EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Contrary to Directive 2005/29/EC, in the sphere of B2B unfair trade practices, there is no comprehensive EU law legal framework. Directive (EU) 2019/633 covers merely relationships in the agricultural and food supply chain. The legislative road to adoption of Directive (EU) 2019/633 was quite long (Piszcz, 2019, pp. 112–113; Schebesta et al. , 2018, pp. 690–691) and manifestly departed from the concepts of competition law (the word “competition” does not occur in the text of the directive). It does not employ flexible concepts of bargaining power, its abuse or unfairness (Piszcz, 2019, p. 125) for the most part aims to address enforcement gaps in already existing legislation such as the late payments directive, the common agriculture policy regulations, the trade secrets directive, national contract law, and national stricter unilateral conduct rules, thus enforcement architecture is seen as the main legal added value of the directive (Daskalova, 2019, p. 296). Does Directive (EU) 2019/633, however, bypass competition law? It deals with vertical business relations and competition law already well-developed and settled legal framework based on Article 101 TFEU and protection against exploitative practices can rely on Article 102 TFEU. There are several overlaps between competition law and B2B in the agriculture and food sector and if related to market power, the scope of the directive can be considered competition regulation. However, it was completely carved out of competition rules and its legal basis lies in common agricultural policy, in particular, in Article 43 (2) TFEU. This legal basis was chosen, even though it covers food not covered by agriculture policy and therefore it can be contentious (Schebesta et al. , 2018, p. 293). On the other hand, it can cover relations that fall completely out of the scope of competition rules under Article 42 TFEU. Summing up, Directive (EU) 2019/633 is a double bypass of competition law, since it applies in the area where derogation from EU competition rules established by the rules on common agricultural policy may apply and at the same time it directly prohibits some behaviour that can be normally handled by competition law. The question is whether EU rules on B2B unfair trade practices are expandable to all sectors. While in agricultural sector, the EU has a specific competence, including stabilising markets, “ensure a fair standard of living for the agricultural community” and kind of price regulation (Article 39 TFEU) it does not have such a protectionist competence in other areas of economy. In such a situation it can have two options – enforcement rules on application of Articles 101 and 102 TFEU or harmonization of national rules creating barriers to internal market under Article 114 TFEU.

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