Unfair Trading Practices in the Business-to-Business Food Supply Chain Between Public and Private Regulation

This paper addresses the phenomenon of Unfair Trading Practices (hereinafter, UTPs) in the business-to-business EU agri-food supply chain, stressing the need of combining both public and private interventions to effectively tackle the issue. These unfair behaviours can be understood only in light of the dynamics that govern the current agri-food supply chain; therefore, the analysis will initially focus on the chain’s structural characteristics. The UTPs’ potential consequences on businesses, consumers, and on the functioning of the internal market will reveal the severity of this issue and the call for a targeted intervention. It will be stressed, in particular, how UTPs negatively affect the agricultural community, putting at risk the stability of the whole sector, thus re-proposing a food security issue. Some possible remedies will be investigated, such as the restoration of a short food supply chain and product differentiation. Nonetheless, the ones capable of tackling more deeply this issue are the public ones, in particular the regulatory intervention on competition law and the one on the content of B2B agreements. The paper will then survey the path that led to the Directive (EU) 2019/633 on UTPs, also considering EU private regulatory actions on the topic, such as the Principles of Good Practice and the Supply Chain Initiative. The investigation will disclose the shortcomings of the Directive, highlighting its complementary role in the current EU legal framework and the potentiality of private interventions in overcoming its deficiencies. Finally, the additional role of transnational private regulation in the fight against UTPs will be explored. In this regard, the analysis will especially consider two private initiatives: the Oxfam’s Supermarket Scorecard and the “NoCap” ethical certification scheme.