on internal market, in particular. 2.1.1Member States’ legislative laboratory The Members States developed a multitude of approaches to regulation of unfair trade practices by sub-dominant undertakings. Moreover, the legislation has not been stable as well, e.g., in Slovakia the regulation of B2B unfair trade practices several times introduced and repealed with different ratione materiae (Blažo, Kováčiková, & Patakyová, 2019). Or its introduction has not been systematic or consistent worth the rest of the legislative and competition framework, e.g., in Czechia, its introduction was objected even by the Government and the national Competition Authority (Bejček et al. , 2019, p. 91). Position of these rules is different in legal orders, it is a part of private rules, e.g., Hungary (Papp, 2019), mixture of public law and private law rules (e.g., France, Code de commerce, L442-1). In other countries, e.g., Estonia (Pärn-Lee, 2019, pp. 130, 133), specific regulation on B2B unfair trade practices was not developed and they rely on private law enforcement on unfair trade. Without going into further details, map of approaches of the Member States to B2B unfair trade practices is multi-coloured (cf, Daskalova, 2018, pp. 6, 8–9) stemming from individual national legal traditions, cross-border inspiration, as well as the whims of waves of populism aimed against retail networks (Blažo, Kováčiková, & Patakyová, 2019, pp. 248–249). Aim of this paper is not to evaluate these legislative approaches as such but assess them vis-à-vis competition rules. Indeed, they can also cause other impediments to internal market if they are construed discriminatory; the typical case of discrimination can occur when such rules are applicable merely in relation to an undertaking with certain level of turnover or number of employees and none (or almost none) of domestic undertakings fulfil such criteria. Conflicts of national regulation of B2B unfair trade practices with competition law can be twofold. The first conflict can appear vis-à-vis national competition rules. This conflict is stemming from completely different approaches to market regulation – on the one hand, protection of competition that rely mainly on liberal or ordoliberal theories aimed to maintain and protect free (or workable competition) or to maintain consumers’ welfare (Deutscher & Makris, 2016), on the other hand, protection of one party of contractual B2B relations that is deemed to be “weaker”, i.e., protectionist approach based on decision of law maker that can simply lead to overregulation (Bejček, 2019, p. 59). Hence, the

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