EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

French legislation is specific in this context since its directly labels its legislation covering B2B unfair trade practices with title “Practices restricting competition” (Code de commerce, Article 442(1)-(8) and reference to specific abuse of market power is enshrined directly in the “spirit” of those provision, e.g., creation of a “significant imbalance” between rights and obligation of the parties. The EU competition law partially acknowledges these forms of regulation of B2B unfair trade practices by Article 3(2) in fine of Regulation 1/2003 that allows “adopting and applying on their territory stricter national laws which prohibits, or sanctions unilateral conduct engaged in by undertakings” (while prosecuting bilateral activities outside of the prohibition by the EU competition law on agreements restricting competition, i.e., allowed by EU law, is contrary to EU law). Thus “anti-competitive” B2B unfair trade practices based on national law can become contrary to EU competition law insofar they are not unilateral. 2.1.2 Unfair B2B practices arising from the EU law Although some Member States extent business-to-consumer (B2C) protection against unfair trade practices (Directive 2005/29/EC), such an extension falls outside the scope of the EU law, as CJ EU noted in C-304/08, Plus Warenhandelsgesellschaft : As is evident from recital 6 in the preamble to [the UCPD], only national legislation relating to unfair commercial practices which harm ‘only’ competitors’ economic interests or which relate to a transaction between traders is thus excluded from that scope. 40. […] that is quite clearly not the case with the national provisions [that] refer expressly to the protection of consumers and not only to that of competitors and other market participants. In the context of Directive 2005/29/EC its legal basis is relevant since it refers to the harmonization provision of Article 114 TFEU as well as high protection of consumers under Article 169 TFEU. Thus, the aim of the directive is both, protect consumers and avoid the segmentation of internal market due to diverse national approaches to consumer protection. On the other hand, even though national B2B unfair trade rules fall outside of the directive, they apparently cannot infringe on internal market rules by creating obstacles. If certain protective measure does not create barrier to internal market in B2C relations, the same rule must apply in relation to B2B practices. In a confrontation with competition law, the tension between consumer protection (even in the broader sense when undertakings are considered “consumers” as well), the tension is not high. Directive 2005/29/EC aims to countervail information and experience asymmetry rather than market power [cf. Article 5(3) Directive 2005/29/EC].

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