Nekalé obchodní praktiky mezi podnikateli a smluvní svoboda
Unfair Commercial Terms among Entrepreneurs and Freedom of Contract

Summary/Abstract: The relationship between an entrepreneur (businessperson) and a consumer (B2C) is usually considered to be asymmetric due to its very substance. It is termed as structure-based power imbalance. Important difference in bargaining power may nevertheless occur in B2B relations, too; it concerns at least small and middle-sized entrepreneurs (SME). The reasons thereof are similar – different economic power of contracting parties, limited rationality, and information asymmetry. Therefore, general customer protection (instead of consumer protection) against unfair trade practices is being considered.European Commission has issued Green Paper „Unfair Trade Practices in the Business-to Business Food and Non-Food Supply Chain in Europe“ in 2013. It concerns B2B relations and aims at covering all supply chains regardless of food supply sector. Several unfair practices are indicated (retroactive misuse of unspecified, ambiguous or incomplete contract terms; excessive and unpredictable transfer of costs or risks to the counterparty; unfair use of confidential information; unfair termination or disruption of a commercial relationship). The article critically comments this attempt to safeguard the fairness and proportionality of commercial terms by means of centrally aimed, EU-wide and across-the sectors intended public law measures. It might endanger the coherence of the existing and well-working selective tools and the private law autonomy of contracting parties. Public law means should be used in protecting competition and consumers. The protection of generally weaker party should be accomplished by private law means.

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