Unfair competition, case III CZP 58/09

October 19th, 2009, Tomasz Rychlicki

The court of first instance held that the basic relationship linking the parties was the agreement of sale of goods defined as to its kind/sort, and therefore, the ownership of the goods sold by the plaintiff to the defendant passed in the moment of their release. Therefore, the fees for marketing services and logistics were taken for actions which the defendant has taken in relation to his goods. The Court also ruled the breach of article 15(1) point 4 of the Polish Act of 16 April 1993 on Combating Unfair Competition – CUC – (in Polish: ustawa o zwalczaniu nieuczciwej konkurencji), Journal of Laws (Dziennik Ustaw) No. 47, item 211, with subsequent amendments.

Article 15
1. An act of unfair competition is the introduction of difficulties for other entrepreneurs to access the market through:
1) the sale of goods or services below their purchase cost in order to eliminate other entrepreneurs,
2) the enticement of third parties to refuse to sell to other entrepreneurs or to purchase goods or services from other entrepreneurs,
3) materially justified differences in the treatment of some customers,
4) collection of charges other than commercial margins for accepting goods for sale,

According to the Court the fees charged to the plaintiff limited its access to the market. If it had not give his consent, the defendant wouldn’t establish a cooperation. The Court did not found any evidence to charge fees for marketing services and for the common commercial policy.

The defendant appealed and the court of second instance having some doubts decided to request the Supreme Court to answer the question whether article 18(1) point 5 of the CUC creates an independent basis to the claim by the buyer for an improperly obtained benefits.

Article 18
1. Where the act of unfair competition is committed, the entrepreneur whose interest is threatened or infringed may request:
1) relinquishment of prohibited practices,
2) removing effects of prohibited practices,
3) making one or repeated statement of appropriate content and form,
4) repairing the damage, pursuant to general rules;
5) handing over unjustified benefits, pursuant to general rules,

The Supreme Court in a resolution of 19 August 2009, case file III CZP 58/09, held that pursuant to article 18(1) point 5 of the CUC, the party may – regardless of other claims arising from the contract – to recover improperly obtained benefits from the collection of non-commercial premium charges for the acceptance of goods for sale.