Unfair Trading Practices in the Food Chain: Regulating Right?

20 Pages Posted: 9 Nov 2018

See all articles by Hanna Schebesta

Hanna Schebesta

Wageningen University and Research (WUR) - Law and Governance Group

Kai P. Purnhagen

University of Bayreuth; Erasmus University of Rotterdam - Rotterdam Institute of Law and Economics

Bert Keirsbilck

Hogeschool-Universiteit Brussel (HUBrussel); KU Leuven

Tom Verdonk

KU Leuven

Date Written: October 16, 2018

Abstract

On 12 April 2018, the European Commission published a Proposal for a directive on unfair trading practices in business-to-business relationships in the food supply chain, COM(2018) 173 final (‘UTPD’). Currently, the European Parliament and the Council review the proposal. In this paper, we provide an overview of the issue of Unfair trading practices (‘UTPs’) in the supply chain, the content of the original proposal and its proposed amendments and subsequently analyze the different proposed regulations from a legal perspective. We show that, despite the fact that the proposal certainly pursues noble goals, it has important flaws and shortcomings: (1) it is questionable whether Art. 43 TFEU is a valid choice as a legal basis as the scope of the proposal targets the entire food sector. Arguably it can hence not be adequately based exclusively on the Common Agricultural Policy (‘CAP’) instruments legal basis. (2) UTPs rules are complementary to EU competition law, which may send ripples to the overall structure of EU law. The UTPs mentioned cover situations of unequal bargaining power – the focus is on the bilateral power of balance between market participants, as opposed to competition law rules on abuses of dominance that are geared to address practices that have an effect on the overall market. (3) It is unclear why and on which basis the respective practices were chosen and if this static approach allows for sufficient flexibility to also cover other UTPs that might evolve over time. It is, however, likely that the Proposal lays the foundation for a growing area of EU law, which increasingly regulates practices in B2B relationships.

Keywords: Unfair Trading Practices, B2B, Food Chain, European Union, Internal Market

Suggested Citation

Schebesta, Hanna and Purnhagen, Kai Peter and Keirsbilck, Bert and Verdonk, Tom, Unfair Trading Practices in the Food Chain: Regulating Right? (October 16, 2018). Available at SSRN: https://ssrn.com/abstract=3267118 or http://dx.doi.org/10.2139/ssrn.3267118

Hanna Schebesta

Wageningen University and Research (WUR) - Law and Governance Group ( email )

Hollandseweg 1
Wageningen, 6706KN
Netherlands

Kai Peter Purnhagen (Contact Author)

University of Bayreuth ( email )

Universitatsstr 30
Bayreuth, D-95447
Germany

Erasmus University of Rotterdam - Rotterdam Institute of Law and Economics ( email )

Burgemeester Oudlaan 50
PO box 1738
Rotterdam, 3000 DR
Netherlands

Bert Keirsbilck

Hogeschool-Universiteit Brussel (HUBrussel) ( email )

Stormstraat 2
Brussels, 1000
Belgium

KU Leuven

Oude Markt 13
Leuven, Vlaams-Brabant 3000
Belgium

Tom Verdonk

KU Leuven ( email )

Tiensestraat 41
Leuven, B-3000
Belgium

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