Guidance for Fair Conduct in Business

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Over the past few years, the BWB has repeatedly received complaints about business practices resulting from the economic imbalance among contracting parties in the supply chain. The design of terms and conditions is one of the main issues raised. However, quite often it is impossible to pin down these practices from an antitrust perspective. Furthermore the companies affected are usually not prepared to disclose more details or to give evidence for various reasons (fear factor). Thus, it is difficult for competition authorities to proceed against such behaviour. The BWB has published this guidance to inform market participants about the legal situation and to prevent breaches of good conduct.

This guidance has also to be seen in the context of various European initiatives on unfair trading practices (e.g. the European Commission’s proposal for a Directive on unfair trading practices in business-to-business relationships in the food supply chain), which mostly focus on the food supply chain. In contrast, the BWB’s Guidance for fair conduct in business is not solely aimed at individual branches of industry or groups of products but should be applied to supplier/buyer relationships across all sectors. It furthermore takes into account that economic imbalance can positively or negatively affect the supplier or the buyer side, depending on sector. It shall provide unambiguous information on how to evaluate corporate behaviour and on what is understood by good conduct. It provides a catalogue of business practices that are deemed to be incompatible with good conduct, irrespective of their legal interpretation by the courts in the individual case. General principles of interpretation shall help in the assessment of individual practices and eventually, this guidance provides an overview of various pieces of legislation including practical examples, which may facilitate the legal classification of individual cases. It concludes with recommendations for companies that are affected by unfair practices.