Legal alert: New regulations on unfair trade practices between companies

New regulations on unfair trade practices between companies

By Claudia Caravan (Senior associate) and Beatrice Bealcu (Associate)

The Law no. 81/2022 regulates the commercial relationships between suppliers and buyers within the supply chain, regarding the unfair trade practices committed in connection with the sale of agricultural and / or food products.
The new regulation enters into force within 3 (three) days as of the date of publication in the Official Gazette.

1. Unfair trade practices

Among these, the most relevant are:

• • exceeding the payment term established according to the contract with certain periods;
  • establishment of notice periods of less than 30 working days for the cancellation of orders for agricultural and / or food products and 60 days for the delisting of a private label product of a producers for product categories that include the sale of the retailer’s own brand;
  • invoicing and / or re-invoicing and collection from the supplier of costs other than those agreed in the commercial contract – in this sense, the costs related to the extension of the buyer’s distribution network, arrangement of retail outlets and events to promote the activity and image cannot be charged to the supplier;
  • requesting the supplier for payments for damage or loss of agricultural and / or food products, which occurred in the premises of the buyer after receipt, when such damage or loss did not occur due to the negligence or fault of the supplier; exceptions are hidden defects in agricultural and food products for which the supplier will have to bear the cost or replacement;
  • requesting the supplier for compensation for the costs of examining customer complaints regarding the sale of the supplier’s products, in the absence of negligent conduct or fault on the part of the supplier;
  • returning to the supplier of unsold agricultural and / or food products;
  • imposing the supplier a payment for the listing of his agricultural and food products, as well as for their exposure for sale;
  • requesting the supplier for taxes, regardless of their form and name, which obliges the supplier to artificially increase the invoicing price of the product;
  • applying different trade conditions for the private label products of the producers compared to the own brand products of the trader, for listing / displaying on the shelf.

2. Flexible trade practices – prohibited only if they have not been agreed by clear and unambiguous contractual terms, at the request of the supplier.

Among these, the most relevant are:

• • requesting a payment from the supplier for advertising of agricultural and / or food products made by the buyer or for marketing services provided by the buyer regarding agricultural and / or food products;
  • the buyer’s refusal to renegotiate the price within more than 10 days as of the date of the supplier’s request;
  • requesting a payment from the supplier for the staff in charge of arranging the sales premises or forcing the supplier to make staff available for this purpose;
  • imposing taxes for the secondary placement of the supplier’s products for sale;
  • requesting the supplier to bear all or part of the value of any discounts for products sold by the buyer on a promotional basis.

1. 1. 14 calendar days as of the maturity of the payment obligation, in the case of perishable agricultural and food products. Perishable product means an agricultural product or foodstuff which, by its nature or at its processing stage, is likely to become unsuitable for sale within 30 days after harvest, production or processing;
   2. 30 calendar days as of the maturity of the payment obligation for other agricultural and food products.

During the legislative process, this unfair trade practice took several forms, initially the aim was to set the maximum limit of payment terms depending on the category of agricultural and food products. However, this initial approach seems to have been abandoned, with the legislator opting to establish as an unfair trade practice the exceeding of the payment term as set by the contract.

In such a situation, in the absence of any clarifications or additional steps from the legislator, for the establishment in the contract of the payment terms for agricultural and food products, the provisions of Law no. 321/2009 on the sale of agricultural and food products which stipulates that the payment term by the retailer to the supplier for the contracted and delivered products is established by negotiating the contract, except for the payment term for fresh agricultural and food products which may not exceed 14 business days as of the receipt of the products.