Monthly commercial law update: Top 5 developments in January 2016

Sticking to detox diets and resolutions takes time and focus. Therefore, you may not have had time to stay on top of the commercial developments that occurred in January.

Luckily for you, we ditched our resolutions a long time ago and so are able to provide you with a brief summary of what you missed ….

Supply of goods and services: Groceries Code Adjudicator issues report on Tesco investigation

The Groceries Code Adjudicator (GCA) published her report on the investigation into Tesco plc, which was launched following the Tesco announcement on its profit over-statement and the receipt of information from the retailer and the sector.

She has found that Tesco breached the Groceries Supply Code of Practice and Tesco must introduce significant changes to practices and systems.

Her investigation covered the period from 25 June 2013 to 5 February 2015 and found that Tesco often unreasonably delayed payments to suppliers during that time. The report sets out three key issues of concern: Tesco made unilateral deductions from suppliers; the length of time taken to pay money due to suppliers and in some cases an intentional delay in paying suppliers.

The GCA has made five key recommendations and Tesco has four weeks to say how it plans to implement those recommendations.

See our recent blog for further information.

Consumer protection: European Commission issues link to ODR platform

The European Commission has publicised a link to the new online dispute resolution (ODR) platform, which will be operational from 15 February 2016.

Computer notebook keyboard talking about Solution, on blue background.

Under Regulation (EU) 524/2013 (the Regulation) the European Commission will establish a European ODR platform. The ODR platform will be an interactive website, which can be accessed free of charge in all the official languages of the EU (art 5(2) of the Regulation) and is specifically designed to help consumers who have bought goods or services online and subsequently have a problem with that online purchase. It allows consumers to submit their contractual dispute and conduct the alternative dispute resolution procedure online .

See our recent blog for more background.

Intellectual property: European Commission consults on due diligence and supply chain integrity

The European Commission has launched a consultation aiming to explore methods developed by companies to secure their supply chains and protect their intellectual property (IP).

The European Commission intends the consultation feedback to promote best practice, along with EU supply chain integrity schemes including a ‘due diligence toolbox’ for the use of IP-intensive companies.

The European Commission is concerned about the fact that, due to their extreme complexity, globalised supply chains have, over the years, become vulnerable to various forms of disruptions including IP infringements and sub-standard products. It suggests that managing supply chains in a transparent and holistic manner could reduce the risk of infiltration, and that the integration of IP into IP-intensive companies’ supply chain management, and the use of certain monitoring tools and risk assessment procedures, could highly benefit IP protection.

This initiative is part of the Follow the Money strategy, announced in the European Single Market Strategy adopted on 28 October 2015, with the aim of preventing products and services which infringe IP from penetrating the markets.

The European Commission is inviting any company acting as an IP right holder and/or as a supplier to a right holder to complete the survey form on supply chain management practices. SMEs are highly encouraged to participate in the consultation.

The consultation will run for 12 weeks, measured from the publication of the French and German versions of the survey, which will be published shortly.

Advertising and marketing: CAP issues guidance on job advertisements

The Committee on Advertising Practice (CAP) has produced guidance on employment advertising.

The guidance seeks to help organisations attract the right candidates for the roles, while ensuring they comply with their obligations when advertising vacancies, including requirements on earnings, commission and contact details.

The guidance highlights the difference between a salaried position and a business opportunity, as advertisers can often blur the lines betweiStock_000001069848_Mediumen the two. The guidance stresses that, regardless of the type of opportunity being advertised, the role must exist.

Therefore, key CAP advice to employers is to make it explicitly clear in their advertisement whether or not a definite position is being offered. The nature of the role should also be made clear.

To further ensure advertisements do not mislead by omitting material information, they are required by the UK Code on Non-broadcast advertising, sales promotions and direct marketing to contain specific information, including whether: earnings are fixed or in some way variable; the role is commission-based or otherwise performance-dependent or it is for a working-from-home role.

The guidance will be helpful to those advising on employment advertisements.

Public procurement: practical implications of the new European Single Procurement Document

Regulation (EU) 2016/7 established the standard form for the European Single Procurement Document (ESPD) and came into force on 26 January 2016.

Lawyers can act now in preparing both their public and private sector clients for the introduction of the ESPD. Kuldip Dhanoya at Nabarro recommends that both parties to the procurement will need to develop a detailed understanding of all the areas of change, both in terms of a contracting authority drafting the pre-qualification questionnaire and the private sector responding to it.

Contracting authorities will need to review their existing procurement documentation, to ensure that suitable provision is made for the application of the ESPD for procurement exercises initiated after the ESPD comes into force. In particular, they will need to ensure that all the selection questions comply with both EU and UK legislation and do not present any barriers to fair competition.

Similarly, the private sector should familiarise themselves with the documentation as soon as possible. Suppliers should ensure that they fully understand the responses required and the consequences of completing the document inaccurately. Steps will also need to be taken to ensure their standard response document is maintained and continually updated in readiness for responding quickly and efficiently to procurement processes.

That’s it for now. Don’t forget—by entering your name and email address in the box on the right hand side of this page you will receive our handy FREE full monthly round-up PDF, along with other exclusive content courtesy of our Comet newsletter.

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