Shelf Fees as an Act of Unfair Competition

Shelf Fees as an Act of Unfair Competition

Shelf fees represent an abuse of the stronger bargaining position of retail chains in their dealings with suppliers. Charging additional fees for listing or maintaining products in stores—without providing any genuine service in return—is considered an act of unfair competition under Polish law. Such practices are prohibited, and suppliers who suffer losses can pursue claims in court.

What Are Shelf Fees?

The term refers to payments demanded by supermarkets from suppliers in exchange for placing products on store shelves. These may include fees for introducing new items, preferred shelf placement, or product display. As these charges are often unrelated to any actual service, they can significantly burden producers.

Legal Qualification as Unfair Competition

Article 15(1)(4) of the polish  Act on Combating Unfair Competition prohibits hindering market access by collecting fees other than trade margins for accepting goods for sale. A trade margin means the difference between the resale price and the purchase price. If a retailer charges additional amounts not tied to a real, reciprocal service, such conduct may be deemed illegal.
Courts assess each case individually, examining the structure of the relevant market and trade practices.

Hidden Forms of Shelf Fees
Because explicit shelf fees would violate the Act, they are often disguised as:

-marketing or promotional fees,
-merchandising or advertising fees,
or logistics service charges.

These “contractual” terms often mask the same unlawful practice.

Why Shelf Fees Exist
Fierce competition among suppliers for limited shelf space encourages retailers to demand such payments. However, since the retailer becomes the owner of the goods upon purchase, additional fees for stocking or promoting them are unjustified and may constitute disguised shelf fees.

Recovering Unlawfully Charged Fees
A supplier may seek reimbursement based on Article 15(1)(4) of the Act or Articles 405–410 of the Civil Code (unjust enrichment and undue performance). If the retailer received payments without providing any real service, the supplier can demand their return, arguing that the retailer was unjustly enriched. Claims generally expire three years after the supplier learns of the payment.

Legal Remedies
Suppliers may:

File a civil lawsuit demanding repayment of undue payments (Art. 410 Civil Code).
Request a cease and desist order under Art. 18 of the Act on Combating Unfair Competition.
Report the practice to the Office of Competition and Consumer Protection (UOKiK), which can impose fines and order cessation of the practice.
Join other affected suppliers in a class action to strengthen their claims and reduce litigation costs.
Shelf Fees and the Act on Contractual Advantage
The Act of 17 November 2021 on Counteracting the Unfair Use of Contractual Advantage in the agri-food sector also addresses similar practices. It protects weaker suppliers (farmers, producers) from unfair conduct by large buyers. However, it allows certain contractual payments if they are transparently agreed upon—raising concerns about a potential “loophole” for legalizing shelf fees.

Conclusion
Entrepreneurs whose interests are harmed may demand cessation of unlawful practices, compensation, disgorgement of unjust benefits, or publication of a corrective statement.

Despite clear legal prohibitions, shelf fees remain common in retail contracts, with disputes often arising after cooperation ends. Courts, however, increasingly side with suppliers—offering hope for curbing these unfair practices.