FAILURE TO GIVE A DISCOUNT AN ACT OF UNFAIR COMPETITION?

Every entrepreneur has a pricing policy, including a discount policy, which can be influenced by many factors. In one of the recent cases considered by the Court of Appeals in Poznań (I ACa 1168/16 – judgment with justification of the Court of Appeals in Poznań of 2017-03-27), there was an assessment of whether an entrepreneur who has given a discount to one contractor must also give this discount to another with similar order levels?

BACKGROUND OF THE DISPUTE OVER THE FAILURE TO GIVE A DISCOUNT

The case involves an interesting issue: differentiating the position of contractors. Such a practice may, under the provisions of the Unfair Competition Law, constitute an act of unfair competition in the form of restriction of access to the market. The plaintiff in the case (a seller of baby strollers) alleged that the defendant (a wholesaler) does not give him such discounts as one competitor who placed similar orders. According to the plaintiff, this kind of action by the defendant constitutes an act of unfair competition in the form of restricting the right to the market through materially unjustified differential treatment of certain customers. The court disagreed with this assessment.

CAN A DISCOUNT BE DEMANDED?

According to him, it is not possible to “demand” the granting of a price discount, just because someone else receives it. It is also difficult to see in these circumstances, an act of unfair competition. The issue of the amount of turnover obtained in the normal course of the seller’s activities may or may not be the reason for granting a discount. The decision in this regard is already up to the counterparties, calculating the advisability of granting a discount primarily by the supplier in the context of the overall business conducted at its own risk.