La dimension systémique des pratiques commerciales déloyales dans les chaînes d’approvisionnement alimentaire : un point de vue sur la directive 2019/633/UE et sa transposition par les États membres

The article argues that unfair commercial practices in supply chains have specific characteristics and therefore require specific rules and remedies. A distinction should be made between isolated unfair commercial practices, whose effects remain essentially within the bilateral contractual relationship, and systemic unfair commercial practices, whose effects spread directly or indirectly along the chain. The latter have much more serious consequences, both in terms of distribution and exclusion. By examining Directive 2019/633/EU on unfair commercial practices (UCP) in agri-food chains and its transposition by some Member States, the authors develop a conceptual framework that could be useful in complementing existing and forthcoming regulation at the European and national levels with rules that reflect the supply chain dimension of UCP. Specifically, the authors suggest that systemic distributional and exclusionary effects should be taken into account in (a) the definition of the prohibited practice, and (b) the choice and content of sanctions and remedies. Although these distinctions have so far rarely been taken into account by Member States in transposition, they could play an important role in courts when responsibilities, sanctions and remedies are to be determined.