SPCG has represented the Tesco Poland retail chain in an arbitration dispute before the Court of Arbitration at the Confederation of Lewiatan concerning admissibility of use in trade of the turnover-based bonuses by the retail chains (cash premium). The former supplier sued the Tesco Poland retail chain for reimbursement of agreed by the parties annual and monthly turnover-based bonuses (cash premium) in the amount of almost 8m PLN. The supplier claimed that such type of bonuses (premium) are deprived of any actual equivalent and in fact constitute fees for admission of the supplier’s goods for sale within the meaning of provisions of the Act on suppression of unfair competition (so-called shelf fees). At the same time, their collection obstructs the supplier’s access to the market within the meaning of art. 15 sec. 1 point 4 and art. 3 of the Act on suppression of unfair competition.
On the other hand, the Tesco Poland retail chain claimed that any discounts granted by the supplier, including bonuses (annual premium) which depend on the value of turnover between the parties in a given period, are commonly known in turnover as price-setting factors, determined by the parties during the price negotiations, which constitute component of the trade margin for each party. They reduce the supplier’s margin and at the same time increase the margin of the retail chain as a buyer. The trade margin, according to the express wording of art. 15 sec. 1 point 4 of the Act on suppression of unfair competition does not constitute a fee for admission goods for sale. In addition, obtainment of discounts and bonuses depending on a certain level of turnover in a given settlement period by the recipient of the goods is fully compliant with the market customs established in this regard.
Court of Arbitration at the Confederation of Lewiatan agreed with the view presented by the Tesco Poland that bonus (cash premium) due to achieving a set level of sales, constitutes – in essence – a discount being a component of a trade margin within the meaning of art. 15 sec. 1 point 4 of the Act on suppression of unfair competition. As a consequence, the Court of Arbitration dismissed the supplier’s claim for reimbursement of the turnover-based bonuses (annual premium) granted to the retail chain in the course of cooperation.