Shelf fee - as an act of unfair competition?


The term "shelf fee" is more familiar mainly in the trading environment, and especially amongst shopkeepers and suppliers who supply them with goods. Who is bringing it in and for what purpose? Is it legal? We answer!

Shelf fee - characteristics

The Shelf Fee is also known as the Store Entry Fee, which clearly defines its nature. Under this name, there is a fee or a large discount that some stores (especially large-format stores) require from suppliers in return for introducing their products for sale. It is rarely referred to as a shelf fee - in contracts and agreements between entrepreneurs it is usually listed as a marketing fee, a fee for marketing services or a fee for promotion and advertising. However, this usually doesn't have much to do with the truth - the salesperson usually does not undertake specific marketing activities.

Importantly, the moment the products are handed over to the store, they become their owner, so the supplier has no direct interest in promoting them in the store, on the contrary - advertising activities in such a situation are undertaken by the store only in its own interest. This type of name is therefore completely unjustified and hides the true nature of the shelf fee.

The provisions of the Act on Combating Unfair Competition indicate what fees the store may charge the supplier. The requirement to pay other amounts for any reason is an obstacle to the entrepreneur's access to the market, i.e. an act of unfair competition. This is especially mentioned in Art. 15:

Art. 15. 1. An act of unfair competition is making it difficult for other entrepreneurs to access the market, in particular by: (...)

4) charging fees other than the commercial margin for accepting goods for sale (...).

Shelf fee as an act of unfair competition

The fact that the shelf fee is an act of unfair competition is also evidenced by the fact that the services provided by the parties are not equivalent - it is difficult to indicate what the supplier pays for, in turn, failure to pay it resulted in withdrawal from the store's contract. As indicated by the Supreme Court in its judgment of November 8, 2013, file ref. SN I CSK 46/13, the fee for accepting the goods for sale, other than the trade margin, constitutes an act of unfair competition defined in Art. 15 sec. 1 point 4 of the Act on and is the source of the unjustified recoverable benefit.

A supplier who, in accordance with the store's requests, has paid the shelf fee, may therefore request a refund under the provisions of the Civil Code:

Article 405. Whoever, without any legal basis, has obtained a material benefit at the expense of another person shall be obliged to deliver the benefit in kind, and if that was not possible, to return its value.

Importantly, the supplier may claim a refund of the amount paid even if the store organizes the promotion of the delivered goods - as already mentioned, such activities do not directly benefit the supplier, so the economic relationship is one-sided. Before a civil court, the supplier may also claim damages if the necessity to pay the shelf fee or other related circumstances resulted in a loss on his part, in accordance with Art. 415 of the Civil Code, saying that whoever caused damage to another person is obliged to repair it.

We should also not forget that the shelf fee is an act of unfair competition - also on this account the seller may suffer consequences. The claims of the entity whose interest has been infringed are indicated in Art. 18 of the Act on Combating Unfair Competition:

Art. 18. 1. In the event of an act of unfair competition, an entrepreneur whose interest has been threatened or infringed upon may request:

1) to refrain from unlawful actions;
2) removing the effects of prohibited activities;
3) submitting a single or multiple declaration with appropriate content and in an appropriate form;
4) repairing the damage caused, on general terms;
5) issuing unjustified benefits, on general terms;
6) adjudication of an appropriate amount of money for a specific social goal related to supporting Polish culture or protection of national heritage - if the act of unfair competition was culpable.

2. The court, at the request of the entitled party, may also adjudicate on products, their packaging, advertising materials and other items directly related to the commission of an act of unfair competition. In particular, the court may order their destruction or include them towards compensation.

As you can see, the supplier's rights are quite broad and provide him with many opportunities to defend his rights, especially since a national or regional organization whose statutory purpose is to protect the interests of entrepreneurs may also file an action for charging the shelf fee.

Claims under the aforementioned title shall expire after 3 years, while any procedural action undertaken to pursue the seller's rights as regards the shelf fee, interrupts the limitation period.