Procedure : 2018/0082(COD)
Document stages in plenary
Document selected : A8-0309/2018

Texts tabled :

A8-0309/2018

Debates :

PV 11/03/2019 - 20
CRE 11/03/2019 - 20

Votes :

PV 25/10/2018 - 13.3
CRE 25/10/2018 - 13.3
PV 12/03/2019 - 9.18
CRE 12/03/2019 - 9.18

Texts adopted :

P8_TA(2019)0152

REPORT     ***I
PDF 1470kWORD 245k
10.10.2018
PE 623.672v02-00 A8-0309/2018

on the proposal for a directive of the European Parliament and of the Council on unfair trading practices in business-to-business relationships in the food supply chain

(COM(2018)0173 – C8‑0139/2018 – 2018/0082(COD))

Committee on Agriculture and Rural Development

Rapporteur: Paolo De Castro

Rapporteur for the opinion (*): Marc Tarabella

(*) Associated committee – Rule 54 of the Rules of Procedure

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION
 EXPLANATORY STATEMENT
 OPINION of the Committee on the Internal Market and Consumer Protection
 OPINION of the Committee on Development
 OPINION of the Committee on the Environment, Public Health and Food Safety
 PROCEDURE – COMMITTEE RESPONSIBLE

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION

on the proposal for a directive of the European Parliament and of the Council on unfair trading practices in business-to-business relationships in the food supply chain

(COM(2018)0173 – C8‑0139/2018 – 2018/0082(COD))

(Ordinary legislative procedure: first reading)

The European Parliament,

–  having regard to the Commission proposal to Parliament and the Council (COM(2018)0173),

–  having regard to Article 294(2) and Article 43(2) of the Treaty on the Functioning of the European Union, pursuant to which the Commission submitted the proposal to Parliament (C8‑0139/2018),

–  having regard to Article 294(3) of the Treaty on the Functioning of the European Union,

–  having regard to the reasoned opinion submitted, within the framework of Protocol No 2 on the application of the principles of subsidiarity and proportionality, by the Swedish Parliament, as well as the contribution by the Romanian Senate asserting that the draft legislative act does not comply with the principle of subsidiarity,

–  having regard to the opinion of the European Economic and Social Committee of 19 September 2018(1),

–  having regard to Rule 59 of its Rules of Procedure,

–  having regard to the report of the Committee on Agriculture and Rural Development and the opinions of the Committee on the Internal Market and Consumer Protection, the Committee on Development and the Committee on the Environment, Public Health and Food Safety (A8-0309/2018),

1.  Adopts its position at first reading hereinafter set out;

2.  Calls on the Commission to refer the matter to Parliament again if it replaces, substantially amends or intends to substantially amend its proposal;

3.  Instructs its President to forward its position to the Council, the Commission and the national parliaments.

Amendment    1

Proposal for a directive

Recital 2 a (new)

Text proposed by the Commission

Amendment

 

(2a)  In 2010, the Commission-led High Level Forum for a Better Functioning Food Supply Chain endorsed a set of principles of good practice in vertical relations in the food supply chain agreed by organisations representing a majority of the operators in the food supply chain. Those principles became the basis for the Supply Chain Initiative launched in 2013.

Amendment    2

Proposal for a directive

Recital 2 b (new)

Text proposed by the Commission

Amendment

 

(2b)  In 2011, the OECD adopted the updated Guidelines for Multinational Enterprises on Responsible Business Conduct, which represent the most comprehensive set of recommendations promoted by governments in existence, and cover all major areas of business ethics.

Amendment    3

Proposal for a directive

Recital 3

Text proposed by the Commission

Amendment

(3)  Different operators are active in the food supply chain at the stages of production, processing, marketing, distribution and retail of food products. The chain is by far the most important channel for bringing food products from “farm to fork”. Those operators trade food products, that is to say primary agricultural products, including fishery and aquaculture products, as listed in Annex I to the Treaty for use as food, and other food products not listed in that Annex but processed from agricultural products for use as food.

(3)  Different operators are active in the agricultural and food supply chain at the stages of production, processing, importing, exporting, marketing, distribution, retail and sale to final consumers of agricultural and food products. The chain is by far the most important channel for delivering products. Those operators trade agricultural and food products, that is to say primary agricultural products, including fishery and aquaculture products, as listed in Annex I to the Treaty for use as food, other food products not listed in that Annex but processed from agricultural products for use as agricultural and food products.

 

(The change from "food supply chain" to "agricultural and food supply chain" applies throughout the text. Adopting it will necessitate corresponding changes throughout.)

Amendment    4

Proposal for a directive

Recital 5

Text proposed by the Commission

Amendment

(5)  The number and size of operators vary across the different stages of the food supply chain. Differences in bargaining power relate to the different levels of concentration of operators and can enable the unfair exercise of bargaining power by using unfair trading practices. Unfair trading practices are in particular harmful for small and medium-sized operators in the food supply chain. Agricultural producers, who supply primary agricultural products, are largely small and medium-sized.

(5)  The number and size of operators vary across the different stages of the agricultural and food supply chain. Differences in bargaining power relate to the different levels of concentration of operators and can enable the unfair exercise of bargaining power by using unfair trading practices. Unfair trading practices are even more harmful for small and medium-sized operators in the agricultural and food supply chain, both inside and outside the Union. Agricultural producers, who supply primary agricultural products, are often small and medium-sized, but all suppliers irrespective of size are susceptible to unfair trading practices.

Amendment    5

Proposal for a directive

Recital 5 a (new)

Text proposed by the Commission

Amendment

 

(5a)  Irrespective of the size of the operators, differences in bargaining power are commensurate with the dependence, particularly economic dependence, of the supplier on the buyer.

Amendment    6

Proposal for a directive

Recital 7

Text proposed by the Commission

Amendment

(7)  A minimum Union standard of protection against certain manifestly unfair trading practices should be introduced to reduce the occurrence of such practices and to contribute to ensuring a fair standard of living for agricultural producers. It should benefit all agricultural producers or any natural or legal person that supplies food products, including producer organisations and associations of producer organisations, provided that all those persons meet the definition of micro, small and medium-sized enterprises set out in the Annex to Commission Recommendation 2003/361/EC12 . Those micro, small or medium suppliers are particularly vulnerable to unfair trading practices and least able to weather them without negative effects on their economic viability. As the financial pressure on small and medium-sized enterprises caused by unfair trading practices often passes through the chain and reaches agricultural producers, rules on unfair trading practices should also protect small and medium-sized intermediary suppliers at the stages downstream of primary production. Protection of intermediary suppliers should also avoid unintended consequences (notably in terms of unduly raising prices) of trade diversion away from agricultural producers and their associations, who produce processed products, to non-protected suppliers.

(7)  A minimum Union standard of protection against certain manifestly unfair trading practices should be introduced to reduce the occurrence of such practices and to contribute to ensuring a fair standard of living for agricultural producers. It should benefit all agricultural producers or any natural or legal person that supplies agricultural and food products, including producer organisations, associations of producer organisations and cooperatives. The financial pressure caused by unfair trading practices often passes through the chain and reaches agricultural producers and therefore rules on unfair trading practices should also protect intermediary suppliers at the stages downstream of primary production. Protection of intermediary suppliers should also avoid unintended consequences (notably in terms of unduly raising prices) of trade diversion away from agricultural producers and their associations, who produce processed products.

_________________

 

12 OJ L 124, 20.5.2003, p. 36.

 

Amendment    7

Proposal for a directive

Recital 7 a (new)

Text proposed by the Commission

Amendment

 

(7a)  As the place of establishment of a buyer in not always the same place where the agricultural and food products are delivered and marketed, the relevant rules should apply to all buyers, independently of their place of establishment, when the products they buy are intended for the Union agricultural and food supply chain. To strengthen the implementation and enforcement of this Directive by operators established outside the Union, the Commission should include specific clauses in the Union's bilateral trade agreements with third countries.

Justification

The amendment aims at including within the scope of the Directive those operators that, though established outside the EU, buy and sell products in the EU market, and avoiding that a buyer can escape the provisions by simply moving its place of establishment outside the EU.

The aim of this amendment is to include within the scope of application of this Directive those buyers which, though established outside the EU, buy and sell products in the EU market. To strengthen the implementation and enforcement of the provisions of this Directive, the Commission is called upon to include specific clauses in the EU's bilateral trade agreements with third countries.

Amendment    8

Proposal for a directive

Recital 7 b (new)

Text proposed by the Commission

Amendment

 

(7b)  Services ancillary to the sale of agricultural and food products should be included in the scope of this Directive. Services such as transport, disinfection or invoicing should not be considered as ancillary to the sale of agricultural and food products and thus should not fall within the scope of this Directive.

Amendment    9

Proposal for a directive

Recital 8

Text proposed by the Commission

Amendment

(8)  Suppliers established outside the Union should be able to rely on the Union minimum standard when they sell food products to buyers established in the Union to avoid unintended distorting effects resulting from the protection of suppliers in the Union.

(8)  Suppliers established outside the Union should be able to rely on the Union minimum standard when they sell agricultural and food products to buyers to avoid unintended distorting effects resulting from the protection of suppliers in the Union.

Justification

The diminishing share of revenues reaching small scale food producers and workers in developing countries and the working conditions they face as a consequence of unfair trading practices undermine the Union’s development policy and its objectives under the 2030 Agenda for Sustainable Development.

Amendment    10

Proposal for a directive

Recital 8 a (new)

Text proposed by the Commission

Amendment

 

(8a)  The imbalance of power in the supply chain and unfair trading practices of supermarkets come at a high price, as this generates and amplifies significant negative social and environmental impacts in most countries producing agricultural products and poor countries, including the denial of basic human rights, gender discrimination, a failure to earn living wages, and long working hours.

Amendment    11

Proposal for a directive

Recital 9

Text proposed by the Commission

Amendment

(9)  The relevant rules should apply to business conduct by larger, that is to say non-small and medium-sized, operators in the food supply chain as they are the ones who normally possess stronger relative bargaining power when trading with small and medium-sized suppliers.

(9)  The relevant rules should apply to all business operators in the agriculural and food supply chain.

Amendment    12

Proposal for a directive

Recital 10

Text proposed by the Commission

Amendment

(10)  As a majority of Member States already have national rules on unfair trading practices, albeit diverging, it is appropriate to use the tool of a Directive to introduce a minimum protection standard under Union law. This should enable Member States to integrate the relevant rules into their national legal order in such a way as to bring about a cohesive regime. Member States should not be precluded from adopting and applying on their territory stricter national laws protecting small and medium-sized suppliers and buyers against unfair trading practices occurring in business-to-business relationships in the food supply chain, subject to the limits of Union law applicable to the functioning of the internal market.

(10)  As a majority of Member States already have national rules on unfair trading practices, albeit diverging, it is appropriate to use the tool of a Directive to introduce a minimum protection standard under Union law. This should enable Member States to integrate the relevant rules into their national legal order in such a way as to bring about a cohesive regime. Member States should not be precluded from adopting and applying on their territory stricter national laws protecting all suppliers and buyers regardless of their size against unfair trading practices occurring in business-to-business relationships in the agricultural and food supply chain, subject to the limits of Union law applicable to the functioning of the internal market.

Amendment    13

Proposal for a directive

Recital 11

Text proposed by the Commission

Amendment

(11)  As unfair trading practices may occur at any stage of the sale of a food product, i.e. before, during or after a sales transaction, Member States should ensure that the provisions of this Directive should apply to such practices whenever they occur.

(11)  As unfair trading practices may occur at any stage of the sale of an agricultural or food product, i.e. before, during or after a sales transaction, or in connection with the provision of services which are ancillary to the sale of that product by the buyer or a group of buyers to the supplier, Member States should ensure that the provisions of this Directive should apply to such practices whenever they occur.

Amendment    14

Proposal for a directive

Recital 12

Text proposed by the Commission

Amendment

(12)  When deciding whether an individual trading practice is considered unfair it is important to reduce the risk of limiting the use of fair and efficiency-creating agreements agreed between parties. As a result, it is appropriate to distinguish practices that are foreseen in clear and unambiguous terms in supply agreements between parties from practices that occur after the transaction has started without being agreed in advance in clear and unambiguous terms, so that only unilateral and retrospective changes to those relevant terms of the supply agreement are prohibited. However, certain trading practices are considered as unfair by their very nature and should not be subject to the parties’ contractual freedom to deviate from them.

(12)  When deciding whether an individual trading practice is considered unfair it is important to reduce the risk of limiting the use of fair and efficiency-creating agreements agreed between parties. As a result, it is appropriate to distinguish practices that do not result from the exploitation of an economic dependence of the supplier on the buyer and are foreseen in clear and unambiguous terms in supply agreements between parties, from practices that occur after the transaction has started without being agreed in advance in clear and unambiguous terms, so that only unilateral changes to those relevant terms of the supply agreement are prohibited. However, certain trading practices are considered as unfair by their very nature and should not be subject to the parties’ contractual freedom to deviate from them.

Amendment    15

Proposal for a directive

Recital 12 a (new)

Text proposed by the Commission

Amendment

 

(12a)  Where a complaint is submitted to an enforcement authority, the burden of proof that the supply agreement covers the trading practice in question in clear and unambiguous terms should be on the buyer.

Amendment    16

Proposal for a directive

Recital 12 b (new)

Text proposed by the Commission

Amendment

 

(12b)  A payment by a buyer to a supplier beyond a reasonable time limit, which should be set in this Directive, should be considered as an unfair trading practice and be prohibited. That prohibition should be without prejudice to the rules on payment terms laid down in the statute of a producer organisation or of an association of producer organisations, including cooperatives, if that statute contains rules enabling members to scrutinise democratically their organisation and its decisions, or to agreements, decisions and concerted practices within recognised inter-branch organisations, the aim of which is to modify the terms of payment relating to agricultural and food products falling within the scope of a Union quality scheme.

Amendment    17

Proposal for a directive

Recital 12 c (new)

Text proposed by the Commission

Amendment

 

(12c)  The use of written contracts in the agricultural and food supply chain reinforces the responsibility of operators and helps to avoid certain unfair commercial practices, and increases the awareness of the need to better take into account the signals of the market, to improve price transmission and to adapt supply to demand. In order to incentivise the use of such contracts suppliers, or their associations, should have the right to request a written contract. The refusal by a buyer to enter into a written contract with a supplier despite the supplier having requested such a contract in accordance with this Directive, when terms have been agreed between them, should be considered as an unfair trading practice and be prohibited.

Amendment    18

Proposal for a directive

Recital 12 d (new)

Text proposed by the Commission

Amendment

 

(12d)  Nutrition labelling schemes unilaterally imposed by buyers on suppliers, which do not provide the consumers with comprehensive information, might discriminate between producers and mislead consumers in their choice of products. It should be possible for the imposition of such schemes to be considered as falling under the definition of an unfair trading practice.

Amendment    19

Proposal for a directive

Recital 13

Text proposed by the Commission

Amendment

(13)  In order to ensure an effective enforcement of the prohibitions laid down in this Directive, Member States should designate an authority that is entrusted with their enforcement. The authority should be able to act either on its own initiative or by way of complaints by parties affected by unfair trading practices in the food supply chain. Where a complainant requests that his identity remain confidential because of fear of retaliation, the enforcement authorities of the Member States should honour such a request.

(13)  In order to ensure an effective enforcement of the prohibitions laid down in this Directive, Member States should designate an authority that is entrusted with their enforcement. The authority should be able to act either on its own initiative or by way of complaints by parties affected by unfair trading practices in the agricultural and food supply chain. Whenever a complaint is lodged, the enforcement authority of the Member State concerned must, due to the fear of retaliation, guarantee, in accordance with national law, that the complainant’s identity remains anonymous.

Amendment    20

Proposal for a directive

Recital 13 a (new)

Text proposed by the Commission

Amendment

 

(13a)  In order to ensure an effective enforcement of the prohibition of unfair trading practices, the designated enforcement authorities should have all necessary resources, staff and expertise at their disposal.

Amendment    21

Proposal for a directive

Recital 14

Text proposed by the Commission

Amendment

(14)  Complaints by producer organisations or associations of such organisations can serve to protect the identity of individual members of the organisation who are small and medium-sized suppliers and consider themselves exposed to unfair trading practices. Enforcement authorities of the Member States should therefore be able to accept and act upon complaints by such entities while protecting the procedural rights of the defendant.

(14)  Complaints by producer or supplier organisations or associations of such organisations, including representative organisations with knowledge of trading practices in the agricultural and food supply chain, can serve to protect the identity of individual members of the organisation who consider themselves exposed to unfair trading practices. Enforcement authorities of the Member States should therefore be able to accept and act upon complaints by such entities while protecting the procedural rights of the defendant.

Amendment    22

Proposal for a directive

Recital 14 a (new)

Text proposed by the Commission

Amendment

 

(14a)  Special attention should be paid to the protection of the identity of complainants and other victims of practices if the authority pursues the obligation to publish its decisions in accordance with this Directive.

Amendment    23

Proposal for a directive

Recital 15

Text proposed by the Commission

Amendment

(15)  The enforcement authorities of the Member States should have the necessary powers that enable them to effectively gather any factual information by way of information requests. They should have the power to order the termination of a prohibited practice, where applicable. The existence of a deterrent, such as the power to impose fines and the publication of investigation results, can encourage behavioural change and pre-litigation solutions between the parties and should therefore be part of the powers of the enforcement authorities. The Commission and the enforcement authorities of the Member States should cooperate closely so as to ensure a common approach with respect to the application of the rules set out in this Directive. In particular, the enforcement authorities should provide each other mutual assistance, for example by sharing information and assisting in investigations which have a cross-border dimension.

(15)  The enforcement authorities of the Member States should have the necessary powers that enable them to effectively gather any factual information by way of information requests. They should be impartial bodies with no conflicts of interest with operators in the agricultural and food supply chain and have an in-depth knowledge of the functioning of the agricultural and food supply chain. They should guarantee the fair and proper functioning of the agricultural and food supply chain and should have the power to require the buyer to promptly terminate a prohibited practice, where applicable. The existence of a deterrent, such as the power to impose fines and other equally effective sanctions and the publication of investigation results, can encourage behavioural change and pre-litigation solutions between the parties and should therefore be part of the powers of the enforcement authorities. Repeated infringements should be taken into account when determining the sanction to be applied. The Commission and the enforcement authorities of the Member States should cooperate closely so as to ensure a common approach with respect to the application of the rules set out in this Directive, particularly with regard to fines and sanctions. In particular, the enforcement authorities should provide each other mutual assistance, for example by sharing all relevant information and assisting in investigations which have a cross-border dimension.

Amendment    24

Proposal for a directive

Recital 15 a (new)

Text proposed by the Commission

Amendment

 

(15a)  An enforcement authority should inform the complainant, within a reasonable time limit, about its decision to act or not to act on the complaint. A decision to reject the complaint should be subject to judicial review. Where an enforcement authority considers that there are sufficient grounds for acting on a complaint, it should conduct an investigation, which should be concluded within a reasonable time limit. Where an infringement of this Directive is established, the enforcement authority should require the buyer to promptly terminate the prohibited trading practice and impose a pecuniary fine and other equally effective sanctions, in accordance with national legislation. The fine and the other sanctions should be effective, proportionate to the harm caused and dissuasive taking into account the nature, duration and gravity of the infringement. Repeated infringements by the same buyer should be taken into account when determining the pecuniary fine and/or the other sanctions to be applied. The enforcement authority should be able to abstain from taking any measure, if such decision would risk revealing the identity of a complainant or disclosing any other information in respect of which the complainant considers disclosure harmful to his interests, provided that the complainant has identified that information. The enforcement authority should be able to publish its decisions regarding the sanctions imposed.

Amendment    25

Proposal for a directive

Recital 15 b (new)

Text proposed by the Commission

Amendment

(15b)  Member States should promote, without prejudice to the powers and obligations of their enforcement authorities, the use of effective and independent mediation procedures or an alternative dispute resolution mechanism in case of a dispute between a supplier and a buyer due to an unfair trading practice as defined in this Directive. The use of mediation or of an alternative dispute resolution mechanism should be without prejudice to the right of a supplier to submit a complaint. The Commission should be able to facilitate dialogue and exchange of proven practices concerning the use of mediation or of an alternative dispute resolution mechanism at Union level.

Amendment    26

Proposal for a directive

Recital 15 c (new)

Text proposed by the Commission

Amendment

 

(15c)  It is necessary to establish a Union Enforcement Network (‘the Network’), hosted by the Commission, aimed at coordinating and facilitating the exchange of information and best practices concerning Member States’ national legislation and experience of enforcement in a coordinated and systematic way so as to ensure a common approach with respect to the application of the rules set out in this Directive. The Network should also help improving the common understanding on which specific types of business practice should be considered unfair trading practices and to better address potential cross-border unfair trading practices.

Amendment    27

Proposal for a directive

Recital 16

Text proposed by the Commission

Amendment

(16)  To facilitate effective enforcement, the Commission should help organise meetings between the enforcement authorities of the Member States where best practices can be exchanged and relevant information can be shared. The Commission should establish and manage a website to facilitate those exchanges.

(16)  To facilitate effective enforcement, the Commission should help organising the meetings of the Network where best practices can be exchanged and relevant information can be shared. The Commission should establish and manage a website to facilitate those exchanges.

Amendment    28

Proposal for a directive

Recital 17

Text proposed by the Commission

Amendment

(17)  The rules laid down in this Directive should not impair the possibility for the Member States to maintain existing rules that are further-reaching or to adopt such rules in the future, subject to the limits of Union law applicable to the functioning of the internal market. The rules would apply alongside voluntary governance measures.

(17)  The rules laid down in this Directive should not impair the possibility for the Member States to maintain existing rules that are stricter with regard to the unfair trading practices identified in this Directive or to additional ones, or to adopt such rules in the future, subject to the limits of Union law applicable to the functioning of the internal market, in particular the principles of the free movement of goods and services, freedom of establishment, non-discrimination and access to an impartial and independent judicial review. The rules should be subject to a pre-notification procedure and would apply alongside voluntary governance measures.

Amendment    29

Proposal for a directive

Recital 19

Text proposed by the Commission

Amendment

(19)  In the interest of an effective implementation of the policy in respect of unfair trading practices in business-to-business relationships in the food supply chain, the Commission should review the application of this Directive and submit a report to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions. The review should also pay particular attention to whether protection of small and medium-sized buyers of food products in the supply chain – in addition to the protection of small and medium sized suppliers – in the future would be justified,

(19)  In the interest of an effective implementation of the policy in respect of unfair trading practices in business-to-business relationships in the food supply chain, the Commission should review the application of this Directive and submit a report to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions.

Amendment    30

Proposal for a directive

Article 1 – paragraph 1

Text proposed by the Commission

Amendment

1.  This Directive establishes a minimum list of prohibited unfair trading practices between buyers and suppliers in the food supply chain and lays down minimum rules concerning their enforcement and arrangements for the coordination between enforcement authorities.

1.  This Directive establishes a minimum list of prohibited unfair trading practices between buyers and suppliers in the agricultural and food supply chain and lays down minimum rules concerning their enforcement and arrangements for the coordination between enforcement authorities.

 

(The change from “food supply chain” to “agricultural and food supply chain” applies throughout the whole directive)

Justification

The amendment aims at protecting any farmer, extending the scope to all the products included in Annex I to the Treaty, as UTPs can also affect those producers that sell unprocessed agricultural products not intended for human consumption (e.g. cut flowers, feed and others).

Amendment    31

Proposal for a directive

Article 1 – paragraph 2

Text proposed by the Commission

Amendment

2.  This Directive applies to certain unfair trading practices which occur in relation to the sales of food products by a supplier that is a small and medium-sized enterprise to a buyer that is not a small and medium-sized enterprise.

2.  This Directive applies to certain unfair trading practices which occur in relation to the sales of agricultural and food products by a supplier to a buyer, as well as to the related services provided by a buyer to a supplier, which are ancillary to the sale of agricultural and food products.

Amendment    32

Proposal for a directive

Article 2 – paragraph 1 – point -a (new)

Text proposed by the Commission

Amendment

 

(-a)  “unfair trading practice” means any practice that:

 

- grossly deviates from good commercial conduct, is contrary to good faith and fair dealing and is unilaterally imposed by one trading partner on another;

 

- imposes or attempts to impose an unjustified and disproportionate transfer of a buyer’s economic risk to the supplier; or

 

- imposes or attempts to impose a significant imbalance of rights and obligations on the supplier in the commercial relationship before, during or after the contract;

Amendment    33

Proposal for a directive

Article 2 – paragraph 1 – point a

Text proposed by the Commission

Amendment

(a)  “buyer” means any natural or legal person established in the Union who buys food products by way of trade. The term "buyer" may include a group of such natural and legal persons;

(a)  “buyer” means any natural or legal person, irrespective of that person’s place of establishment, who buys agricultural and food products to be delivered within the Union for commercial purposes and/or offers services ancillary to the sale of those products. The term "buyer" may include a group of such natural and legal persons;

Amendment    34

Proposal for a directive

Article 2 – paragraph 1 – point b

Text proposed by the Commission

Amendment

(b)  “supplier” means any agricultural producer or any natural or legal person, irrespective of their place of establishment, who sells food products. The term “supplier” may include a group of such agricultural producers or such natural and legal persons, including producer organisations and associations of producer organisations;

(b)  “supplier” means any agricultural producer or any natural or legal person, irrespective of their place of establishment, who sells agricultural and food products. The term “supplier” may include a group of such agricultural producers or such natural and legal persons, including producer organisations and associations of producer organisations and cooperatives;

Amendment    35

Proposal for a directive

Article 2 – paragraph 1 – point b a (new)

Text proposed by the Commission

Amendment

 

(ba)  “economic dependence” means a relationship between a supplier and a buyer with different strength of bargaining power, in which the supplier is dependent on the buyer because of the buyer's reputation, its market share, the absence of sufficient alternative sales possibilities or because the total sum for which the supplier invoiced the buyer accounts for a significant amount of the supplier’s turnover;

Amendment    36

Proposal for a directive

Article 2 – paragraph 1 – point b b (new)

Text proposed by the Commission

Amendment

 

(bb)  “supply agreement” means an agreement between a supplier and a buyer that clearly and transparently covers the relevant elements of the commercial agreement, including the names of the parties, their rights and obligations, price, duration, terms of delivery, terms of payment, as well as the cause, the execution of the contract and the effect of terminating the contract;

Amendment    37

Proposal for a directive

Article 2 – paragraph 1 – point c

Text proposed by the Commission

Amendment

(c)  “small and medium-sized enterprise” means an enterprise within the meaning of the definition of micro, small and medium-sized enterprises set out in the Annex to Commission Recommendation 2003/361/EC14 ;

deleted

_________________

 

14 Commission Recommendation 2003/361/EC of 6 May 2003 concerning the definition of micro, small and medium-sized enterprises (OJ L 124, 20.5/2003, p. 36).

 

Justification

Since a previous amendment is deleting small and medium-sized enterprises from the text, their definition becomes obsolete.

Amendment    38

Proposal for a directive

Article 2 – paragraph 1 – point d

Text proposed by the Commission

Amendment

(d)  “food products” means products listed in Annex I to the Treaty intended for use as food as well as products not listed in that Annex, but processed from those products for use as food;

(d)  “agricultural and food products” means products listed in Annex I to the Treaty as well as products not listed in that Annex, but processed from those products for use as food;

 

(The change applies throughout the text. Adopting it will necessitate corresponding changes throughout.)

Amendment    39

Proposal for a directive

Article 2 – paragraph 1 – point d a (new)

Text proposed by the Commission

Amendment

 

(da)  "private label food products" means food products that are sold under retailers' brands;

Amendment    40

Proposal for a directive

Article 2 – paragraph 1 – point e

Text proposed by the Commission

Amendment

(e)  “perishable food products” means food products that will become unfit for human consumption unless they are stored, treated, packaged or otherwise conserved to prevent them from becoming unfit.

(e)  “perishable agricultural and food products” means agricultural and food products which are naturally suitable for commercialisation and proper use for a period of up to thirty days or that rapidly decay due to their natural characteristics, in particular in the absence of appropriate storage conditions;

Justification

The aim of this amendment is to provide clarification

Amendment    41

Proposal for a directive

Article 2 – paragraph 1 – point e a (new)

Text proposed by the Commission

Amendment

 

(ea)  “non-perishable products” means products other than those referred to in point (e).

Amendment    42

Proposal for a directive

Article 3 – paragraph 1 – introductory part

Text proposed by the Commission

Amendment

1.  Member States shall ensure that the following trading practices are prohibited:

1.  Member States shall ensure that at least the following unfair trading practices are prohibited:

Amendment    43

Proposal for a directive

Article 3 – paragraph 1 – point a

Text proposed by the Commission

Amendment

(a)  a buyer pays a supplier for perishable food products later than 30 calendar days after the receipt of the supplier’s invoice or later than 30 calendar days after the date of delivery of the perishable food products, whichever is the later. This prohibition shall be without prejudice:

(a)  a buyer pays a supplier later than:

 

-  30 calendar days starting from the last day of the month of receipt of the supplier’s invoice for perishable agricultural and food products, or later than 30 calendar days after the date of the contractually agreed delivery of the perishable agricultural and food products; or

 

-  60 calendar days starting from the last day of the month of receipt of the supplier’s invoice for non-perishable agricultural and food products, or later than 60 calendar days after the date of the contractually agreed delivery of the non-perishable agricultural and food products.

 

Member States shall ensure that, in sales transactions and for services provided where the buyer is a public authority, those practices are equally prohibited.

 

Those prohibitions shall be without prejudice to:

- to the consequences of late payments and remedies as laid down in Directive 2011/7/EU;

-  the consequences of late payments and remedies as laid down in Directive 2011/7/EU;

 

-  the rules on payment terms laid down in the statute of a producer organisation or of an association of producer organisations, including cooperatives, of which an agricultural producer is a member or supplier, if that statute contains rules enabling members to scrutinise democratically their organisation and its decisions;

- to the option of a buyer and a supplier to agree on a value sharing clause within the meaning of Article 172 a) of Regulation (EU) No 1308/2013 of the European Parliament and of the Council15.

-  the option of a buyer and a supplier to agree on a value sharing clause within the meaning of Article 172a of Regulation (EU) No 1308/2013 of the European Parliament and of the Council15;

 

-  agreements, decisions and concerted practices of interbranch organisations recognised under Article 157 of Regulation (EU) No 1308/2013, the aim of which is to modify the terms of payment for transactions relating to agricultural and food products falling under a quality scheme established in accordance with Regulation (EC) No 110/2008 of the European Parliament and of the Council, Regulation (EU) No 1151/2012 of the European Parliament and of the Council, Regulation (EU) No 1308/2013 and Regulation (EU) No 251/2014 of the European Parliament and of the Council.

____________

_______________

15 Regulation (EU) No 1308/2013 of the European Parliament and of the Council of 17 December 2013 establishing a common organisation of the markets in agricultural products and repealing Council Regulations (EEC) No 922/72, (EEC) No 234/79, (EC) No 1037/2001 and (EC) No 1234/2007 (OJ L 347, 20.12.2013, p. 671).

15 Regulation (EU) No 1308/2013 of the European Parliament and of the Council of 17 December 2013 establishing a common organisation of the markets in agricultural products and repealing Council Regulations (EEC) No 922/72, (EEC) No 234/79, (EC) No 1037/2001 and (EC) No 1234/2007 (OJ L 347, 20.12.2013, p. 671).

Amendment    44

Proposal for a directive

Article 3 – paragraph 1 – point b

Text proposed by the Commission

Amendment

(b)  a buyer cancels orders of perishable food products at such short notice that a supplier cannot reasonably be expected to find an alternative to commercialise or use these products;

(b)  a buyer unilaterally cancels orders of perishable agricultural and food products without agreeing full compensation with the supplier, with notice of less than 60 days from the contractually agreed date for delivery of the products;

Justification

The amendment aims at better defining the notion of “short notice” (when a buyer cancels orders of perishable food products) with a fixed time-limit of 60 days.

Amendment    45

Proposal for a directive

Article 3 – paragraph 1 – point c

Text proposed by the Commission

Amendment

(c)  a buyer unilaterally and retroactively changes the terms of the supply agreement concerning the frequency, timing or volume of the supply or delivery, the quality standards or the prices of the food products;

(c)  a buyer unilaterally imposes changes to the terms of the supply agreement concerning the frequency, manner, timing or volume of the supply or delivery, the quality standards, the terms of payment or the prices of the agricultural and food products or the services ancillary to the sale of those products;

Amendment    46

Proposal for a directive

Article 3 – paragraph 1 – point c a (new)

Text proposed by the Commission

Amendment

 

(ca)  a buyer unilaterally terminates the supply agreement;

Amendment    47

Proposal for a directive

Article 3 – paragraph 1 – point c b (new)

Text proposed by the Commission

Amendment

 

(cb)  a buyer unilaterally terminates supply agreements in response to falling prices.

Amendment    48

Proposal for a directive

Article 3 – paragraph 1 – point c c (new)

Text proposed by the Commission

Amendment

 

(cc)  a buyer obtains or attempts to obtain from a supplier some kind of benefit without providing any compensation or service in return, or if the benefit is clearly disproportionate to the value of the compensation or service provided;

Justification

The aim of this amendment is to list, as an unfair trade practice, the acquisition (or attempts to acquire) some kind of benefit when no compensation or service is provided in return, or when the benefit is clearly disproportionate to the value of the compensation or service provided.

Amendment    49

Proposal for a directive

Article 3 – paragraph 1 – point c d (new)

Text proposed by the Commission

Amendment

 

(cd)  a buyer demands subsequently payments without any services in return;

Amendment    50

Proposal for a directive

Article 3 – paragraph 1 – point c e (new)

Text proposed by the Commission

Amendment

 

(ce)  a buyer forces a supplier - or attempts to force a supplier - to give that buyer special conditions under the threat of partial or total destocking of the supplier's agricultural products or foodstuffs;

Justification

The aim of this amendment is to list, as an unfair trading practice, the practice of forcing a supplier - or attempting to force a supplier - to offer special conditions under the threat of partial or total destocking of the supplier's agricultural products or foodstuffs.

Amendment    51

Proposal for a directive

Article 3 – paragraph 1 – point c f (new)

Text proposed by the Commission

Amendment

 

(cf)  a buyer imposes or attempts to impose onto the supplier a significant imbalance of rights and obligations in the commercial relationship before, during or after the contract;

Amendment    52

Proposal for a directive

Article 3 – paragraph 1 – point c g (new)

Text proposed by the Commission

Amendment

 

(cg)  a buyer imposes or attempts to impose an unjustified or disproportionate transfer of the buyer's economic risks onto the supplier;

Amendment    53

Proposal for a directive

Article 3 – paragraph 1 – point c h (new)

Text proposed by the Commission

Amendment

 

(ch)  a buyer transfers unilaterally the sales risk onto the supplier;

Amendment    54

Proposal for a directive

Article 3 – paragraph 1 – point c i (new)

Text proposed by the Commission

Amendment

 

(ci)  a buyer imposes discount schemes and listing fees;

Amendment    55

Proposal for a directive

Article 3 – paragraph 1 – point c j (new)

Text proposed by the Commission

Amendment

 

(cj)  a buyer uses reverse electronic auctions, or two-stage auctions, to drive down prices. Those are not regulated and are such as to fail to ensure the transparency of negotiations, pricing and bidders in the purchasing of agricultural and food products of EU-certified quality and origin as well as non-certified products;

Amendment    56

Proposal for a directive

Article 3 – paragraph 1 – point c l (new)

Text proposed by the Commission

Amendment

 

(cl)  mergers are applied to form retail and wholesale purchasing groups;

Amendment    57

Proposal for a directive

Article 3 – paragraph 1 – point d

Text proposed by the Commission

Amendment

(d)  a supplier pays for the wastage of food products that occurs on the buyer's premises and that is not caused by the negligence or fault of the supplier.

(d)  a buyer requires the supplier to pay for the wastage of agricultural and food products delivered on time and in the contractually agreed quality that occurs when those products are in the buyer's ownership and that is not caused by the negligence or fault of the supplier.

Amendment    58

Proposal for a directive

Article 3 – paragraph 1 – point d a (new)

Text proposed by the Commission

Amendment

 

(da)  when terms have been agreed between a buyer and a supplier, the buyer refuses to enter into a written contract with that supplier despite the supplier having requested such a contract in accordance with Article 3a, or the buyer refuses to provide the supplier with sufficiently detailed and unambiguous information on the supply agreement as defined in point (bb) of Article 2.

Amendment    59

Proposal for a directive

Article 3 – paragraph 1 – point d b (new)

Text proposed by the Commission

Amendment

 

(db)  a buyer shares with third parties or misuses, intentionally or otherwise, confidential information relating to the supply agreement, including sensitive trade information shared by the supplier with the buyer;

Amendment    60

Proposal for a directive

Article 3 – paragraph 1 – point d c (new)

Text proposed by the Commission

Amendment

 

(dc)  a buyer carries out communication or promotional activities or implements commercial policies which - including on account of their duration - damage, or are liable to damage, the image of products bearing a geographical indication pursuant to Regulation (EU) No 1151/2012, Regulation (EC) No 110/2008 or Regulation (EU) No 251/2014;

Justification

Products bearing specific geographical indications are often subject to a wide range of promotional practices (such as below-cost selling, descending-price auctions or excessively long-lasting promotions), which tarnish the image of those products in economic or commercial terms. This measure would enable suppliers to take action not only against counterfeiting but also to combat these detrimental and unfair commercial practices.

Amendment    61

Proposal for a directive

Article 3 – paragraph 1 – point d d (new)

Text proposed by the Commission

Amendment

 

(dd)  a buyer retaliates or threatens to retaliate commercially against the supplier, by means of practices such as delisting of products, stopping data sharing services, excessive promotions, delayed payments, unilateral deductions and/or blocking of promotions, in order to obtain better conditions under existing contracts or when negotiating a new contract;

Amendment    62

Proposal for a directive

Article 3 – paragraph 1 – point d e (new)

Text proposed by the Commission

Amendment

 

(de)  The buyer threatens or carries out commercial retaliation against the supplier when the supplier exercises its contractual and legal rights, including filing a complaint and cooperating with national enforcement authorities.

Amendment    63

Proposal for a directive

Article 3 – paragraph 1 – point d f (new)

Text proposed by the Commission

Amendment

 

(df)  a buyer refuses to take commercial measures if a supplier avails itself of its contractual rights, including the submission of a complaint and cooperating with the national enforcement authorities, or threatens the supplier with corresponding measures;

Amendment    64

Proposal for a directive

Article 3 – paragraph 1 – point d g (new)

Text proposed by the Commission

Amendment

 

(dg)  A buyer unilaterally imposes quality standards that are not based on current legislation, quality schemes, science or current practices, which may have a distorting effect on trade;

Amendment    65

Proposal for a directive

Article 3 – paragraph 1 – point dh (new)

Text proposed by the Commission

Amendment

 

(dh)  a buyer lays down provisions regarding environmental protection and animal welfare standards which are more stringent than the relevant legal provisions in force;

Amendment    66

Proposal for a directive

Article 3 – paragraph 1 – point d i (new)

Text proposed by the Commission

Amendment

 

(di)  a buyer uses overly strict ‘minimum life on receipt criteria’ in order to reject a previously agreed order, or to reject an order that, for reasons unrelated to the supplier, has not been processed quickly enough;

Amendment    67

Proposal for a directive

Article 3 – paragraph 1 – point d j (new)

Text proposed by the Commission

Amendment

 

(dj)  a buyer proceeds to a unilateral debit which relates to or constitutes a retroactive, albeit non-contractual, change in conditions laid down in supply contracts, as well as to the deduction of amounts, without the prior consent of the other party, on the invoicing values due for the supply of goods or services;

Amendment    68

Proposal for a directive

Article 3 – paragraph 1 – point d k (new)

Text proposed by the Commission

Amendment

 

(dk)  a buyer makes the conclusion of a supply agreement dependent on payment of an annual fee and applies this retroactively;

Amendment    69

Proposal for a directive

Article 3 – paragraph 1 – point d l (new)

Text proposed by the Commission

Amendment

 

(dl)  a buyer makes business cooperation and the conclusion of a supply agreement conditional upon compensation in goods and services;

Amendment    70

Proposal for a directive

Article 3 – paragraph 1 – point d m (new)

Text proposed by the Commission

Amendment

 

(dm)  a buyer charges a fee for the inclusion of the supplier's agricultural or food products;

Amendment    71

Proposal for a directive

Article 3 – paragraph 1 – point d n (new)

Text proposed by the Commission

Amendment

 

(dn)  a buyer charges a fee for storage and handling after delivery of the agricultural or food product;

Amendment    72

Proposal for a directive

Article 3 – paragraph 1 – point d o (new)

Text proposed by the Commission

Amendment

 

(do)  a buyer charges a fee for services not provided, or for services rendered although not contractually provided for between the contracting parties;

Amendment    73

Proposal for a directive

Article 3 – paragraph 1 – point d p (new)

Text proposed by the Commission

Amendment

 

(dp)  a buyer charges a fee for reduced turnover, sales or supplier's margin due to lower sales of a particular agricultural or food product;

Amendment    74

Proposal for a directive

Article 3 – paragraph 1 – point d q (new)

Text proposed by the Commission

Amendment

 

(dq)  a buyer makes the conclusion of a supply agreement and business cooperation conditional upon imposing the obligation to participate in discounts or sales by reducing the purchase price at the expense of the supplier;

Amendment    75

Proposal for a directive

Article 3 – paragraph 1 – point d r (new)

Text proposed by the Commission

Amendment

 

(dr)  a buyer charges a fee for conclusion of a supply agreement with the supplier which is disproportionate to the administrative costs the supplier must bear;

Amendment    76

Proposal for a directive

Article 3 – paragraph 1 – point d s (new)

Text proposed by the Commission

Amendment

 

(ds)  a buyer reduces, in a non-transparent manner, the quantity and/or value of agricultural or food products of a standard quality;

Amendment    77

Proposal for a directive

Article 3 – paragraph 1 – point d t (new)

Text proposed by the Commission

Amendment

 

(dt)  a buyer refuses to give the supplier a description of any differentiated treatment of the supplier as compared with own brands.

 

That description may include at the least every instance of different treatment in the sense of specific measures or procedures in connection with:

 

(a) access to personal or other data gathered in connection with the purchase of agricultural or food products;

 

(b) listing, displaying, classifying or other factors affecting consumer purchase decisions;

 

(c) direct or indirect remuneration for using services provided by the buyer;

 

(d) access to or the conditions for the use of services directly related to the supply agreement;

Amendment    78

Proposal for a directive

Article 3 – paragraph 1 – point d u (new)

Text proposed by the Commission

Amendment

 

(du)  a buyer imposing disproportionately high contractual sanctions in comparison to the value and significance of the subject of the obligation;

Amendment    79

Proposal for a directive

Article 3 – paragraph 1 – point d v (new)

Text proposed by the Commission

Amendment

 

(dv)  a buyer demands a full, partial or prior transfer of the direct payments of the supplier to which the latter is entitled under Regulation (EU) No 1307/2013.

Justification

This amendment is intended to prohibit transfers of direct payments. This is in line with the Commission’s intervention in the cases of Harms, C-434/08, and Arts, C-227/16. There the Commission states that a transfer of payment entitlements circumvents the true objective of agricultural subsidies.

Amendment    80

Proposal for a directive

Article 3 – paragraph 1 – point d w (new)

Text proposed by the Commission

Amendment

 

(dw)  a supplier is de-listed without reasonable notice, written explanation of the decision and without genuine commercial reasons;

Amendment    81

Proposal for a directive

Article 3 – paragraph 1 – point d x (new)

Text proposed by the Commission

Amendment

 

(dx)  a buyer obliges the supplier to pay staff for fitting-out the premises for the sale or manipulation of the agricultural and food products;

Amendment    82

Proposal for a directive

Article 3 – paragraph 1 – point d y (new)

Text proposed by the Commission

Amendment

 

(dy)  a buyer requests compensation from the supplier for the cost of examining customer complaints related to its products;

Amendment    83

Proposal for a directive

Article 3 – paragraph 1 – point d z (new)

Text proposed by the Commission

Amendment

 

(dz)  a buyer requires suppliers to bear any costs incurred as a result of any forecasting error, unless:

 

-the buyer has prepared those forecasts in good faith and with due care, and following consultation with the supplier;

 

-the supply agreement includes an express and unambiguous provision that full compensation is not appropriate;

Amendment    84

Proposal for a directive

Article 3 – paragraph 1 – point d a a (new)

Text proposed by the Commission

Amendment

 

(daa)  a buyer, by means of a supply agreement, obliges the supplier not to sell agricultural or food products to other buyers and/or processors at lower prices than those paid by the buyer and/or processor;

Amendment    85

Proposal for a directive

Article 3 – paragraph 1 – point d a b (new)

Text proposed by the Commission

Amendment

 

(dab)  a buyer threatens directly or indirectly to cancel a supplier's products from listing, if the supplier does not comply or want to comply with a buyer's demands for price reduction;

Amendment    86

Proposal for a directive

Article 3 – paragraph 1 – point d a c (new)

Text proposed by the Commission

Amendment

 

(dac)  a buyer compels a supplier to manufacture the same product to be sold under the retailer's own brand at the same or a lower cost than the supplier's branded product;

Amendment    87

Proposal for a directive

Article 3 – paragraph 1 – point d a d (new)

Text proposed by the Commission

Amendment

 

(dad)  a buyer returns unsold food products to a supplier at the supplier's cost and without payment for those unsold food products.

Amendment    88

Proposal for a directive

Article 3 – paragraph 2 – introductory part

Text proposed by the Commission

Amendment

2.  Member States shall ensure that the following trading practices are prohibited, if they are not agreed in clear and unambiguous terms at the conclusion of the supply agreement:

2.  Member States shall ensure that the following trading practices are prohibited, if they are not agreed in clear and unambiguous terms at the conclusion of the supply agreement or in any subsequent agreement between the buyer and the supplier during the validity of the supply agreement, or if they are the result of an abuse of the supplier’s economic dependence on the buyer, which enabled the buyer to impose those terms:

Amendment    89

Proposal for a directive

Article 3 – paragraph 2 – point a

Text proposed by the Commission

Amendment

(a)  a buyer returns unsold food products to a supplier;

deleted

Justification

Transferred to 3(1)

Amendment    90

Proposal for a directive

Article 3 – paragraph 2 – point a a (new)

Text proposed by the Commission

Amendment

 

(aa)  the buyer removes products from the list of contracted products that the supplier delivers to the customer or significantly reduces an order of a particular agricultural or food product without prior written notice provided within the time period specified in the contract, or within a time limit which may not be shorter than 30 days in cases where the deadline is not stipulated in the contract;

Amendment    91

Proposal for a directive

Article 3 – paragraph 2 – point c

Text proposed by the Commission

Amendment

(c)  a supplier pays for the promotion of food products sold by the buyer. Prior to a promotion and if that promotion is initiated by the buyer, the buyer shall specify the period of the promotion and the expected quantity of the food products to be ordered;

(c)  a supplier pays for the promotion or advertising of food products sold by the buyer. Prior to a promotion and if that promotion is initiated by the buyer, the buyer shall specify the period of the promotion and the expected quantity of the food products to be ordered;

Amendment    92

Proposal for a directive

Article 3 – paragraph 2 – point d a (new)

Text proposed by the Commission

Amendment

 

(da)   a buyer sells agricultural and food products below the purchase price as per invoice, less the proportional part of the discounts included in the invoice, plus the transport costs and the taxes charged on the transaction, as a marketing mechanism and the loss or cost is ultimately borne by the supplier;

Amendment    93

Proposal for a directive

Article 3 – paragraph 2 – point d b (new)

Text proposed by the Commission

Amendment

 

(db)  a buyer passes the costs incurred in transporting and storing the products on to the supplier;

Amendment    94

Proposal for a directive

Article 3 – paragraph 2 – point d c (new)

Text proposed by the Commission

Amendment

 

(dc)  a buyer obliges the supplier to deliver the products only to the supplier's platforms.

Amendment    95

Proposal for a directive

Article 3 – paragraph 2 a (new)

Text proposed by the Commission

Amendment

 

2a.  Member States shall ensure that the trading practices referred to in points (b), (c) and (d) of paragraph 2 are prohibited if the ensuing payments from the supplier to the buyer are not related to the costs incurred by the buyer.

Amendment    96

Proposal for a directive

Article 3 – paragraph 2 b (new)

Text proposed by the Commission

Amendment

 

2b.  Where a complaint relating to a practice referred to in paragraph 2 is submitted to an enforcement authority, the burden of proof that the supply agreement covers the trading practice in question in clear and unambiguous terms shall be on the buyer.

Amendment    97

Proposal for a directive

Article 3 – paragraph 2 c(new)

Text proposed by the Commission

Amendment

 

2c.  Member States may prohibit any additional unfair trading practice, as defined in point (-a) of Article 2, beyond those referred to in paragraphs 1 and 2 of this Article.

Justification

The amendment clarifies the possibility for Member States to have a more ambitious approach with regard to the number of UTPs they intend to prohibit.

Amendment    98

Proposal for a directive

Article 3 – paragraph 3

Text proposed by the Commission

Amendment

3.  If a payment is requested by the buyer for the situations described in points (b), (c) and (d) of paragraph 2, the buyer shall, if requested by the supplier, provide the supplier with an estimate of the payments per unit or overall, whichever is appropriate, and insofar as the situations described in points (b) and (d) of paragraph 2 are concerned also an estimate of the costs and the basis for such estimate.

3.  If a payment is requested by the buyer for the situations described in points (b), (c) and (d) of paragraph 2, the buyer shall provide the supplier with an estimate of the payments per unit or overall, whichever is appropriate, and insofar as the situations described in points (b) and (d) of paragraph 2 are concerned also an estimate of the costs and the basis for such estimate. Those estimates shall be provided in written form by the buyer and agreed by the supplier before the provision of the service concerned.

Justification

The amendment aims at providing suppliers with an increased certainty and transparency regarding the services they pay for.

Amendment    99

Proposal for a directive

Article 3 – paragraph 4

Text proposed by the Commission

Amendment

4.  Member States shall ensure that the prohibitions laid down in paragraphs 1 and 2 constitute overriding mandatory provisions which are applicable to any situation falling within their scope, irrespective of the law otherwise applicable to the supply agreement between the parties.

4.  Member States shall ensure that the prohibitions laid down in paragraphs 1 and 2 constitute overriding mandatory provisions which are applicable to any situation falling within their scope, irrespective of the law otherwise applicable to the supply agreement between the parties. Member States may adopt rules going beyond the prohibitions laid down for each unfair trading practice referred to in paragraphs 1 and 2.

Justification

The amendment clarifies the possibility for Member States to have a more ambitious approach with regard to prohibitions listed in Art. 3.

Amendment    100

Proposal for a directive

Article 3 – paragraph 4 a (new)

Text proposed by the Commission

Amendment

 

4a.  Member States shall ensure that contractual terms or practices that exclude interest for late payment are prohibited in accordance with Article 7 of Directive 2011/7/EU.

Amendment    101

Proposal for a directive

Article 3 a (new)

Text proposed by the Commission

Amendment

 

Article 3a

 

Contractual relations

 

1.  A supplier may require that any delivery of its agricultural and food products to a buyer be the subject of a written contract between the parties and/or the subject of a written offer for a contract from the first purchaser.

 

2.   Any contract or offer for a contract referred to in paragraph 1 shall:

 

(a)be made in advance of the delivery;

 

(b)  be made in writing; and

 

(c)  include, in particular, the following elements:

 

(i)   the price payable for the delivery, which shall:

 

— be static and be set out in the contract, and/or

 

— be calculated by combining various factors set out in the contract, which may include market indicators reflecting changes in market conditions, the quantities delivered and the quality or composition of the agricultural products delivered;

 

(ii)   the quantity and quality of the products concerned which may or must be delivered and the timing of such deliveries;

 

(iii)   the duration of the contract, which may include either a definite duration or an indefinite duration with termination clauses;

 

(iv)   details regarding payment periods and procedures;

 

(v)   arrangements for collecting or delivering the agricultural products, and

 

(vi)   rules applicable in the event of force majeure.

 

3.   Paragraphs 1 and 2 shall be without prejudice to Articles 125, 148 and 168 of Regulation (EU) No 1308/2013.

 

4.   Member States may identify, share and promote best practices concerning long-term contractualisation, aimed at strengthening the bargaining position of producers within the agricultural and food supply chain.

Amendment    102

Proposal for a directive

Article 4 – paragraph 1

Text proposed by the Commission

Amendment

Each Member State shall designate a public authority to enforce the prohibitions laid down in Article 3 at national level ("enforcement authority").

1.  Each Member State shall designate one or more authorities to enforce the prohibitions laid down in Article 3 at national level ("enforcement authority"), and inform the Commission of the designation.

Amendment    103

Proposal for a directive

Article 4 – paragraph 1 a (new)

Text proposed by the Commission

Amendment

 

1a.  If a Member State designates more than one enforcement authority on its territory, it shall designate one single contact point for cooperation among enforcement authorities and for cooperation with the Commission.

Amendment    104

Proposal for a directive

Article 4 a (new)

Text proposed by the Commission

Amendment

 

Article 4a

 

Competent enforcement authority

 

1.   The enforcement authority of the Member State in which a buyer suspected to have engaged in a prohibited trading practice is established, shall be competent to investigate unfair trading practices committed by the buyer.

 

2.   If a supplier delivers its products to a recipient related to the buyer but established in a Member State which does not correspond to the place of establishment of the buyer suspected to have engaged in a prohibited trading practice, the enforcement authority of that Member State shall be competent to investigate unfair trading practices committed by the buyer. The recipient of the products shall be considered as jointly liable for infringements committed.

 

3.   Where the buyer is established outside the Union, the enforcement authority of the Member State where the supplier is established shall be competent to investigate unfair trading practices committed against the supplier.

 

4.   The enforcement authority shall also be competent to investigate unfair trading practices as regards the provision of services related to the supply agreement. The buyer shall be considered as jointly liable for any infringements committed by a third-party provider of the related services.

Amendment    105

Proposal for a directive

Article 5 – paragraph 1

Text proposed by the Commission

Amendment

1.  A supplier shall address a complaint to the enforcement authority of the Member State in which the buyer suspected to have engaged in a prohibited trading practice is established.

1.  Complaints shall be addressed to the enforcement authority of the Member State in which the buyer suspected to have engaged in a prohibited trading practice is established. Where the buyer is established outside the Union, the complaint shall be addressed to the enforcement authority of the Member State in which the supplier is located. That enforcement authority shall take action.

Amendment    106

Proposal for a directive

Article 5 – paragraph 1 a (new)

Text proposed by the Commission

Amendment

 

1a.  A supplier may submit a complaint to the enforcement authority of the Member State in which the supplier is established. The enforcement authority of that Member State shall forward the complaint to the enforcement authority of the Member State in which the buyer suspected to have engaged in a prohibited trading practice is established. That enforcement authority shall take action.

Amendment    107

Proposal for a directive

Article 5 – paragraph 2

Text proposed by the Commission

Amendment

2.  Producer organisations or associations of producer organisations whose member(s) or member(s) of their members consider(s) that they are affected by a prohibited trading practice shall have the right to submit a complaint.

2.  Organisations of producers or of suppliers or associations of organisations of producers or of suppliers, organisations working with producers with knowledge of trading practices in the agricultural and food supply chain, and representative organisations, whose member(s) or member(s) of their members consider(s) that they are affected by a prohibited trading practice shall have the right to submit a complaint and to be properly involved in the proceedings.

Amendment    108

Proposal for a directive

Article 5 – paragraph 3

Text proposed by the Commission

Amendment

3.  The enforcement authority shall ensure, if so requested by the complainant, the confidentiality of the identity of the complainant and any other information, in respect of which the complainant considers disclosure harmful to his interests. The complainant shall identify such information in a possible request for confidentiality.

3.  The enforcement authority shall ensurethe confidentiality of the identity of the complainant and any other information, in respect of which the complainant considers disclosure harmful to his interests. The complainant shall identify such information in a possible request for confidentiality. Throughout the procedure, the enforcement authority shall ensure the confidentiality of the process and of any sensitive information, while protecting the procedural rights of both parties.

Amendment    109

Proposal for a directive

Article 5 – paragraph 3 a (new)

Text proposed by the Commission

Amendment

 

3a.  Where such information is nevertheless made public, the buyer shall not, on the basis of that information, perform any detrimental acts in relation to the supplier. If the buyer breaches that prohibition, the buyer shall be liable for compensation for the damage caused to the supplier, including loss, loss of profit and reputational damage.

Amendment    110

Proposal for a directive

Article 5 – paragraph 4

Text proposed by the Commission

Amendment

4.  Where the enforcement authority considers that there are insufficient grounds for acting on a complaint, it shall inform the complainant about the reasons.

deleted

Amendment    111

Proposal for a directive

Article 5 – paragraph 4 a (new)

Text proposed by the Commission

Amendment

 

4a.  The Commission shall draw up a multilingual guide, which shall be available on its website, explaining how to draft a complaint and what type of information must be provided to the respective enforcement authorities across the Union to decide whether a formal investigation can be opened.

Justification

SMEs often do not have the expertise and know-how to defend their rights. This is particularly true for SMEs in the developing world. Hence, the Commission’s advice and support is indispensable for SMEs to protect and enforce their rights.

Amendment    112

Proposal for a directive

Article 6 – paragraph 1 – introductory part

Text proposed by the Commission

Amendment

Member States shall ensure that the enforcement authority is properly equipped and shall confer on it the following powers:

Member States shall ensure that their enforcement authorities are properly equipped and have the necessary resources, including sufficient budget and expertise, to ensure the proper and fair functioning of the agricultural and food supply chain. They shall confer on them the following powers:

Amendment    113

Proposal for a directive

Article 6 – paragraph 1 – point a

Text proposed by the Commission

Amendment

(a)  to initiate and conduct investigations on its own initiative or based on a complaint;

(a)  to proactively initiate and conduct investigations on its own initiative based on reasonable suspicion or on a complaint, including anonymous or whistle-blower complaints ;

Amendment    114

Proposal for a directive

Article 6 – paragraph 1 – point b a (new)

Text proposed by the Commission

Amendment

 

(ba)  to perform unannounced on-site inspections within the framework of its investigations;

Amendment    115

Proposal for a directive

Article 6 – paragraph 1 – point c

Text proposed by the Commission

Amendment

(c)  to take a decision establishing an infringement of the prohibitions laid down in Article 3 and require the buyer to terminate the prohibited trading practice. The authority may abstain from taking any such decision, if such decision would risk revealing the identity of a complainant or disclosing any other information in respect of which the complainant considers disclosure harmful to his interests, provided that the complainant has identified that information in accordance with Article 5(3);

(c)  to take a decision establishing an infringement of the prohibitions laid down in Article 3 and grant the supplier interim relief to put an end to the forbidden commercial practice, and require the buyer to terminate the prohibited trading practice, as well as to annul the relevant clauses or illegal contracts. The authority may abstain from taking any such decision, if such decision would risk revealing the identity of a complainant or disclosing any other information in respect of which the complainant considers disclosure harmful to his interests, provided that the complainant has identified that information in accordance with Article 5(3);

Amendment    116

Proposal for a directive

Article 6 – paragraph 1 – point d

Text proposed by the Commission

Amendment

(d)  to impose a pecuniary fine on the author of the infringement. The fine shall be effective, proportionate and dissuasive taking into account the nature, duration and gravity of the infringement;

(d)  to impose a pecuniary fine and/or other equally effective sanctions on the natural or legal person found to have carried out an infringement of this Directive, in accordance with national legislation. The fine and the other sanctions shall be effective, proportionate to the harm caused and dissuasive taking into account the nature, duration and gravity of the infringement. Repeated infringements by the same buyer shall be taken into account when determining the pecuniary fine and the other sanctions to be applied;

Amendment    117

Proposal for a directive

Article 6 – paragraph 1 – point d a (new)

Text proposed by the Commission

Amendment

 

(da)  to arrange for compensation of damages by the author of an infringement in cases where confidentiality has been requested by the complainant;

Amendment    118

Proposal for a directive

Article 6 – paragraph 1 – point e

Text proposed by the Commission

Amendment

(e)  to publish its decisions relating to points (c) and (d);

(e)  to publish systematically its decisions relating to points (c) and (d);

Justification

This amendment allows the systematic publication of decisions issued by the enforcement authorities. Thus companies guilty of unfair commercial practices are subject to a name and shame.

Amendment    119

Proposal for a directive

Article 6 – paragraph 1 – point f

Text proposed by the Commission

Amendment

(f)  to inform buyers and suppliers about its activities, by way of annual reports, which shall inter alia describe the number of complaints received and the investigations initiated and closed by it. For each investigation, the report shall contain a summary description of the matter and the outcome of the investigation.

(f)  to publish a review of its enforcement actions and activities, by way of annual reports, which shall inter alia describe the characteristics of the unfair trading practices identified and the number of complaints received and the investigations initiated and closed by it, and those still underway, as well as a list of the enterprises which have had findings made against them. For each investigation, the report shall contain a summary description of the matter, the conclusions of the investigation and information on the outcome of the procedure as well as the decision taken, in line with the confidentiality rules established under national law.

Justification

The purpose of the present amendment is to ensure the confidentiality of the work of the enforcement authorities and of ongoing investigations, in line with national confidentiality rules.

Amendment    120

Proposal for a directive

Article 6 – paragraph 1 a (new)

Text proposed by the Commission

Amendment

 

1a.  Member States shall ensure that the exercise of those powers is subject to appropriate safeguards in respect of rights of defence, in accordance with the general principles of Union law and the Charter of Fundamental Rights of the European Union, including where the complainant requests confidential treatment of information pursuant to Article 5(3).

Justification

As regards the anonymous complaints, the national rules concerning transparency of trials and legal proceedings need to be taken into account. The confidentiality of the identity of the complainant is important. However, it is necessary also to make sure that there is no contradiction with the article 6 of European Convention on Human rights.

Amendment    121

Proposal for a directive

Article 6 a (new)

Text proposed by the Commission

Amendment

 

Article 6a

 

Obligations of the enforcement authority

 

1.   Enforcement authorities shall control and ensure the proper and fair functioning of the agricultural and food supply chain in the Union.

 

2.   Within 30 days from the receipt of a complaint, the enforcement authority shall inform the complainant about its decision to act or not to act on the complaint.

 

3.   Where the enforcement authority considers that there are insufficient grounds for acting on a complaint, it shall adopt a formal reasoned decision rejecting the complaint and inform the complainant about that decision. The decision shall be subject to judicial review.

 

4.   Where the enforcement authority considers that there are sufficient grounds for acting on a complaint, it shall initiate and conduct an investigation, which shall be concluded within six months from the initiation of the investigation. In duly justified cases, the period of six months may be extended by an additional period of six months. The enforcement authority shall inform the complainant of this extension and of the reasons for it.

 

5.   Where, as a result of the investigation, an infringement of this Directive is established, the enforcement authority shall require the buyer to terminate the prohibited trading practice and impose a pecuniary fine and/or other equally effective sanctions on the natural or leagl person author of the infrigement, in accordance with national legislation. The fine and the other sanctions shall be effective, proportionate to the harm caused and dissuasive taking into account the nature, duration and gravity of the infringement. Repeated infringements by the same buyer shall be taken into account when determining the pecuniary fine and the other sanctions to be applied.

 

6.   The enforcement authority may abstain from taking any measure referred to in paragraph 5 of this Article, if such decision would risk revealing the identity of a complainant or disclosing any other information in respect of which the complainant considers disclosure harmful to his interests, provided that the complainant has identified that information in accordance with Article 5(3).

 

7.   The enforcement authority may decide to publish its decisions relating to paragraph 5 of this Article.

Amendment    122

Proposal for a directive

Article 6 b (new)

Text proposed by the Commission

Amendment

 

Article 6b

 

Delegated acts

 

The Commission shall be empowered to adopt delegated acts setting out criteria and a common methodology for use by enforcement authorities when determining the amount of pecuniary fines, having regard to at least the following elements: the turnover of the infringer, the benefits accrued by the infringer from the unfair trading practice, the number and status of the victims of the infringement, and the repeated use of unfair trading practices by a buyer.

Amendment    123

Proposal for a directive

Article 6 c (new)

Text proposed by the Commission

Amendment

 

Article 6c

 

Mediation or alternative dispute resolution mechanism

 

1.   Without prejudice to the powers and obligations of the enforcement authority laid down in Articles 6 and 6a, Member States shall promote the use of effective and independent mediation procedures or an alternative dispute resolution mechanism in case of a dispute between a supplier and a buyer due to an unfair trading practice as defined in point (-a) of Article 2.

 

2.   The use of mediation or of an alternative dispute resolution mechanism shall be without prejudice to the right of the supplier to submit a complaint, as set out in Article 5.

 

3.   The Commission may facilitate dialogue and exchange of proven practices concerning the use of mediation or of an alternative dispute resolution mechanism at Union level.

Amendment    124

Proposal for a directive

Article 7 – title

Text proposed by the Commission

Amendment

Cooperation between enforcement authorities

Union Enforcement Network

Amendment    125

Proposal for a directive

Article 7 – paragraph 1

Text proposed by the Commission

Amendment

1.  Member States shall ensure that enforcement authorities cooperate effectively with each other and provide each other mutual assistance in investigations that have a cross-border dimension.

1.  A Union Enforcement Network (‘the Network’) is hereby established.

Amendment    126

Proposal for a directive

Article 7 – paragraph 2

Text proposed by the Commission

Amendment

2.  The enforcement authorities shall meet once per year to discuss the application of this Directive on the basis of the annual reports referred to in Article 9(1) and best practices in the area it covers. The Commission shall facilitate those meetings.

2.  The purpose of the Network is to serve as a platform for structured cooperation between enforcement authorities of the Member States and the Commission and to streamline the practices of enforcement authorities within the Union.

Amendment    127

Proposal for a directive

Article 7 – paragraph 3

Text proposed by the Commission

Amendment

3.  The Commission shall establish and manage a website that provides for the possibility of information exchange between the enforcement authorities and the Commission, in particular in relation to the annual meetings.

deleted

Amendment    128

Proposal for a directive

Article 7 – paragraph 3 a (new)

Text proposed by the Commission

Amendment

 

3a.  The Commission shall ensure that it has a functional mailbox available on its website to support small and medium-sized enterprises (SMEs) both inside and outside of the Union to protect and enforce their rights against unfair trading practices, by providing information about the procedures. All relevant information shall be provided in all Union languages.

Amendment    129

Proposal for a directive

Article 7 a (new)

Text proposed by the Commission

Amendment

 

Article 7a

 

Composition of the Union Enforcement Network

 

1. The Network shall be composed of one representative from each enforcement authority referred to in Article 4, two representatives from the Commission and their respective alternates.

 

2. The Network shall meet at regular intervals and, where necessary, at the duly justified request of the Commission or a Member State.

 

3. The Network shall involve all relevant stakeholders in a discussion of the application of the directive, with a view to facilitating dialogue and exchange of good practices and promoting a common approach.

Amendment    130

Proposal for a directive

Article 7 b (new)

Text proposed by the Commission

Amendment

 

Article 7b

 

Coordinated enforcement tasks

 

1. The Network shall have the following tasks:

 

(a) to discuss the application of this Directive on the basis of the annual reports referred to in Article 9(1);

 

(b) to facilitate the exchange of information on relevant topics including on the results of investigations referred to in point (a) of Article 6(1) and new cases of unfair trading practices;

 

(c) to coordinate and facilitate the exchange information and best practices concerning Member States national legislation and experience of enforcement in a coordinated and systematic way in order to improve the common understanding on which specific types of business practice should be considered unfair trading practices and to better address potential cross-border unfair trading practices;

 

(d) to examine any question as regards the application of this Directive and adopt guidelines and recommendations in order to encourage consistent application, including by creating a common methodology for defining and setting penalties;

 

(e) to promote and facilitate collaboration with other relevant networks and groups, in particular the Supply Chain Initiative.

 

2. The Commission shall have the following tasks:

 

(a) to establish and manage a website that provides for the possibility of information exchange between the enforcement authorities and the Commission, in particular in relation to the annual meetings;

 

(b) to facilitate the organisation of common training programmes and exchanges of personnel between enforcement authorities, and where appropriate, with the enforcement authorities of third countries;

 

(c) to organise the meetings of the Network referred to in Article 7a(2);

 

(d) to facilitate technical or scientific expertise for the purpose of implementing enforcement administrative cooperation.

Amendment    131

Proposal for a directive

Article 8 – paragraph 1

Text proposed by the Commission

Amendment

Member States may provide for rules designed to combat unfair trading practices going beyond those set out in Articles 3, 5, 6 and 7, provided that such national rules are compatible with the rules on the functioning of the internal market.

1.   Member States may maintain or introduce rules designed to combat unfair trading practices which are stricter than those laid down in this Directive, provided that such national rules are compatible with the rules on the functioning of the internal market, including the free movement of goods and services and the freedom of establishment, non-discrimination and access to impartial and independent judicial review.

Amendment    132

Proposal for a directive

Article 8 – paragraph 1 a (new)

Text proposed by the Commission

Amendment

 

1a.  Member States shall inform the Commission of any new national rules which are stricter than those laid down in this Directive.

Amendment    133

Proposal for a directive

Article 8 – paragraph 1 b (new)

Text proposed by the Commission

Amendment

 

1b.  This Directive shall be without prejudice to national rules aimed at combating unfair trading practices that are not within its scope, provided that such rules are compatible with the rules on the functioning of the internal market.

Amendment    134

Proposal for a directive

Article 8 – paragraph 1 c (new)

Text proposed by the Commission

Amendment

 

1c.  Proceedings in relation to point © to (e) of Article 6 shall comply with the administrative and legal proceedings and principles in the specific Member State.

Justification

As regards the anonymous complaints, the national rules concerning transparency of trials and legal proceedings need to be taken into account.

Amendment    135

Proposal for a directive

Article 8 a (new)

Text proposed by the Commission

Amendment

 

Article 8 a

 

National observatories on the functioning of the agricultural and food supply chain

 

1.  In order to keep economic actors and the Member States' enforcement authorities informed, the Member States may set up national observatories on the functioning of the agricultural and food supply chain.

 

2.  Member States shall ensure that their national observatories are properly equipped and shall confer on them the following powers:

 

(a) the collection of all the available statistical data necessary for the analysis of price formation mechanisms and margins in the agricultural and food supply chain and the existence of unfair commercial practices;

 

(b)   analysis of the information collected and the undertaking or commissioning of research necessary for its activity;

 

(c)   the production of summary reports on the sectors studied and the regular dissemination of its work;

 

(d)   contributing to, and/or assisting the implementing authority in, the drafting of the report on unfair trading practices in inter-company relations within the agricultural and food supply chain, as set out in Article 9.

Justification

The aim of this amendment is to make it possible for Member States to set up national observatories on the functioning of the agri-food supply chain, for the purpose of keeping economic actors and the Member States' enforcement authorities informed on the functioning of the agri-food supply chain.

Amendment    136

Proposal for a directive

Article 9 – paragraph 1

Text proposed by the Commission

Amendment

1.  By 15 March of each year, Member States shall send to the Commission a report on unfair trading practices in business-to-business relationships in the food supply chain. That report shall contain, in particular, all relevant data on the application and enforcement of the rules under this Directive in the Member State concerned in the previous year.

1.  By 15 March of each year, Member States shall send to the Commission a report on unfair trading practices in business-to-business relationships in the agricultural and food supply chain. That report shall contain, in particular, all relevant data on the application and enforcement of the rules under this Directive, as well as on the efficacy of the measures implemented by the enforcement authority in the Member State concerned in the previous year. Member States shall ensure dialogue with all relevant stakeholders, including consumer organisations, on the functioning of the supply chain in their territory.

Amendment    137

Proposal for a directive

Article 11 – paragraph 1

Text proposed by the Commission

Amendment

1.  No sooner than three years after the date of application of this Directive, the Commission shall carry out an evaluation of this Directive and present a report on the main findings to the European Parliament, the Council and the European Economic and Social Committee and the Committee of the Regions.

1.  Within three years after the date of application of this Directive, the Commission shall carry out the first evaluation of this Directive and present a report on the main findings to the European Parliament, the Council and the European Economic and Social Committee and the Committee of the Regions.

Amendment    138

Proposal for a directive

Article 11 – paragraph 1 a (new)

Text proposed by the Commission

Amendment

 

1a.  That evaluation shall assess, but not be limited to:

 

(a)   the effectiveness in protecting the weakest actors in the agricultural and food supply chain against unfair trading practices;

 

(b)   the effectiveness of cooperation between competent enforcement authorities and whether there is a need for coordination to enforce and monitor Union legislation on unfair trading practices

 

 

Amendment    139

Proposal for a directive

Article 11 – paragraph 1 b (new)

Text proposed by the Commission

Amendment

 

1b.  On the basis of the findings of its report, the Commission may present appropriate legislative proposals.

Amendment    140

Proposal for a directive

Article 11 a (new)

Text proposed by the Commission

Amendment

 

Article 11a

 

Reporting on effects on consumers

 

1.   The Commission shall carry out an evaluation to establish whether specific trading practices which are unfair have negative effects on consumers, and shall present a report on the main findings to the European Parliament, the Council and the European Economic and Social Committee and the Committee of the Regions.

 

2.   On the basis of the findings of its report, the Commission may present appropriate legislative proposals.

Amendment    141

Proposal for a directive

Article 12 – paragraph 1 – subparagraph 2 a (new)

Text proposed by the Commission

Amendment

 

For existing supply contracts concluded before … [the date of entry into force of this Directive], Member States may provide for a transitional period of not more than six months after … [the date of entry into force of this Directive] for compliance with the rules laid down in the Directive.

(1)

Not yet published in the Official Journal.


EXPLANATORY STATEMENT

Background of the Commission proposal

In an agricultural policy environment that has become distinctly more market oriented, the good and fair governance of the agricultural and food supply chain has become crucial for all the actors involved, and especially for agricultural producers. The latter are particularly vulnerable to unfair trading practices (UTPs) as they often lack bargaining power that would match that of their partners that buy their products. This is mainly due to the limited alternatives they have for getting their products to final consumers, as well as to the structural weakness of the farming system compared to its downstream partners.

UTPs can put operators’ profits and margins under pressure, which can drive otherwise viable and competitive players out of business. For example, unilateral reductions of the contracted quantity for perishable goods equates to income foregone for an operator who may not easily find an alternative outlet for these goods. Late payments for perishable products after they are delivered and sold by the buyer constitute extra financial cost for the supplier. Possible obligations for suppliers to take back products not sold by the buyer may constitute an undue transfer of risk to suppliers. Being forced to contribute to generic in-store promotional activities of distributors, without drawing a fair benefit, may unduly reduce a supplier’s margin.

There is a wide-spread consensus that UTPs occur throughout the food supply chain. It is characteristic that no less than three Commission communications since 2009 have focused on the food supply chain including UTPs. Parliament adopted in June 2016 a resolution calling on the Commission to submit a proposal for a Union legal framework concerning UTPs. The Council, in December 2016, invited the Commission to undertake an impact assessment with a view to proposing a Union legal framework or non-legislative measures to address UTPs.

Specific UTP rules already exist in 20 Member States. However, their heterogeneity is significant. In certain Member States, there is no, or ineffective specific protection against UTPs. Another existing instrument is the voluntary Supply Chain Initiative (SCI), which is a private industry initiative that seeks to govern UTPs and provides a forum for early and non-litigious dispute resolution. The SCI is, however, unlikely to develop into a comprehensive governance framework. This is because participation in the SCI is voluntary and the SCI so far does not cover all operators in the food supply chain. For instance, while retailers are members of the SCI, “retailer buying alliances” do not participate in the SCI, nor do the organisations representing agricultural producers; the latter did not join the SCI because, in their view, it does not ensure sufficient confidentiality for complaining parties and does not provide for independent investigations or sanctions.

For those reasons, the present Commission proposal on UTPs corresponds to a strong and longstanding demand from the European farming community and a long felt belief that farmers should be better protected against abusive practices from processors and retailers. It can be argued that the absence, so far, of a common UTP framework stands in contrast to other areas which the CAP governs, and which have direct relevance for operators, such as competition rules, state aid rules and marketing standards. In these areas, the common market organisation (Regulation (EU) No 1308/2013) lays down common rules relevant to the market conditions operators face in the EU so as to contribute to economic and social cohesion, as well as to a level playing field in the single market.

The present proposal for a Directive aims at reducing the occurrence of UTPs in the food supply chain by introducing a minimum common standard of protection across the EU that consists of a short list of specific prohibited UTPs. The protection covers suppliers in the food supply chain insofar as they sell food products to buyers who are not small and medium-sized. This scope aims at contributing to a fair standard of living for the agricultural community, an objective of the CAP under Article 39 TFEU.

Article 43 TFEU, being the principal CAP legal basis, serves as the Commission proposal’s unique legal basis. The measures foreseen in the proposal concern UTPs occurring in the agricultural and food supply chain in relation to the trade of products originating with agricultural producers. It should be noted that, according to Article 38(2) and (3) TFEU, the CAP primarily covers the agricultural products listed in Annex 1 to the TFEU. However, the European Court of Justice has explicitly confirmed that food products not listed in Annex I TFEU (Annex I products are deemed “agricultural products” under the Treaty) can also be covered by acts adopted under Article 43 TFEU if this contributes to the achievement of one or more of the CAP objectives and agricultural products are principally covered.(1)

Moreover, an approach which protects agricultural producers and their associations (cooperatives and other producer organisations) must also take into account indirect negative effects they may suffer through UTPs occurring downstream in the food supply chain, i.e. by operators who are not farmers but whose weak bargaining position in the downstream chain makes them vulnerable to UTPs. Protection against UTPs applying to downstream suppliers prevents unintended consequences for farmers due to trade being diverted to their investor-owned competitors – for example at the processing stage – which would not enjoy protection (e.g. less legal risk for buyers to be confronted with UTP accusations).

Furthermore, the Commission points out that the proposed measures are complementary to measures existing in Member States and the code of conduct of the SCI.

Rapporteur’s position and amendments proposed

The rapporteur supports the Commission proposal as a long expected legislative instrument to defend agricultural producers’ bargaining position in the agricultural and food supply chain; an instrument which can finally complement the measures introduced via Regulation (EU) 2017/2393, the so-called Omnibus Regulation, aiming at reinforcing the negotiating prerogatives of farmers in the EU. It should be reminded that the belief in the necessity of such an instrument was backed up by the conclusions of the Agricultural Markets Task Force issued in November 2016, and it was shared by Parliament in its resolution adopted on 7 June 2016, as well as by the EU Agriculture Ministers who adopted unanimous conclusions in this respect at their Informal Council meeting of 12-13 December 2016 in Bratislava.

The rapporteur underlines that completing the legislative procedure on the UTPs proposal before the end of the present parliamentary term, thus making this new legislation a concrete “deliverable” for European farmers, is both an important and realistic objective for this Parliament. On the side of the other co-legislator, the Austrian Presidency has clearly indicated its intention to give top priority to the UTPs proposal, as indicated in a letter of 4 June 2018 by the Austrian Minister for Sustainability and Tourism, Elisabeth Köstinger, to the Chair of the AGRI Committee. The letter indicated the UTPs proposal as one of the main priorities for the Austrian Presidency and reminded that both Parliament and the Council had asked repeatedly for legislation to protect farmers who are the weakest link in the supply chain, before concluding that “the time has come to harmonise twenty different national regulations and to set minimum standards for all Member States” so as to “solve the problems of farmers treated unfairly by other, more powerful partners in the supply chain”.

Amendments proposed by the rapporteur

While widely supporting the proposal, the rapporteur proposes nevertheless a number of amendments to improve its efficiency. These are the following:

•  Extension of the scope to suppliers in the food supply chain which are not SMEs, in order to include farmers’ organizations and avoid possible trade diversions away from SMEs;

•  Extension of the scope to all agricultural products, i.e. not only to food products, in order to include the horticultural sector, feed industry, and other agricultural sectors not falling under food production;

•  Extension of the “buyer’s” definition to include those operators that, though established outside the EU, buy and sell products in the EU market. The aim is to avoid that a buyer can escape the provisions of the Directive by simply moving its place of establishment outside the EU;

•  Again as regards the definition of the “buyer”, the provision of related services should be included into the scope, together with processing, distribution or retail of agricultural and food products;

•  Inclusion of a definition of “unfair trading practice” (in the sense of an overarching principle), along the lines of the definition given by the Council Conclusions of 12 December 2016, which is reflected in recital 1 of the proposed Directive;

•  Inclusion of a definition of “economic dependence” as a power relationship between a supplier and a buyer;

•  Introduction of a payment term for non-perishable products at 60 days from the receipt of the invoice, as also provided for in Directive 2011/7/EU on late payment;

•  Exemption from the provisions on payment terms for all contributions from farmers to their producer organisations and cooperatives, as well as for agreements of inter-branch organisations where those agreements concern quality products;

•   Definition of the notion of “short notice” (when a buyer cancels orders of perishable food products) with a fixed time-limit (60 days);

•  Improvement of the introductory sentence in paragraph 2 of Article 3 (so-called “grey UTPs”) through including the concept of “economic dependence”;

•  Introduction of the possibility for Member States to prohibit any other unfair trading practice (i.e. going beyond the prohibitions of Article 3), based on the definition of “unfair trading practice” added into Article 2;

•  Inclusion of mandatory written contracts upon request of a supplier, as laid down - through the “Omnibus Regulation”- in Article 168 of the Single CMO, and of the possibility for Member States to encourage an increased contractualization between different actors in the supply chain;

•  Inclusion of the possibility for complainants to lodge a complaint to foreign authorities through their own national authorities;

•  Extension to representative associations of the right to lodge a complaint on behalf of one or more of their members;

•  Inclusion of the obligation for the enforcement authority to start an investigation within 60 days from the date on which the complaint has been lodged, and to conclude it within 6 months. In duly justified cases, the 6 months can be extended by another 6 months (thus, the whole investigation has to be concluded within 14 months from the complaint);

•  Inclusion of the obligation for the enforcement authority, in case an infringement has been established, to require the buyer to terminate the prohibited trading practice;

•  Introduction of the possibility for Member States to promote the use of mediation or an alternative dispute resolution mechanism;

•  Introduction of the obligation for Member States to include in their annual report to the Commission of an evaluation on the effectiveness of the implemented measures in order to ban UTPs.

(1)

Judgment of the European Court of Justice, C-343/07, 2 July 2009, paragraphs 50-51.


OPINION of the Committee on the Internal Market and Consumer Protection (26.9.2018)

for the Committee on Agriculture and Rural Development

on the proposal for a directive of the European Parliament and of the Council on unfair trading practices in business-to-business relationships in the food supply chain

(COM(2018)0173 – C8‑0139/2018 – 2018/0082(COD))

Rapporteur for opinion(*): Marc Tarabella

(*) Associated committee – Rule 54 of the Rules of Procedure

SHORT JUSTIFICATION

Overall, the Rapporteur welcomes the approach proposed by the Commission as a first step to regulate UTPs in the food supply chain. However, the Rapporteur is convinced that a number of points of the proposal should be clarified and improved.

The main changes introduced by the Rapporteur are the following:

1. Extension of the scope around 3 axes:

• Broadening the scope of agricultural products to protect all suppliers, including agricultural producers who supply products listed in Annex I of the Treaty and not intended for human consumption. These producers are not placed in a different situation from the producers supplying foodstuffs. To treat them differently would constitute discrimination, prohibited by the Treaty and the European Charter of Fundamental Rights.

• Broadening the scope of the entire supply chain, by prohibiting UTPs to the benefit of all producers and purchasers. The proposal must provide a means of action for the most vulnerable actors with very limited bargaining power. Similarly, the choice to prohibit UTPs only for certain operators is questionable. If these practices are unfair, they must be prohibited to all operators. All companies should respect the rules of good competitive practice, good faith and loyalty in contractual relationships. These different treatments, again, are not justified by differences in objective situations and therefore constitute discrimination.

• Broadening the scope to all buyers who buy and sell on the domestic market, including those whose place of business is outside the EU. This widening of the scope is in line with greater protection for the most vulnerable suppliers.

2. Definition and prohibition of unfair commercial practices

Unfair business-to-business commercial practices are not defined by EU law. It is therefore necessary to propose a sufficiently broad definition. Such a definition is particularly useful in situations that do not correspond to those set out in the exhaustive list of commercial practices.

As EU law does not yet have a legal framework for B2B unfair terms, it is necessary to treat suppliers, who are in many cases farmers or SMEs and therefore "weak parties" in the contract, and put in place a protective regime. This protection should redress the balance of power during contract negotiations with buyers. The rapporteur is of the opinion that UTPs between buyers and suppliers should be prohibited as a matter of principle, and not just those covered by the restrictive list proposed by the Commission. That is the meaning of Article 1.1 of the proposed Directive. This list must not preclude the sanction of other unfair practices, which do not necessarily appear there. All UTPs, as well as the exploitation of the state of economic dependence, must be prohibited, otherwise the directive would be deprived of real meaning. The rapporteur also proposes to add to the list of prohibited unfair commercial practices the refusal to conclude a written contract with a supplier or the refusal to communicate to a supplier the general conditions of sale or to not provide them with sufficiently detailed or unambiguous information on the contractual terms of purchase. Finally, the rapporteur adds the prohibition of sales at loss of agricultural products or foodstuffs, except when it concerns products whose expiry date is two days after the date of sale to the list of unfair trading practices that shall be prohibited if not agreed in clear and unambiguous terms at the conclusion of the supply agreement.

3. Complaints by the supplier where the buyer or the supplier is established

The Commission's proposal that the supplier shall lodge a complaint with the enforcement authority of the Member State in which the buyer suspected of engaging in a prohibited commercial practice is established, is not sufficiently protective for the supplier, who will have to write their complaint in a language other than their own and in a manner that they will not be able to understand. It is more protective for them to foresee that they are addressing the authority of the Member State in which they are located and this authority transfers the complaint to the competent authority of the Member State where the buyer is located.

4. Mediation or alternative dispute resolution mechanism

The rapporteur proposes a new article on the use of mediation or other matters in case of a dispute between a supplier and a buyer due to UTPs.

5. The setting-up of a “Union Enforcement Network”

The Rapporteur strongly believes that a coordination mechanism of enforcement authorities that could take the form of a Network is needed in order to foster better coordination between enforcement authorities, EU institutions and the relevant actors of the supply chain. The Rapporteur wishes to add a true European dimension to the Network by giving it the power to coordinate and facilitate the exchange information and best practices concerning Member States national legislation and experience of enforcement in a coordinated and systematic way in order to improve the common understanding on which specific types of business practice should be considered UTPs. A similar mechanism exists in the area of competition law (the ECN) and contributes to coordination among national competition authorities and evidence- and application-based discussions.

AMENDMENTS

The Committee on the Internal Market and Consumer Protection calls on the Committee on Agriculture and Rural Development, as the committee responsible, to take into account the following amendments:

Amendment    1

Proposal for a directive

Recital 2 a (new)

Text proposed by the Commission

Amendment

 

(2a)  In 2010, the Commission-led High Level Forum endorsed a set of principles of good practice in vertical relations in the food supply chain agreed by business organisations representing all links in the food supply chain, including farmers. These principles became the basis for the Supply Chain Initiative, launched in 2013.

Amendment    2

Proposal for a directive

Recital 3

Text proposed by the Commission

Amendment

(3)  Different operators are active in the food supply chain at the stages of production, processing, marketing, distribution and retail of food products. The chain is by far the most important channel for bringing food products from “farm to fork”. Those operators trade food products, that is to say primary agricultural products, including fishery and aquaculture products, as listed in Annex I to the Treaty for use as food, and other food products not listed in that Annex but processed from agricultural products for use as food.

(3)  Different operators are active in the agricultural and food supply chain at the stages of production, processing, marketing, distribution and retail of agricultural or food products. The chain is by far the most important channel for delivering products.Those operators trade agricultural or food products, that is to say primary agricultural products, including fishery and aquaculture products, as listed in Annex I to the Treaty, other food products not listed in that Annex but processed from agricultural products for use as food and agricultural products.

Amendment    3

Proposal for a directive

Recital 5

Text proposed by the Commission

Amendment

(5)  The number and size of operators vary across the different stages of the food supply chain. Differences in bargaining power relate to the different levels of concentration of operators and can enable the unfair exercise of bargaining power by using unfair trading practices. Unfair trading practices are in particular harmful for small and medium-sized operators in the food supply chain. Agricultural producers, who supply primary agricultural products, are largely small and medium-sized.

(5)  Freedom of contract is a cornerstone of any business-to-business relationship in the market economy and parties should be able to design contracts that best suit their needs. However, the number and size of operators vary across the different stages of the food supply chain. Therefore, differences in bargaining power relate to the different levels of concentration of operators and can enable the unfair exercise of bargaining power by using unfair trading practices. Unfair trading practices are in particular harmful for small and medium-sized operators in the food supply chain. Agricultural producers, who supply primary agricultural products, are largely small and medium-sized.

Amendment    4

Proposal for a directive

Recital 6

Text proposed by the Commission

Amendment

(6)  A majority of all Member States, but not all of them, have specific national rules that protect suppliers against unfair trading practices occurring in business-to-business relationships in the food supply chain. Where reliance on contract law or self-regulatory initiatives is possible, fear of retaliation against a complainant limits the practical value of these forms of redress. Certain Member States, which have specific rules on unfair trading practices in place, therefore entrust administrative authorities with their enforcement. However, Member States’ unfair trading practices rules - to the extent they exist - are characterised by significant divergence.

(6)  A majority of all Member States, but not all of them, have specific national rules that protect suppliers against unfair trading practices occurring in business-to-business relationships in the food supply chain. Fear of retaliation against a complainant is often invoked as an issue in seeking redress. Certain Member States, which have specific rules on unfair trading practices in place, therefore entrust administrative authorities with their enforcement. However, Member States’ unfair trading practices rules - to the extent they exist - are characterised by significant divergence.

Amendment    5

Proposal for a directive

Recital 7

Text proposed by the Commission

Amendment

(7)  A minimum Union standard of protection against certain manifestly unfair trading practices should be introduced to reduce the occurrence of such practices and to contribute to ensuring a fair standard of living for agricultural producers. It should benefit all agricultural producers or any natural or legal person that supplies food products, including producer organisations and associations of producer organisations, provided that all those persons meet the definition of micro, small and medium-sized enterprises set out in the Annex to Commission Recommendation 2003/361/EC1. Those micro, small or medium suppliers are particularly vulnerable to unfair trading practices and least able to weather them without negative effects on their economic viability. As the financial pressure on small and medium-sized enterprises caused by unfair trading practices often passes through the chain and reaches agricultural producers, rules on unfair trading practices should also protect small and medium-sized intermediary suppliers at the stages downstream of primary production. Protection of intermediary suppliers should also avoid unintended consequences (notably in terms of unduly raising prices) of trade diversion away from agricultural producers and their associations, who produce processed products, to non-protected suppliers.

(7)  A minimum Union standard of protection against certain manifestly unfair trading practices should be introduced to reduce the occurrence of such practices and to contribute to ensuring a fair standard of living for agricultural producers. It should benefit all agricultural producers or any natural or legal person that supplies agricultural or food products, including producer organisations and associations of producer organisations. Those suppliers are particularly vulnerable to unfair trading practices and least able to weather them without negative effects on their economic viability. As the financial pressure caused by unfair trading practices often passes through the chain and reaches agricultural producers, rules on unfair trading practices should also protect intermediary suppliers at the stages downstream of primary production. Protection of intermediary suppliers should also avoid unintended consequences (notably in terms of unduly raising prices) of trade diversion away from agricultural producers and their associations, who produce processed products, to non-protected suppliers.

____________________

 

1 OJ L 124, 20.5.2003, p. 36.

 

Justification

This amendment seeks to broaden the scope by prohibiting unfair commercial practices to the benefit of all producers and buyers. The proposal must provide a means of action for the most vulnerable actors with very limited bargaining power. If UTPs are unfair, they must be prohibited to all operators. All companies should respect the rules of good competitive practice, good faith and loyalty in contractual relationships. Different treatments are not justified by differences in objective and sufficient situations and therefore constitute discrimination.

Amendment    6

Proposal for a directive

Recital 7 a (new)

Text proposed by the Commission

Amendment

 

(7a)  Services in relation to processing and distribution in the agricultural and food supply chain should be included in the scope of this Directive. Services such as for example transport, disinfection or invoicing should not fall under the scope of such services, as they are not in connection with processing and distribution in the agricultural and food supply chain.

Amendment    7

Proposal for a directive

Recital 7 b (new)

Text proposed by the Commission

Amendment

 

(7b)  As the place of establishment of a buyer is not always the same as the place where the agricultural and food products are delivered and marketed, the relevant rules should apply to all buyers, regardless of their place of establishment, when the products which they buy are intended for the EU agricultural and food supply chain.

Justification

This amendment aims to include in the scope of the Directive all buyers who buy and sell on the internal market, including those whose place of establishment is located outside the European Union so as to avoid a situation where they may avoid falling under the scope of the provisions of the Directive.

Amendment    8

Proposal for a directive

Recital 8

Text proposed by the Commission

Amendment

(8)  Suppliers established outside the Union should be able to rely on the Union minimum standard when they sell food products to buyers established in the Union to avoid unintended distorting effects resulting from the protection of suppliers in the Union.

(8)  Suppliers established outside the Union should be able to rely on the Union minimum standard when they sell agricultural and food products to buyers to avoid unintended distorting effects resulting from the protection of suppliers in the Union.

Justification

The diminishing share of revenues reaching small scale food producers and workers in developing countries and the working conditions they face as a consequence of unfair trading practices undermine the Union’s development policy and its objectives under the 2030 Agenda for Sustainable Development.

Amendment    9

Proposal for a directive

Recital 10

Text proposed by the Commission

Amendment

(10)  As a majority of Member States already have national rules on unfair trading practices, albeit diverging, it is appropriate to use the tool of a Directive to introduce a minimum protection standard under Union law. This should enable Member States to integrate the relevant rules into their national legal order in such a way as to bring about a cohesive regime. Member States should not be precluded from adopting and applying on their territory stricter national laws protecting small and medium-sized suppliers and buyers against unfair trading practices occurring in business-to-business relationships in the food supply chain, subject to the limits of Union law applicable to the functioning of the internal market.

(10)  As a majority of Member States already have national rules on unfair trading practices, albeit diverging, it is appropriate to use the tool of a Directive to introduce a minimum protection standard under Union law. This should enable Member States to integrate the relevant rules into their national legal order in such a way as to bring about a cohesive regime. Member States should not be precluded from adopting and applying on their territory stricter national laws protecting suppliers and buyers against unfair trading practices occurring in business-to-business relationships in the agricultural and food supply chain, subject to the limits of Union law applicable to the functioning of the internal market.

Amendment    10

Proposal for a directive

Recital 11

Text proposed by the Commission

Amendment

(11)  As unfair trading practices may occur at any stage of the sale of a food product, i.e. before, during or after a sales transaction, Member States should ensure that the provisions of this Directive should apply to such practices whenever they occur.

(11)  As unfair trading practices may occur at any stage of the sale of a food product, i.e. before, during or after a sales transaction, or in connection with the provision of services by the buyer to the supplier, Member States should ensure that the provisions of this Directive should apply to such practices whenever they occur.

Amendment    11

Proposal for a directive

Recital 14

Text proposed by the Commission

Amendment

(14)  Complaints by producer organisations or associations of such organisations can serve to protect the identity of individual members of the organisation who are small and medium-sized suppliers and consider themselves exposed to unfair trading practices. Enforcement authorities of the Member States should therefore be able to accept and act upon complaints by such entities while protecting the procedural rights of the defendant.

(14)  Complaints by producer or supplier organisations or associations of such organisations, as well as by organisations working with producers or with a proven expertise in trading practices in the agricultural and food supply chain, including non-governmental and civil society organisations, can serve to protect the identity of individual members of the organisation who are small and medium-sized suppliers and consider themselves exposed to unfair trading practices. Enforcement authorities of the Member States should therefore be able to accept and act upon complaints by such entities while protecting the procedural rights of the defendant.

Amendment    12

Proposal for a directive

Recital 14 a (new)

Text proposed by the Commission

Amendment

 

(14a)  Special attention should be paid to the protection of the identity of complainants and other victims of practices if the authority pursues the obligation under Article 6(e) of the Directive.

Amendment    13

Proposal for a directive

Recital 15

Text proposed by the Commission

Amendment

(15)  The enforcement authorities of the Member States should have the necessary powers that enable them to effectively gather any factual information by way of information requests. They should have the power to order the termination of a prohibited practice, where applicable. The existence of a deterrent, such as the power to impose fines and the publication of investigation results, can encourage behavioural change and pre-litigation solutions between the parties and should therefore be part of the powers of the enforcement authorities. The Commission and the enforcement authorities of the Member States should cooperate closely so as to ensure a common approach with respect to the application of the rules set out in this Directive. In particular, the enforcement authorities should provide each other mutual assistance, for example by sharing information and assisting in investigations which have a cross-border dimension.

(15)  The enforcement authorities of the Member States should have the necessary powers that enable them to perform their duties. They should have the power to order the termination of a prohibited practice, where applicable so as to ensure the fair and proper functioning of the agricultural and food supply chain. The existence of a deterrent, such as the power to impose penalties, including fines or any other sanction and the publication of investigation results, can encourage behavioural change and pre-litigation solutions between the parties and should therefore be part of the powers of the enforcement authorities. It is necessary to establish a Union Enforcement Network (‘the Network’), hosted by the Commission, aimed at coordinating and facilitating the exchange of information and best practices concerning Member States national legislation and experience of enforcement in a coordinated and systematic way so as to ensure a common approach with respect to the application of the rules set out in this Directive. The Network should also help improving the common understanding on which specific types of business practice should be considered UTPs and to better address potential cross-border UTPs.

Amendment    14

Proposal for a directive

Recital 15 a (new)

Text proposed by the Commission

Amendment

 

(15a)  In order to improve the operation of the agricultural and food supply chain, Member States should be able to encourage the use of mediation or of an alternative dispute resolution mechanism, while the Commission should facilitate the dialogue and the exchange of best practices among all relevant stakeholders at EU level.

Amendment    15

Proposal for a directive

Recital 16

Text proposed by the Commission

Amendment

(16)  To facilitate effective enforcement, the Commission should help organise meetings between the enforcement authorities of the Member States where best practices can be exchanged and relevant information can be shared. The Commission should establish and manage a website to facilitate those exchanges.

(16)  To facilitate effective enforcement, the Commission should help organising the meetings of the Network where best practices can be exchanged and relevant information can be shared. The Commission should establish and manage a website to facilitate those exchanges.

Amendment    16

Proposal for a directive

Recital 17

Text proposed by the Commission

Amendment

(17)  The rules laid down in this Directive should not impair the possibility for the Member States to maintain existing rules that are further-reaching or to adopt such rules in the future, subject to the limits of Union law applicable to the functioning of the internal market. The rules would apply alongside voluntary governance measures.

(17)  The rules laid down in this Directive should not impair the possibility for the Member States to maintain existing rules that are stricter or to adopt such rules in the future, subject to the limits of Union law applicable to the functioning of the internal market. The rules should be subject to a pre-notification procedure and would apply alongside voluntary governance measures.

Amendment    17

Proposal for a directive

Recital 19

Text proposed by the Commission

Amendment

(19)  In the interest of an effective implementation of the policy in respect of unfair trading practices in business-to-business relationships in the food supply chain, the Commission should review the application of this Directive and submit a report to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions. The review should also pay particular attention to whether protection of small and medium-sized buyers of food products in the supply chain – in addition to the protection of small and medium sized suppliers – in the future would be justified,

(19)  In the interest of an effective implementation of the policy in respect of unfair trading practices in business-to-business relationships in the agricultural and food supply chain, the Commission should review the application of this Directive and submit a report to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions. The review should also pay particular attention to whether protection of buyers of food products in the supply chain – in addition to the protection of suppliers – in the future would be justified,

Amendment    18

Proposal for a directive

Article 1 – paragraph 1

Text proposed by the Commission

Amendment

1.  This Directive establishes a minimum list of prohibited unfair trading practices between buyers and suppliers in the food supply chain and lays down minimum rules concerning their enforcement and arrangements for the coordination between enforcement authorities.

1.  This Directive establishes a minimum list of prohibited unfair trading practices between buyers and suppliers in the agricultural and food supply chain and lays down minimum rules concerning their enforcement and arrangements for the coordination between enforcement authorities.

 

(This amendment (the change from "food supply chain" to "agricultural and food supply chain") applies throughout the text. Adopting it will necessitate corresponding changes throughout.)

Amendment    19

Proposal for a directive

Article 1 – paragraph 2

Text proposed by the Commission

Amendment

2.  This Directive applies to certain unfair trading practices which occur in relation to the sales of food products by a supplier that is a small and medium-sized enterprise to a buyer that is not a small and medium-sized enterprise.

2.  This Directive applies to certain unfair trading practices which occur in relation to the sales of agricultural and food products by a supplier to a buyer that is not a small and medium-sized enterprise.

 

(This amendment (the change from "food products" to "agricultural and food products") applies throughout the text. Adopting it will necessitate corresponding changes throughout.)

Amendment    20

Proposal for a directive

Article 2 – paragraph 1 – point -a (new)

Text proposed by the Commission

Amendment

 

(-a)  “unfair trading practice” means a practice which grossly deviates from good commercial conduct, is contrary to good faith and fair practice and is unilaterally imposed by one trading partner on another;

Amendment    21

Proposal for a directive

Article 2 – paragraph 1 – point a

Text proposed by the Commission

Amendment

(a)  “buyer” means any natural or legal person established in the Union who buys food products by way of trade. The term "buyer" may include a group of such natural and legal persons;

(a)  “buyer” means any natural or legal person which is not a small or medium-sized enterprise, irrespective of its place of establishment, who buys agricultural or food products by way of trade for processing and distribution in the Union, or who provides services in relation to processing and distribution to suppliers. The term "buyer" may include a group of such natural and legal persons;

Amendment    22

Proposal for a directive

Article 2 – paragraph 1 – point d

Text proposed by the Commission

Amendment

(d)  “food products” means products listed in Annex I to the Treaty intended for use as food as well as products not listed in that Annex, but processed from those products for use as food;

(d)  “agricultural and food products” means products listed in Annex I to the Treaty intended for use as food as well as products not listed in that Annex, but processed from those products for use as food, and agricultural products;

Amendment    23

Proposal for a directive

Article 2 – paragraph 1 – point e

Text proposed by the Commission

Amendment

(e)  “perishable food products” means food products that will become unfit for human consumption unless they are stored, treated, packaged or otherwise conserved to prevent them from becoming unfit.

(e)  “perishable agricultural and food products” means fresh agricultural and food products that will become unfit for human consumption or intended use, in particular as a result of rapid decay due to the product’s natural characteristics, unless they are stored, treated, packaged or otherwise conserved to prevent them from becoming unfit;

Amendment    24

Proposal for a directive

Article 2 – paragraph 1 – point e a (new)

Text proposed by the Commission

Amendment

 

(ea)  "economic dependence" refers to the situation where the termination of commercial relations between the buyer and the supplier may jeopardize the continued pursuit of the latter's activity, and where the supplier does not have an alternative solution to the commercial relations in question which can be implemented within a reasonable time. This is presumed to be the case when the buyer accounts for at least 40% of the supplier’s turnover.

Amendment    25

Proposal for a directive

Article 3 – paragraph 1 – introductory part

Text proposed by the Commission

Amendment

1.  Member States shall ensure that the following trading practices are prohibited:

1.  Member States shall ensure that, as a minimum, the following trading practices are prohibited:

Amendment    26

Proposal for a directive

Article 3 – paragraph 1 – point b

Text proposed by the Commission

Amendment

(b)  a buyer cancels orders of perishable food products at such short notice that a supplier cannot reasonably be expected to find an alternative to commercialise or use these products;

(b)  a buyer unilaterally cancels orders of perishable agricultural or food products at such short notice that a supplier cannot reasonably be expected to find an alternative to commercialise or use these products;

Amendment    27

Proposal for a directive

Article 3 – paragraph 1 – point c

Text proposed by the Commission

Amendment

(c)  a buyer unilaterally and retroactively changes the terms of the supply agreement concerning the frequency, timing or volume of the supply or delivery, the quality standards or the prices of the food products;

(c)  a buyer unilaterally and retroactively changes the terms of the supply agreement concerning the frequency, timing or volume of the supply or delivery, the quality standards, the prices or the terms of payment of the agricultural or food products;

Amendment    28

Proposal for a directive

Article 3 – paragraph 1 – point d

Text proposed by the Commission

Amendment

(d)  a supplier pays for the wastage of food products that occurs on the buyer's premises and that is not caused by the negligence or fault of the supplier.

(d)  a supplier pays for the wastage of agricultural or food products that occurs once the product has passed into the buyer's ownership and that is not caused by the negligence or fault of the supplier;

Amendment    29

Proposal for a directive

Article 3 – paragraph 1 – point d a (new)

Text proposed by the Commission

Amendment

 

(da)  the buyer discloses to a third party or otherwise misuses, intentionally or negligently, confidential information shared with it by the supplier, such as the content of the supply contract or trade secrets; this covers use of such information by the buyer to develop its own competing product;

Amendment    30

Proposal for a directive

Article 3 – paragraph 1 – point d b (new)

Text proposed by the Commission

Amendment

 

(db)  a buyer imposes or attempts to impose an unjustified or disproportionate transfer of his economic risk to the supplier.

Amendment    31

Proposal for a directive

Article 3 – paragraph 2 – introductory part

Text proposed by the Commission

Amendment

2.  Member States shall ensure that the following trading practices are prohibited, if they are not agreed in clear and unambiguous terms at the conclusion of the supply agreement:

2.  Member States shall ensure that the following trading practices are prohibited, if they are not agreed in clear, unambiguous and easy to understand terms by the contracting parties at the conclusion of the supply agreement or if they are the result of the economic dependence of the supplier on the buyer, which enabled the buyer to impose those terms:

Amendment    32

Proposal for a directive

Article 3 – paragraph 2 – point b

Text proposed by the Commission

Amendment

(b)  a buyer charges a supplier payment as a condition for the stocking, displaying or listing food products of the supplier;

(b)  a buyer charges a supplier payment as a condition for the stocking, displaying or listing of agricultural or food products of the supplier;

Amendment    33

Proposal for a directive

Article 3 – paragraph 2 – point d a (new)

Text proposed by the Commission

Amendment

 

(da)  the resale of agricultural or food products at a loss, except when it concerns products whose expiry date is two days after the date of sale.

Amendment    34

Proposal for a directive

Article 3 a (new)

Text proposed by the Commission

Amendment

 

Article 3a

 

Contractual relations

 

A supplier may require that any supply of goods or services is subject to a written supply agreement with clear and unambiguous language including all relevant aspects of the trading arrangement and which specifies at least the following terms:

(

(a) the parties to the contract;

 

(b) the object of the contract;

 

(c) the volume, price and quality of the products or services provided;

 

(d) payment;

 

(e) penalties in case of non-execution of the contract;

 

(f) duration and, if applicable, renewal of the contract;

(g) termination causes, including a reasonable notice period;

 

(h) the applicable law.

Amendment    35

Proposal for a directive

Article 4 – paragraph 1 a (new)

Text proposed by the Commission

Amendment

 

Member States shall inform the Commission of the designated enforcement authority.

Amendment    36

Proposal for a directive

Article 5 – paragraph 1

Text proposed by the Commission

Amendment

1.  A supplier shall address a complaint to the enforcement authority of the Member State in which the buyer suspected to have engaged in a prohibited trading practice is established.

1.  Before addressing a complaint, a supplier may make use of established mediation services where available. If this is inappropriate or does not resolve the issue, the supplier shall address a complaint to the enforcement authority of the Member State in which the buyer suspected to have engaged in a prohibited trading practice is established or to the enforcement authority of the Member State in which the supplier is established. In the latter case, the enforcement authority shall forward the complaint to the enforcement authority of the Member State where the buyer suspected to have engaged in a prohibited trading practice is established.

Amendment    37

Proposal for a directive

Article 5 – paragraph 2

Text proposed by the Commission

Amendment

2.  Producer organisations or associations of producer organisations whose member(s) or member(s) of their members consider(s) that they are affected by a prohibited trading practice shall have the right to submit a complaint.

2.  Supplier or producer organisations or associations of supplier or producer organisations under Regulation (EU) 1308/2013 and professional agricultural organisations whose member(s) or member(s) of their members consider(s) that they are affected by a prohibited trading practice, not-for-profit non-governmental and civil society organisations, as well as organisations working with producers or with a proven expertise in trading practices in the agricultural and food supply chain, shall have the right to submit a complaint in the name of the members of the organisation or association and to be properly involved in the procedures, with a view to ascertaining an infringement, and in accordance with the provisions of Article 6.

Amendment    38

Proposal for a directive

Article 5 – paragraph 3

Text proposed by the Commission

Amendment

3.  The enforcement authority shall ensure, if so requested by the complainant, the confidentiality of the identity of the complainant and any other information, in respect of which the complainant considers disclosure harmful to his interests. The complainant shall identify such information in a possible request for confidentiality.

3.  The enforcement authority shall ensure, if so requested by the complainant, the anonymity or confidentiality of the identity of the complainant and any other information, in respect of which the complainant considers disclosure harmful to his interests. The complainant shall identify such information in a possible request for anonymity or confidentiality. The authority shall guarantee the anonymity or confidentiality of the procedure for the benefit of the defendant. This is without prejudice to the procedural rights of the defendant.

Amendment    39

Proposal for a directive

Article 5 – paragraph 4 a (new)

Text proposed by the Commission

Amendment

 

4a.  Where the enforcement authority considers that there are sufficient grounds for acting on a complaint, it shall conduct the investigation within a maximum period of six months. In complex and duly justified cases, this period can be extended by up to six months. The enforcement authority shall inform the complainant of this extension and its reasons for it.

Amendment    40

Proposal for a directive

Article 5 a (new)

Text proposed by the Commission

Amendment

 

Article 5a

 

Mediation or alternative dispute resolution mechanism

 

1.  Without prejudice to the powers and obligations of the enforcement authority laid down in Article 6, Member States may encourage the use of mediation or of an alternative dispute resolution mechanism in case of a dispute between a supplier and a buyer due to an unfair trading practice.

 

2.  The use of mediation or of an alternative dispute resolution mechanism shall be without prejudice to the right of the supplier to submit a complaint, as set out in Article 5.

Amendment    41

Proposal for a directive

Article 6 – paragraph 1 – introductory part

Text proposed by the Commission

Amendment

Member States shall ensure that the enforcement authority is properly equipped and shall confer on it the following powers:

Member States shall ensure that the designated enforcement authority has the necessary resources, including sufficient budgetary and expertise resources, to fulfil its obligations, and shall confer on it the following powers:

Amendment    42

Proposal for a directive

Article 6 – paragraph 1 – point b a (new)

Text proposed by the Commission

Amendment

 

(ba)  to perform unannounced site inspections within the framework of its investigations;

Amendment    43

Proposal for a directive

Article 6 – paragraph 1 – point c

Text proposed by the Commission

Amendment

(c)  to take a decision establishing an infringement of the prohibitions laid down in Article 3 and require the buyer to terminate the prohibited trading practice. The authority may abstain from taking any such decision, if such decision would risk revealing the identity of a complainant or disclosing any other information in respect of which the complainant considers disclosure harmful to his interests, provided that the complainant has identified that information in accordance with Article 5(3);

(c)  to take a decision, within the framework of the applicable national law, establishing an infringement of the prohibitions laid down in Article 3 and require the buyer to terminate the prohibited trading practice. The authority may abstain from taking any such decision, if such decision would risk revealing the identity of a complainant or disclosing any other information in respect of which the complainant considers disclosure harmful to his interests, provided that the complainant has identified that information in accordance with Article 5(3);

Amendment    44

Proposal for a directive

Article 6 – paragraph 1 – point d

Text proposed by the Commission

Amendment

(d)  to impose a pecuniary fine on the author of the infringement. The fine shall be effective, proportionate and dissuasive taking into account the nature, duration and gravity of the infringement;

(d)  to impose a penalties, including pecuniary fines or any other dissuasive penalty on the author of the infringement, in accordance with national legislation. The penalties shall be effective, proportionate to the harm caused and dissuasive taking into account the nature, duration and gravity of the infringement.

 

Repeated infringements by the same operator shall be taken into account by the enforcement authority when determining the sanction to be applied;

Amendment    45

Proposal for a directive

Article 7 – paragraph 1

Text proposed by the Commission

Amendment

1.  Member States shall ensure that enforcement authorities cooperate effectively with each other and provide each other mutual assistance in investigations that have a cross-border dimension.

1.  Member States shall ensure that enforcement authorities cooperate effectively with each other and provide each other mutual assistance in investigations that have a cross-border dimension within the framework of a Union Enforcement Network.

Amendment    46

Proposal for a directive

Article 7 – paragraph 2

Text proposed by the Commission

Amendment

2.  The enforcement authorities shall meet once per year to discuss the application of this Directive on the basis of the annual reports referred to in Article 9(1) and best practices in the area it covers. The Commission shall facilitate those meetings.

2.  The enforcement authorities shall meet once per year to discuss the application of this Directive within the framework of a Union Enforcement Network. The Commission shall facilitate those meetings.

Amendment    47

Proposal for a directive

Article 7 a (new)

Text proposed by the Commission

Amendment

 

Article 7a

 

Composition and tasks of the Union Enforcement Network

 

1.  The Union Enforcement Network (the ‘Network’) shall be composed of one representative from each enforcement authority, two representatives from the Commission, and their respective alternates.

 

The Network shall meet at regular intervals and, where necessary, at the duly justified request of the Commission or a Member State.

 

The Network shall involve all relevant stakeholders in discussion of the application of this Directive, with a view to facilitating dialogue and exchange of good practices and promote a common approach.

 

2  The Network shall have the following tasks:

 

(a)  to discuss the application of this Directive on the basis of the annual reports referred to in Article 9(1);

 

(b)  to facilitate the exchange of information on relevant topics including on the results of investigations referred to in point (a) of Article 6(1)and new cases of unfair trading practices;

 

(c)  to coordinate and facilitate the exchange information and best practices concerning Member States national legislation and experience of enforcement in a coordinated and systematic way in order to improve the common understanding on which specific types of business practice should be considered UTPs and to better address potential cross-border UTPs;

 

(d)  to consider and analyse new forms of unfair trading practices;

 

(e)  to examine any question covering the application of this Directive and adopt guidelines and recommendations in order to encourage consistent application of this Directive, including by creating a common methodology for defining and imposing penalties.

Amendment    48

Proposal for a directive

Article 8 – paragraph 1

Text proposed by the Commission

Amendment

Member States may provide for rules designed to combat unfair trading practices going beyond those set out in Articles 3, 5, 6 and 7, provided that such national rules are compatible with the rules on the functioning of the internal market.

Member States may provide for rules designed to combat unfair trading practices going beyond those set out in Articles 1, 3, 5, 6 and 7, provided that such national rules are compatible with the rules on the functioning of the internal market, including the free movement of goods and services and the freedom of establishment, non-discrimination and access to impartial and independent judicial review.

Amendment    49

Proposal for a directive

Article 8 – paragraph 1 a (new)

Text proposed by the Commission

Amendment

 

Any new national rules going beyond the provisions of this Directive shall be notified to the Commission three months before their application pending consideration by the Commission under the procedure set out in Articles 5 and 6 of Directive (EU) 2015/1535.

Amendment    50

Proposal for a directive

Article 9 – paragraph 1 – subparagraph 1 a (new)

Text proposed by the Commission

Amendment

 

Member State authorities shall engage in discussion with all relevant stakeholders, including consumer organisations, on the functioning of the supply chain in their Member State and the effectiveness of their actions in meeting the objectives of this Directive.

Amendment    51

Proposal for a directive

Article 11 – paragraph 1

Text proposed by the Commission

Amendment

1.  No sooner than three years after the date of application of this Directive, the Commission shall carry out an evaluation of this Directive and present a report on the main findings to the European Parliament, the Council and the European Economic and Social Committee and the Committee of the Regions.

1.  No later than three years after the date of application of this Directive, the Commission shall carry out an evaluation of this Directive and present a report on the main findings to the European Parliament, the Council and the European Economic and Social Committee and the Committee of the Regions. In the framework of that evaluation, the need to review this Directive shall be considered, in particular as to whether or not new forms of unfair trading practice are to be included.

PROCEDURE – COMMITTEE ASKED FOR OPINION

Title

Unfair trading practices in business-to-business relationships in the food supply chain

References

COM(2018)0173 – C8-0139/2018 – 2018/0082(COD)

Committee responsible

       Date announced in plenary

AGRI

2.5.2018

 

 

 

Opinion by

       Date announced in plenary

IMCO

2.5.2018

Associated committees - date announced in plenary

5.7.2018

Rapporteur

       Date appointed

Marc Tarabella

23.4.2018

Discussed in committee

11.7.2018

3.9.2018

 

 

Date adopted

24.9.2018

 

 

 

Result of final vote

+:

–:

0:

21

6

3

Members present for the final vote

John Stuart Agnew, Pascal Arimont, Carlos Coelho, Lara Comi, Anna Maria Corazza Bildt, Daniel Dalton, Nicola Danti, Pascal Durand, Maria Grapini, Liisa Jaakonsaari, Philippe Juvin, Antonio López-Istúriz White, Nosheena Mobarik, Jiří Pospíšil, Christel Schaldemose, Andreas Schwab, Olga Sehnalová, Jasenko Selimovic, Richard Sulík, Róża Gräfin von Thun und Hohenstein, Anneleen Van Bossuyt, Marco Zullo, Igor Šoltes, Ivan Štefanec

Substitutes present for the final vote

Birgit Collin-Langen, Marc Tarabella, Matthijs van Miltenburg

Substitutes under Rule 200(2) present for the final vote

Eric Andrieu, Philippe Loiseau

FINAL VOTE BY ROLL CALL IN COMMITTEE ASKED FOR OPINION

21

+

ECR

Richard Sulík

EFDD

Marco Zullo

ENF

Philippe Loiseau

GUE/NGL

Jiří Maštálka

PPE

Pascal Arimont, Birgit Collin-Langen, Lara Comi, Philippe Juvin, Antonio López-Istúriz White, Jiří Pospíšil, Ivan Štefanec, Róża Gräfin von Thun und Hohenstein

S&D

Eric Andrieu, Nicola Danti, Maria Grapini, Liisa Jaakonsaari, Christel Schaldemose, Olga Sehnalová, Marc Tarabella

VERTS/ALE

Pascal Durand, Igor Šoltes

6

-

ALDE

Matthijs van Miltenburg, Jasenko Selimovic

ECR

Daniel Dalton, Nosheena Mobarik

EFDD

John Stuart Agnew

PPE

Anna Maria Corazza Bildt

3

0

ECR

Anneleen Van Bossuyt

PPE

Carlos Coelho, Andreas Schwab

Key to symbols:

+  :  in favour

-  :  against

0  :  abstention


OPINION of the Committee on Development (26.9.2018)

for the Committee on Agriculture and Rural Development

on the proposal for a directive of the European Parliament and of the Council on unfair trading practices in business-to-business relationships in the food supply chain

(COM(2018)0173 – C8‑0139/2018 – 2018/0082(COD))

Rapporteur for opinion: Linda McAvan

SHORT JUSTIFICATION

The Committee on Development welcomes the Commission’s proposed Directive on unfair trading practices in business-to-business relationships in the food supply chain. Unfair Trading Practices (UTPs) in Europe´s food supply chain contribute to income insecurity, food waste, lower food standards and modern slavery, both in the EU and beyond its borders. This Directive represents a valuable opportunity to tackle UTPs across the Union and ensure that food supply chains work for everyone.

The Committee on Development particularly welcomes the fact that the Directive applies to suppliers irrespective of their location inside or outside the EU. Suppliers to the EU food chain based in non-EU countries may have limited access to information, legal knowledge and funds, making them particularly vulnerable to UTPs. Overcoming this imbalance is key to truly establishing a level playing field which will benefit both EU and non-EU producers, ensuring a level playing field, preventing undercutting and providing a fair return for farmers worldwide.

The European Union has committed itself in its treaties to contribute to sustainable development and to the Sustainable Development Goals (SDGs). Any acceptance of UTPs being applied to non-EU producers by European buyers would contradict the Union’s commitment to Policy Coherence for Development (PCD) and undermine the EU’s policy objectives in its partner countries.

The inclusion of non-EU farmers is fully supported by arguments in the Commission’s impact assessment, which reads in its section 6.3.3 “their non-coverage could result in competitive distortions and trade diversion; buyers would have incentives to source from foreign suppliers who would not be protected by UTP rules”. It is therefore also in the interest of EU suppliers for the Directive to apply uniformly to all suppliers. In this impact assessment, the Commission also warns that “disregarding the international dimension of supply chains may lead to leave relevant practices out of reach of enforcement authorities. The Commission's impact assessment also adds that “discrimination considerations also militate in favour of covering 3rd country suppliers”. Against this context, the proposed amendments below aim at ensuring clear rules apply to both EU and non-EU farmers.

AMENDMENTS

The Committee on Development calls on the Committee on Agriculture and Rural Development, as the committee responsible, to take into account the following amendments:

Amendment    1

Proposal for a directive

Recital 3

Text proposed by the Commission

Amendment

(3)  Different operators are active in the food supply chain at the stages of production, processing, marketing, distribution and retail of food products. The chain is by far the most important channel for bringing food products from “farm to fork”. Those operators trade food products, that is to say primary agricultural products, including fishery and aquaculture products, as listed in Annex I to the Treaty for use as food, and other food products not listed in that Annex but processed from agricultural products for use as food.

(3)  Different operators are active in the agricultural and food supply chain at the stages of production, processing, importing, exporting, marketing, distribution, retail and sale to final consumers of agri-food products. The chain is by far the most important channel for bringing agri-food products from “farm to fork”. Those operators trade agricultural and food products, that is to say primary agricultural products, including fishery and aquaculture products, as listed in Annex I to the Treaty for use as food, and other food products not listed in that Annex but processed from agricultural products for use as food.

Amendment    2

Proposal for a directive

Recital 5

Text proposed by the Commission

Amendment

(5)  The number and size of operators vary across the different stages of the food supply chain. Differences in bargaining power relate to the different levels of concentration of operators and can enable the unfair exercise of bargaining power by using unfair trading practices. Unfair trading practices are in particular harmful for small and medium-sized operators in the food supply chain. Agricultural producers, who supply primary agricultural products, are largely small and medium-sized.

(5)  The number and size of operators vary across the different stages of the agricultural and food supply chain. Differences in bargaining power relate to the different levels of concentration of operators and can enable the unfair exercise of bargaining power by using unfair trading practices. Unfair trading practices are in particular harmful for small and medium-sized operators in the food supply chain, both inside and outside of the Union. Agricultural producers, who supply primary agricultural products, are often small and medium-sized actors in the agricultural and food supply chain.

Justification

Small-scale food producers and workers in developing countries suffer directly or indirectly from unfair trading practices imposed by the most powerful actors in the food supply chain.

Amendment    3

Proposal for a directive

Recital 7

Text proposed by the Commission

Amendment

(7)  A minimum Union standard of protection against certain manifestly unfair trading practices should be introduced to reduce the occurrence of such practices and to contribute to ensuring a fair standard of living for agricultural producers. It should benefit all agricultural producers or any natural or legal person that supplies food products, including producer organisations and associations of producer organisations, provided that all those persons meet the definition of micro, small and medium-sized enterprises set out in the Annex to Commission Recommendation 2003/361/EC12. Those micro, small or medium suppliers are particularly vulnerable to unfair trading practices and least able to weather them without negative effects on their economic viability. As the financial pressure on small and medium-sized enterprises caused by unfair trading practices often passes through the chain and reaches agricultural producers, rules on unfair trading practices should also protect small and medium-sized intermediary suppliers at the stages downstream of primary production. Protection of intermediary suppliers should also avoid unintended consequences (notably in terms of unduly raising prices) of trade diversion away from agricultural producers and their associations, who produce processed products, to non-protected suppliers.

(7)  A minimum Union standard of protection against unfair trading practices should be introduced to reduce the occurrence of such practices, to contribute to ensuring a fair standard of living for agricultural producers inside and outside the Union, to prevent unsafe and unsustainable practices, precarious working conditions, and to reduce food safety risks and food waste along the food supply chain. It should benefit all agricultural producers or any natural or legal person that supplies agricultural and food products, including producer organisations and associations of producer organisations, without raising their administrative burden. Micro, small or medium suppliers are particularly vulnerable to unfair trading practices and least able to weather them without negative effects on their economic viability. As the financial pressure on enterprises caused by unfair trading practices often passes through the chain and reaches agricultural producers, rules on unfair trading practices should also protect intermediary suppliers at the stages downstream of primary production. Protection of intermediary suppliers inside and outside the Union should also avoid unintended consequences (notably in terms of unduly raising prices) of trade diversion away from agricultural producers and their associations, who produce processed products, to non-protected suppliers.

__________________

 

12 OJ L 124, 20.5.2003, p. 36.

 

Justification

Unfair trading practices are a driver of food waste, unsafe and unsustainable practices, precarious working conditions and a threat to the income of small-scale food producers and workers all along the food supply chain both in the European Union and around the world. Further, as protection is to be extended further downstream, it can be extended to suppliers in general.

Amendment    4

Proposal for a directive

Recital 8

Text proposed by the Commission

Amendment

(8)  Suppliers established outside the Union should be able to rely on the Union minimum standard when they sell food products to buyers established in the Union to avoid unintended distorting effects resulting from the protection of suppliers in the Union.

(8)  To ensure the EU meets its Treaty obligation of Policy Coherence for Development and its commitments under the Sustainable Development Goals, suppliers established outside the Union should be able to rely on the Union minimum standard when they sell agricultural and food products to buyers marketing and placing those products on the EU market to avoid unintended distorting effects resulting from the protection of suppliers in the Union.

Justification

The diminishing share of revenues reaching small-scale food producers and workers in developing countries and the working conditions they face as a consequence of unfair trading practices undermine the Union’s development policy and its objectives under the 2030 Agenda for Sustainable Development.

Amendment    5

Proposal for a directive

Recital 8 a (new)

Text proposed by the Commission

Amendment

 

(8a)  The imbalance of power in the supply chain and unfair trading practices of supermarkets come at a high price, this generates and amplifies significant negative social and environmental impacts in most agriculture producing and poor countries, including the denial of basic human rights, gender discrimination, a failure to earn living wages, and long working hours.

Amendment    6

Proposal for a directive

Recital 14

Text proposed by the Commission

Amendment

(14)  Complaints by producer organisations or associations of such organisations can serve to protect the identity of individual members of the organisation who are small and medium-sized suppliers and consider themselves exposed to unfair trading practices. Enforcement authorities of the Member States should therefore be able to accept and act upon complaints by such entities while protecting the procedural rights of the defendant.

(14)  Complaints by producer organisations or associations of such organisations, as well as by organisations working with producers or with a proven expertise on trading practices in food supply chains, including non-governmental and civil society organisations or any other interested party, can serve to protect the identity of individual members of the organisation who are small and medium-sized suppliers and consider themselves exposed to unfair trading practices. Enforcement authorities of the Member States should therefore be able to accept and act upon complaints by such entities while protecting the procedural rights of the defendant.

Justification

The amendment aims at extending to representative associations the right to lodge a complaint on behalf of one or more of their members, as most of the individual suppliers do not have the means to proceed autonomously.

Amendment    7

Proposal for a directive

Article 1 – paragraph 2

Text proposed by the Commission

Amendment

2.  This Directive applies to certain unfair trading practices which occur in relation to the sales of food products by a supplier that is a small and medium-sized enterprise to a buyer that is not a small and medium-sized enterprise.

2.  This Directive applies to certain unfair trading practices which occur in relation to the sales of agricultural and food products by a supplier to a buyer, including transactions between producer organisations or cooperatives and their members.

Justification

Extending the scope to all buyers is essential to prevent UTPs being passed on along the supply chain without any access to complaint mechanisms for affected producers and suppliers (“domino effect”). Including the relations between cooperatives and their members is necessary especially in the dairy sector, where cooperatives often have acquired substantial bargaining power vis-à-vis their members.

Amendment    8

Proposal for a directive

Article 2 – paragraph 1 – point a

Text proposed by the Commission

Amendment

(a)  “buyer” means any natural or legal person established in the Union who buys food products by way of trade. The term "buyer" may include a group of such natural and legal persons;

(a)  “buyer” means any natural or legal person, irrespective of their place of establishment, who buys agricultural or food products by way of trade to place them on the EU market. The term "buyer" may include a group of such natural and legal persons;

Amendment    9

Proposal for a directive

Article 2 – paragraph 1 – point a a (new)

Text proposed by the Commission

Amendment

 

(aa)  "unfair trading practices” means practices that - grossly deviate from good and fair commercial conduct, are contrary to good faith and fair dealing and are unilaterally imposed by buyer to supplier, or - impose or attempt to impose an unjustified and disproportionate transfer of a buyer’s economic risk to the supplier; or a significant imbalance of rights and obligations on the supplier in the commercial relationship before, during or after the contract;

Amendment    10

Proposal for a directive

Article 2 – paragraph 1 – point b a (new)

Text proposed by the Commission

Amendment

 

(ba)  a “supply agreement” is a written agreement between a supplier and a buyer that clearly and transparently covers the relevant elements of the commercial agreement, including the names of the parties, their rights and obligations, price, duration, terms of delivery, terms of payment, as well as the cause, the execution of the contract and the effect of terminating the contract.

Justification

This definition serves to develop and monitor the other elements proposed in the directive. To ensure transparency, it is necessary to have a written contract that allows to monitor and resolve abusive practices that are regulated and forbidden in the directive itself.

Amendment    11

Proposal for a directive

Article 3 – paragraph 1 – introductory part

Text proposed by the Commission

Amendment

1.  Member States shall ensure that the following trading practices are prohibited:

1.  Member States shall ensure that all unfair trading practices are prohibited, including at least the following trading practices:

Amendment    12

Proposal for a directive

Article 3 – paragraph 1 – point b

Text proposed by the Commission

Amendment

(b)  a buyer cancels orders of perishable food products at such short notice that a supplier cannot reasonably be expected to find an alternative to commercialise or use these products;

(b)  a buyer cancels orders of perishable food products at such short notice that a supplier cannot reasonably be expected to find an alternative to commercialise or use these products at the same value;

Amendment    13

Proposal for a directive

Article 3 – paragraph 1 – point b a (new)

Text proposed by the Commission

Amendment

 

(ba)  a buyer uses reverse electronic auctions, or two-stage auctions, to drive down prices; these are not regulated and are such as to fail to ensure the transparency of negotiations, pricing and bidders in the purchasing of agricultural and agri-food products of EU-certified quality and origin as well as non-certified products;

Justification

L'asta elettronica inversa, o al doppio ribasso, utilizzato inizialmente dai grandi gruppi del discount, oggi è una pratica comune di gran parte delle catene distributive. Ai fornitori, le centrali d’acquisto della GDO chiedono tramite e-mail di avanzare un’offerta per la vendita di uno stock di prodotto. Raccolte le proposte, lanciano una seconda asta, nuovamente al ribasso, partendo dal prezzo inferiore spuntato nella prima. In pochi minuti, su un portale web, il fornitore è chiamato a competere selvaggiamente con altri per aggiudicarsi la commessa. Chi si aggiudica la fornitura, spesso si è spinto talmente al limite da doversi rivalere nei confronti dei produttori da cui acquista la merce. A loro volta, questi ultimi si possono trovare in difficoltà nel garantire i diritti fondamentali ai lavoratori agricoli. In tal modo, il meccanismo delle aste al doppio ribasso contribuisce a rendere più difficile l’eradicazione dello sfruttamento e del caporalato, dei lavoratori in nero e dei migranti irregolari, all'interno e all'esterno dell'Unione.

Amendment    14

Proposal for a directive

Article 3 – paragraph 1 – point c

Text proposed by the Commission

Amendment

(c)  a buyer unilaterally and retroactively changes the terms of the supply agreement concerning the frequency, timing or volume of the supply or delivery, the quality standards or the prices of the food products;

(c)  a buyer unilaterally changes the terms of the supply agreement concerning the frequency, timing or volume of the supply or delivery, the quality standards, or the prices of the food products, or the terms of payment;

Amendment    15

Proposal for a directive

Article 3 – paragraph 1 – point d

Text proposed by the Commission

Amendment

(d)  a supplier pays for the wastage of food products that occurs on the buyer's premises and that is not caused by the negligence or fault of the supplier.

(d)  a supplier pays for the wastage of food products that occurs once the product has passed into the buyer's ownership and that is not caused by the negligence or fault of the supplier.

Amendment    16

Proposal for a directive

Article 3 – paragraph 1 – point d a (new)

Text proposed by the Commission

Amendment

 

(da)  a buyer sells an agri-food product below the cost at which it was purchased, to stimulate sales of other products (“loss leader”);

Amendment    17

Proposal for a directive

Article 3 – paragraph 1 – point d b (new)

Text proposed by the Commission

Amendment

 

(db)  a buyer claims, in an inconsistent manner, that products do not meet cosmetic specifications, in order to cancel or reduce the terms of the supply agreement;

Amendment    18

Proposal for a directive

Article 3 – paragraph 1 – point d c (new)

Text proposed by the Commission

Amendment

 

(dc)  a buyer uses overly strict ‘minimum life on receipt criteria’ in order to reject a previously agreed order, or to reject an order that, for reasons unrelated to the supplier, has not been processed quickly enough;

Amendment    19

Proposal for a directive

Article 3 – paragraph 1 – point d d (new)

Text proposed by the Commission

Amendment

 

(dd)  a buyer requires suppliers to bear the financial costs of inaccurate forecasting provided by the buyer in order for the supplier to plan their production to meet forecasted orders.

Amendment    20

Proposal for a directive

Article 5 – paragraph 1

Text proposed by the Commission

Amendment

1.  A supplier shall address a complaint to the enforcement authority of the Member State in which the buyer suspected to have engaged in a prohibited trading practice is established.

1.  A supplier shall address a complaint to the enforcement authority of the Member State in which the buyer suspected to have engaged in a prohibited trading practice is established, without bearing the relevant administrative and procedural costs.

Amendment    21

Proposal for a directive

Article 5 – paragraph 1 a (new)

Text proposed by the Commission

Amendment

 

1a.  A supplier established outside the EU shall address a complaint to the enforcement authority of any Member State. Upon receipt of the complaint, the enforcement authority shall forward it to the enforcement authority (if different) of the Member State in which the buyer suspected to have engaged in a prohibited trading practice is established.

Justification

The directive also applies to suppliers outside the EU, and so this amendment provides them with their mechanism to lodge a complaint. This is essential to avoid discrimination between EU- and non-EU suppliers and to avoid distortion of competition and trade diversion. This is important in contributing to the treaty obligation of Policy Coherence for Development and EU commitments under the Sustainable Development Goals.

Amendment    22

Proposal for a directive

Article 5 – paragraph 1 b (new)

Text proposed by the Commission

Amendment

 

1b.  Where the buyer is established outside of the Union, the supplier shall address a complaint to the enforcement authority of the Member State in which it is established. For cases where the supplier is established outside of the Union, the supplier can address a complaint to any designated enforcement authority.

Amendment    23

Proposal for a directive

Article 5 – paragraph 2

Text proposed by the Commission

Amendment

2.  Producer organisations or associations of producer organisations whose member(s) or member(s) of their members consider(s) that they are affected by a prohibited trading practice shall have the right to submit a complaint.

2.  Producer organisations or associations of producer organisations inside and outside the Union whose member(s) or member(s) of their members consider(s) that they are affected by a prohibited trading practice, as well as organisations working with producers or with a proven expertise on trading practices in food supply chains, including non-governmental organisations and civil society organisations or other organisations acting on behalf of producers or any other interested party, shall have the right to submit a complaint.

Justification

To overcome the fear factor and ensure effective access of vulnerable actors, it is essential to extend the right to submit a complaint to organisations that work to promote fairness in supply chains and support vulnerable actors such as small-scale food producers and women. This is particularly the case in countries with a low level of governance and a high level of inequality.

Amendment    24

Proposal for a directive

Article 5 – paragraph 4 a (new)

Text proposed by the Commission

Amendment

4a.  The Commission shall draw up a multilingual guide, which shall be available on its website, explaining how to draft a complaint and what type of information must be provided to the respective enforcement authorities across the Union to decide whether a formal investigation can be opened.

Justification

SMEs often do not have the expertise and know-how to defend their rights. This is particularly true for SMEs in the developing world. Hence, the Commission’s advice and support is indispensable for SMEs to protect and enforce their rights.

Amendment    25

Proposal for a directive

Article 6 a (new)

Text proposed by the Commission

Amendment

 

Article 6a

 

The Commission is empowered to adopt delegated acts setting out criteria and a methodology to be taken into account by enforcement authorities when imposing pecuniary fines, having regard to at least the following elements: the turnover of the infringer, the benefits accrued by the infringer from the unfair trading practice, the number and status of the victims of the infringement, the repeated use of unfair trading practices by a buyer.

Amendment    26

Proposal for a directive

Article 7 – paragraph 3 a (new)

Text proposed by the Commission

Amendment

 

3a.  The Commission shall ensure that DG AGRI has a functional mailbox available on its website to support small and medium-sized enterprises (SMEs) both inside and outside of the Union to protect and enforce their rights against unfair trading practices1a, by providing information about the procedures. All relevant information shall be provided in all EU languages.

 

______________

 

1a http://ec.europa.eu/trade/policy/accessing-markets/trade-defence/actions-against-imports-into-the-eu/

Amendment    27

Proposal for a directive

Article 7 – paragraph 3 b (new)

Text proposed by the Commission

Amendment

3b.  The Commission and the enforcement authorities of the Member States shall apply the terms of this Directive in close cooperation. Further modalities for cooperation within the network, including arrangements for information, consultation and allocation of cases of cross-border unfair trading practices, shall be laid down and revised by the Commission, in close cooperation with the Member States.

Justification

EU-level coordination is crucial to ensure that unfair trading practices involving actors from several Member States and actors based outside the EU are treated equally, and that enforcement authorities are able to share information, allocate cases of cross-border unfair trading practices and coordinate their approach. Additionally, a network provides a point of contact for non-EU suppliers unsure of which national enforcement authority to complain to.

Amendment    28

Proposal for a directive

Article 9 – paragraph 1

Text proposed by the Commission

Amendment

1.  By 15 March of each year, Member States shall send to the Commission a report on unfair trading practices in business-to-business relationships in the food supply chain. That report shall contain, in particular, all relevant data on the application and enforcement of the rules under this Directive in the Member State concerned in the previous year.

1.  By 15 March of each year, Member States shall send to the Commission a report on unfair trading practices in business-to-business relationships in the food supply chain. That report shall contain, in particular, all relevant data on the application and enforcement of the rules under this Directive in the Member State concerned in the previous year, with a particular attention to cross-border unfair trading practices and their direct and indirect impacts on suppliers, including suppliers based outside the Union. Member States shall also report on the impact of the implementation of the current Directive on reducing food waste, increasing food safety and promoting sustainable practices in the food supply chain.

Amendment    29

Proposal for a directive

Article 11 – paragraph 1

Text proposed by the Commission

Amendment

1.  No sooner than three years after the date of application of this Directive, the Commission shall carry out an evaluation of this Directive and present a report on the main findings to the European Parliament, the Council and the European Economic and Social Committee and the Committee of the Regions.

1.  Three years after the date of application of this Directive, the Commission shall carry out an evaluation of this Directive and present a report on the main findings to the European Parliament, the Council and the European Economic and Social Committee and the Committee of the Regions. The report shall pay particular attention to the effectiveness of the Directive in protecting the most vulnerable actors against unfair trading practices throughout the food supply chain, both inside and outside the Union. It shall also evaluate the contribution of the Directive to reducing food waste, increasing food quality and promoting sustainable practices in the food supply chain. The report shall consider the need to review the Directive, in particular to include new forms of UTPs, and to make use of data on input costs and price transmission through the agricultural food supply chain, to establish criteria for determining fair prices within a supply agreement. On the basis of this report, the Commission may present appropriate legislative proposals.

PROCEDURE – COMMITTEE ASKED FOR OPINION

Title

Unfair trading practices in business-to-business relationships in the food supply chain

References

COM(2018)0173 – C8-0139/2018 – 2018/0082(COD)

Committee responsible

       Date announced in plenary

AGRI

2.5.2018

 

 

 

Opinion by

       Date announced in plenary

DEVE

13.9.2018

Rapporteur

       Date appointed

Linda McAvan

11.7.2018

Discussed in committee

29.8.2018

 

 

 

Date adopted

24.9.2018

 

 

 

Result of final vote

+:

–:

0:

11

1

5

Members present for the final vote

Ignazio Corrao, Doru-Claudian Frunzulică, Charles Goerens, Enrique Guerrero Salom, Maria Heubuch, Arne Lietz, Norbert Neuser, Vincent Peillon, Eleni Theocharous, Mirja Vehkaperä, Željana Zovko

Substitutes present for the final vote

Cécile Kashetu Kyenge, Florent Marcellesi, Paul Rübig, Adam Szejnfeld

Substitutes under Rule 200(2) present for the final vote

Asim Ademov, Andrea Bocskor

FINAL VOTE BY ROLL CALL IN COMMITTEE ASKED FOR OPINION

11

+

ALDE

Charles Goerens, Mirja Vehkaperä

EFDD

Ignazio Corrao

S&D

Doru‑Claudian Frunzulică, Enrique Guerrero Salom, Cécile Kashetu Kyenge, Arne Lietz, Norbert Neuser, Vincent Peillon

VERTS/ALE

Maria Heubuch, Florent Marcellesi

1

-

ECR

Eleni Theocharous

5

0

PPE

Asim Ademov, Andrea Bocskor, Paul Rübig, Adam Szejnfeld, Željana Zovko

Key to symbols:

+  :  in favour

-  :  against

0  :  abstention


OPINION of the Committee on the Environment, Public Health and Food Safety (17.9.2018)

for the Committee on Agriculture and Rural Development

on the proposal for a directive of the European Parliament and of the Council on unfair trading practices in business-to-business relationships in the food supply chain

(COM(2018)0173 – C8‑0139/2018 – 2018/0082(COD))

Rapporteur for opinion: Pilar Ayuso

SHORT JUSTIFICATION

Farmers in the European Union are in the weakest position in the food chain due to their very low bargaining power. The Common Agricultural Policy (CAP) has introduced in recent years certain new provisions to improve their market position, by promoting greater concentration of supply through producer organisations.  

Although there has been a political shift in a more positive direction, there is still room for legislative improvement, and much remains to be done to reach an optimal balance between the different actors. A high degree of fragmentation in agri-food supply, the fact that the CAP’s support tools have a market-orientated approach, and increasing price volatility are all factors that make it is crucial to guarantee an appropriate level playing field between suppliers and buyers.  

It is important to stress that for farmers unfair practices can lead to economic losses, offsetting the benefits they obtain from CAP subsidies, which are increasingly conditioned to environmental sustainability. There are numerous types of unfair practices, but some, such as sales at loss, are very recurrent and the victims have little margin to manoeuver to react against them due to legal gaps and uncertainties. 

It is time for the European Union to react to this situation and to try to create a legal framework, which would help achieve a better balance in the food chain. Unfair practices are damaging the profitability of many farm businesses in the European Union and Member States cannot simply close their eyes to this situation. The so-called Supply Chain Initiative adopted some years ago delivered a positive set of principles of good practices, but it is unfortunately insufficient to efficiently combat unfair practices as long as it is not accompanied by penalties for non-compliance, and there is no possibility to lodge confidential complaints. 

We have to congratulate the European Commission for taking the first step by introducing EU legislation in this domain and proposing minimum provisions for all Member States. Nevertheless, the proposal should be improved in some aspects to avoid resulting in a mere political gesture.  

First of all, it is very important that the EU legal text does not water down the progress already made in some Member States to tackle unfair practices. Allowing national administrations to go beyond the minimum requirements established in the Directive is a key point for the rapporteur. Some countries have put in place regulations that have considerably ameliorated the relations between all actors in the value chain. 

Regarding the scope of the proposal, it is too restrictive as it only covers abusive practices by big buyers towards small and medium supply enterprises. The rapporteur is of the opinion that EU legal protection should be enlarged to cover the whole spectrum of unfair situations. 

The Commission text does not tackle sales below cost, and this is precisely the main subject of the complaints expressed by farmers in relation to certain capricious promotion practices of perishable products that are undertaken by big buyers as appealing actions to attract customers. 

The rapporteur strongly believes that without written contracts, EU legislation would never be effective. Although the CAP legislation does not yet provide compulsory written contracts at EU level, the new Directive should at least reflect some progress made in the framework of the agricultural Common Market Organisation, which allows Member States to make written contracts compulsory in their territory. The rapporteur encourages all Member States to introduce compulsory contracts following the example of certain countries, like Spain.  

In order to guarantee a level playing field across the European Union, Member States should have uniform criteria to calculate the sanctions for unfair practices, without undermining national competences. The rapporteur proposes a formulation, which is similar to others that are already to be found in existing EU legislative texts.   

Transparency in the market is also an important element that should be taken into account in EU legislation when dealing with unfair commercial practices. Following the path of certain national provisions already adopted, the rapporteur proposes that all Member States put in place national agri-food chain observatories to monitor market prices and detect irregularities. Such a tool would be very useful to assess the implementation of the legislation in view of future revisions and to exchange national data. 

The possibility to protect the confidentiality of a producer who lodges a complaint is a key element of the Commission proposal which would allow complaints to be made without the “fear factor” coming into play. The rapporteur would like to reinforce the Commission’s text to make that right of confidentiality automatic. 

Amongst other relevant modifications to the Commission’s proposal, the rapporteur also would like to stress the need to cover within the scope of the Directive buyers based in third countries who buy EU products to be sold on the Member States’ markets. The aim is to avoid a situation where some buyers avoid EU provisions by simply moving their place of establishment outside the EU.

AMENDMENTS

The Committee on the Environment, Public Health and Food Safety calls on the Committee on Agriculture and Rural Development, as the committee responsible, to take into account the following amendments:

Amendment    1

Proposal for a directive

Recital 3

Text proposed by the Commission

Amendment

(3)  Different operators are active in the food supply chain at the stages of production, processing, marketing, distribution and retail of food products. The chain is by far the most important channel for bringing food products from “farm to fork”. Those operators trade food products, that is to say primary agricultural products, including fishery and aquaculture products, as listed in Annex I to the Treaty for use as food, and other food products not listed in that Annex but processed from agricultural products for use as food.

(3)  Different operators are active in the agri-food supply chain at the stages of production, processing, marketing, distribution and retail of agricultural or food products. The chain is by far the most important channel for delivering products. Those operators trade agricultural or food products, that is to say primary agricultural products, including fishery and aquaculture products, as listed in Annex I to the Treaty for use as food, other food products not listed in that Annex but processed from agricultural products for use as food and agricultural products.

 

(The change from "food supply chain" to "agri-food supply chain" applies throughout the text. Adopting it will necessitate corresponding changes throughout.)

Amendment    2

Proposal for a directive

Recital 5

Text proposed by the Commission

Amendment

(5)  The number and size of operators vary across the different stages of the food supply chain. Differences in bargaining power relate to the different levels of concentration of operators and can enable the unfair exercise of bargaining power by using unfair trading practices. Unfair trading practices are in particular harmful for small and medium-sized operators in the food supply chain. Agricultural producers, who supply primary agricultural products, are largely small and medium-sized.

(5)  The number and size of operators vary across the different stages of the agri-food supply chain. Differences in bargaining power relate to the different levels of concentration of operators and can enable the unfair exercise of bargaining power by using unfair trading practices. Unfair trading practices are in particular harmful for small and medium-sized and mid-cap operators in the agri-food supply chain both inside and outside the Union. Nevertheless, all operators, regardless of their economic dimension, are vulnerable to unfair trading practices.

Justification

For the first part of the amendment: see justification under amendment 7. The second part prepares the ground for enlarging the scope to all operators regardless of the economic dimension. Small-scale food producers and workers in developing countries suffer directly or indirectly from unfair trading practices imposed by most powerful actors in the food supply chain.

Amendment    3

Proposal for a directive

Recital 5 a (new)

Text proposed by the Commission

Amendment

 

(5a)  Agricultural producers supplying primary agricultural products, are largely small and medium-sized. However, the limited set of criteria that is used to define small and medium-sized enterprises is often exceeded in agricultural production, for example when seasonal workers are employed. Therefore, it is appropriate to enlarge the scope of this Directive to include mid-cap companies. Mid-cap companies (“mid-caps”) are enterprises or producer organisations, cooperatives or associations of producer organisations with a medium-sized structure and with a high capital ratio with a staff headcount of up to 3000 employees. Furthermore, mid-caps can be family-run enterprises. Small and medium sized enterprises and mid-caps have little market power in comparison to the big players in the agricultural or food supply chain.

Amendment    4

Proposal for a directive

Recital 7

Text proposed by the Commission

Amendment

(7)  A minimum Union standard of protection against certain manifestly unfair trading practices should be introduced to reduce the occurrence of such practices and to contribute to ensuring a fair standard of living for agricultural producers. It should benefit all agricultural producers or any natural or legal person that supplies food products, including producer organisations and associations of producer organisations, provided that all those persons meet the definition of micro, small and medium-sized enterprises set out in the Annex to Commission Recommendation 2003/361/EC12. Those micro, small or medium suppliers are particularly vulnerable to unfair trading practices and least able to weather them without negative effects on their economic viability. As the financial pressure on small and medium-sized enterprises caused by unfair trading practices often passes through the chain and reaches agricultural producers, rules on unfair trading practices should also protect small and medium-sized intermediary suppliers at the stages downstream of primary production. Protection of intermediary suppliers should also avoid unintended consequences (notably in terms of unduly raising prices) of trade diversion away from agricultural producers and their associations, who produce processed products, to non-protected suppliers.

(7)  A minimum Union standard of protection against certain manifestly unfair trading practices should be introduced to reduce the occurrence of such practices and to contribute to ensuring a fair standard of living for agricultural producers. It should benefit all agricultural producers or any natural or legal person that supplies food products, including producer organisations and associations of producer organisations. As the financial pressure on enterprises caused by unfair trading practices often passes through the chain and reaches agricultural producers, rules on unfair trading practices should also protect intermediary suppliers at the stages downstream of primary production. Protection of intermediary suppliers should also avoid unintended consequences (notably in terms of unduly raising prices) of trade diversion away from agricultural producers and their associations, who produce processed products, to non-protected suppliers.

__________________

 

12 OJ L 124, 20.5.2003, p. 36.

 

Justification

This amendment prepares the ground for enlarging the scope to all operators regardless of the economic dimension.

Amendment    5

Proposal for a directive

Recital 8

Text proposed by the Commission

Amendment

(8)  Suppliers established outside the Union should be able to rely on the Union minimum standard when they sell food products to buyers established in the Union to avoid unintended distorting effects resulting from the protection of suppliers in the Union.

(8)  Suppliers established outside the Union should be able to rely on the Union minimum standard when they sell food products to buyers established in the Union to avoid unintended distorting effects resulting from the protection of suppliers in the Union. Union policy also needs to be coherent with regard to the Union’s commitments under the Sustainable Development Goals.

Justification

The diminishing share of revenues reaching small scale food producers and workers in developing countries and the working conditions they face as a consequence of unfair trading practices undermine the Union's development policy and its objectives under the 2030 Agenda for Sustainable Development.

Amendment    6

Proposal for a directive

Recital 9

Text proposed by the Commission

Amendment

(9)  The relevant rules should apply to business conduct by larger, that is to say non-small and medium-sized, operators in the food supply chain as they are the ones who normally possess stronger relative bargaining power when trading with small and medium-sized suppliers.

(9)  The relevant rules should apply to all business operators in the agri- food supply chain.

Justification

This amendment prepares the ground for enlarging the scope to all operators regardless of the economic dimension.

Amendment    7

Proposal for a directive

Recital 10

Text proposed by the Commission

Amendment

(10)  As a majority of Member States already have national rules on unfair trading practices, albeit diverging, it is appropriate to use the tool of a Directive to introduce a minimum protection standard under Union law. This should enable Member States to integrate the relevant rules into their national legal order in such a way as to bring about a cohesive regime. Member States should not be precluded from adopting and applying on their territory stricter national laws protecting small and medium-sized suppliers and buyers against unfair trading practices occurring in business-to-business relationships in the food supply chain, subject to the limits of Union law applicable to the functioning of the internal market.

(10)  As a majority of Member States already have national rules on unfair trading practices, albeit diverging, it is appropriate to use the tool of a Directive to introduce a minimum protection standard under Union law. This should enable Member States to integrate the relevant rules into their national legal order in such a way as to bring about a cohesive regime. Member States should not be precluded from adopting and applying on their territory stricter national laws protecting all suppliers and buyers regardless of their economic dimension against unfair trading practices occurring in business-to-business relationships in the agri-food supply chain, subject to the limits of Union law applicable to the functioning of the internal market.

Justification

This amendment prepares the ground for enlarging the scope to all operators regardless of the economic dimension.

Amendment    8

Proposal for a directive

Recital 11

Text proposed by the Commission

Amendment

(11)  As unfair trading practices may occur at any stage of the sale of a food product, i.e. before, during or after a sales transaction, Member States should ensure that the provisions of this Directive should apply to such practices whenever they occur.

(11)  As unfair trading practices may occur at any stage of the sale of an agricultural or food product, i.e. before, during or after a sales transaction, or in connection with the provision of services connected to the sales process by the buyer to the supplier, Member States should ensure that the provisions of this Directive should apply to such practices whenever they occur.

Amendment    9

Proposal for a directive

Recital 12

Text proposed by the Commission

Amendment

(12)  When deciding whether an individual trading practice is considered unfair it is important to reduce the risk of limiting the use of fair and efficiency-creating agreements agreed between parties. As a result, it is appropriate to distinguish practices that are foreseen in clear and unambiguous terms in supply agreements between parties from practices that occur after the transaction has started without being agreed in advance in clear and unambiguous terms, so that only unilateral and retrospective changes to those relevant terms of the supply agreement are prohibited. However, certain trading practices are considered as unfair by their very nature and should not be subject to the parties’ contractual freedom to deviate from them.

(12)  When deciding whether an individual trading practice is considered unfair it is important to reduce the risk of limiting the use of fair and efficiency-creating agreements agreed between parties. As a result, it is appropriate to distinguish practices that are foreseen in clear and unambiguous terms in supply agreements between parties from practices that occur after the transaction has started without being agreed in advance in clear and unambiguous terms, so that only unilateral and retrospective changes to those relevant terms of the supply agreement are prohibited. However, certain trading practices are considered as unfair by their very nature and should not be subject to the parties’ contractual freedom to deviate from them. In addition, suppliers should not be put under duress when agreeing to a supply agreement.

Amendment    10

Proposal for a directive

Recital 13

Text proposed by the Commission

Amendment

(13)  In order to ensure an effective enforcement of the prohibitions laid down in this Directive, Member States should designate an authority that is entrusted with their enforcement. The authority should be able to act either on its own initiative or by way of complaints by parties affected by unfair trading practices in the food supply chain. Where a complainant requests that his identity remain confidential because of fear of retaliation, the enforcement authorities of the Member States should honour such a request.

(13)  In order to ensure an effective enforcement of the prohibitions laid down in this Directive, Member States should designate an authority that is entrusted with their enforcement. The authority should be able to act either on its own initiative or by way of complaints by parties affected by unfair trading practices in the agri-food supply chain. Whenever a complaint is logged the enforcement authority of the Member States should ensure that the complainant’s identity remains anonymous.

Justification

This amendment guarantees anonymity of complaints.

Amendment    11

Proposal for a directive

Recital 13 a (new)

Text proposed by the Commission

Amendment

 

(13a)  In order to ensure an effective enforcement of the prohibition of unfair trading practices, the designated enforcement authorities should dispose of all necessary resources, staff and expertise.

Amendment    12

Proposal for a directive

Recital 14

Text proposed by the Commission

Amendment

(14)  Complaints by producer organisations or associations of such organisations can serve to protect the identity of individual members of the organisation who are small and medium-sized suppliers and consider themselves exposed to unfair trading practices. Enforcement authorities of the Member States should therefore be able to accept and act upon complaints by such entities while protecting the procedural rights of the defendant.

(14)  Complaints by organisations of producers or suppliers or associations of such organisations can serve to protect the identity of individual members of the organisation or of family farms, who are small and medium-sized suppliers and consider themselves exposed to unfair trading practices. Enforcement authorities of the Member States should therefore be able to accept and act upon complaints by such entities while protecting the procedural rights of the defendant.

Amendment    13

Proposal for a directive

Recital 15

Text proposed by the Commission

Amendment

(15)  The enforcement authorities of the Member States should have the necessary powers that enable them to effectively gather any factual information by way of information requests. They should have the power to order the termination of a prohibited practice, where applicable. The existence of a deterrent, such as the power to impose fines and the publication of investigation results, can encourage behavioural change and pre-litigation solutions between the parties and should therefore be part of the powers of the enforcement authorities. The Commission and the enforcement authorities of the Member States should cooperate closely so as to ensure a common approach with respect to the application of the rules set out in this Directive. In particular, the enforcement authorities should provide each other mutual assistance, for example by sharing information and assisting in investigations which have a cross-border dimension.

(15)  The enforcement authorities of the Member States should have the necessary powers that enable them to effectively gather any factual information by way of information requests. For the effective implementation of this Directive, enforcement authorities should have the power to prohibit unfair trading practice, impose fines and sanctions and publish the results of their investigations. Those powers can act as a deterrent and encourage behavioural change and pre-litigation solutions between the parties and should therefore be part of the powers of the enforcement authorities. Enforcement authorities should take repeated infringements of this Directive into account. The Commission and the enforcement authorities of the Member States should cooperate closely so as to ensure a common approach with respect to the application of the rules set out in this Directive, particularly with regard to fines and sanctions. In particular, the enforcement authorities should provide each other mutual assistance, for example by sharing information and assisting in investigations which have a cross-border dimension.

Amendment    14

Proposal for a directive

Recital 15 a (new)

Text proposed by the Commission

Amendment

 

(15a)  The enforcement authorities should apply dissuasive and proportionate penalties on those who infringe the rules laid down in this Directive. Repeated infringements of the rules by a commercial entity should be taken into account when determining the penalty.

Amendment    15

Proposal for a directive

Recital 19

Text proposed by the Commission

Amendment

(19)  In the interest of an effective implementation of the policy in respect of unfair trading practices in business-to-business relationships in the food supply chain, the Commission should review the application of this Directive and submit a report to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions. The review should also pay particular attention to whether protection of small and medium-sized buyers of food products in the supply chain – in addition to the protection of small and medium sized suppliers – in the future would be justified,

(19)  In the interest of an effective implementation of the policy in respect of unfair trading practices in business-to-business relationships in the food supply chain, the Commission should review the application of this Directive and submit a report to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions. The review should also pay particular attention to a possible enlargement of the lists of unfair trading practices lqid down in this Directive and whether protection of small and medium-sized buyers of food products in the supply chain – in addition to the protection of small and medium sized suppliers – in the future would be justified,

Amendment    16

Proposal for a directive

Article 1 – paragraph 2

Text proposed by the Commission

Amendment

2.  This Directive applies to certain unfair trading practices which occur in relation to the sales of food products by a supplier that is a small and medium-sized enterprise to a buyer that is not a small and medium-sized enterprise.

2.  This Directive applies to certain unfair trading practices which occur in relation to the sales of food products by a supplier to a buyer.

Justification

It is essential that the Directive covers all operators in the food supply chain to prevent UTPs being passed along the supply chain and the shifting of business to circumvent rules banning UTPs. The change from “small and medium sized operators” to “all operators” should apply through the text.

Amendment    17

Proposal for a directive

Article 2 – paragraph 1 – point a

Text proposed by the Commission

Amendment

(a)  “buyer” means any natural or legal person established in the Union who buys food products by way of trade. The term "buyer" may include a group of such natural and legal persons;

(a)  "buyer" means any natural or legal person, irrespective of that person’s place of establishment, who buys agricultural and food products by way of trade, for processing, distribution or retail, and/or provides services related to those products, in the Union; the term "buyer" may include a group of such natural and legal persons;

Justification

This amendment aims at including within the scope of the Directive those operators that, though established outside the EU, buy and sell products in the EU market. This would avoid that a buyer could escape form the scope of this Directive by simply moving its place of establishment outside the EU.

Amendment    18

Proposal for a directive

Article 2 – paragraph 1 – point b

Text proposed by the Commission

Amendment

(b)  “supplier” means any agricultural producer or any natural or legal person, irrespective of their place of establishment, who sells food products. The term “supplier” may include a group of such agricultural producers or such natural and legal persons, including producer organisations and associations of producer organisations;

(b)  “supplier” means any agricultural producer, food processor or any natural or legal person, established in the Union, who sells food products; the term “supplier” may include a group of such agricultural producers or such natural and legal persons, including producer organisations, associations of producer organisations or agricultural cooperatives;

Justification

Only suppliers established in the EU should be protected by Member States as European suppliers do not find any equal treatment in third countries. Cooperatives have their own legal identity and should be covered by this article.

Amendment    19

Proposal for a directive

Article 2 – paragraph 1 – point c

Text proposed by the Commission

Amendment

(c)  “small and medium-sized enterprise” means an enterprise within the meaning of the definition of micro, small and medium-sized enterprises set out in the Annex to Commission Recommendation 2003/361/EC14 ;

deleted

__________________

 

14 Commission Recommendation 2003/361/EC of 6 May 2003 concerning the definition of micro, small and medium-sized enterprises (OJ L 124, 20.5/2003, p. 36).

 

Justification

In accordance with the amendments enlarging the scope of the Directive, it is not necessary to define what an SME is.

Amendment    20

Proposal for a directive

Article 2 – paragraph 1 – point c a (new)

Text proposed by the Commission

Amendment

 

(ca)  "economic dependence" means a relationship in which the buyer accounts for at least 30 % of the supplier’s turnover;

Amendment    21

Proposal for a directive

Article 2 – paragraph 1 – point d

Text proposed by the Commission

Amendment

(d)  “food products” means products listed in Annex I to the Treaty intended for use as food as well as products not listed in that Annex, but processed from those products for use as food;

(d)  “agricultural or food products” means products listed in Annex I to the Treaty intended for use as food, products not listed in that Annex, but processed from those products for use as food, and agricultural products;

Amendment    22

Proposal for a directive

Article 2 – paragraph 1 – point e

Text proposed by the Commission

Amendment

(e)  “perishable food products” means food products that will become unfit for human consumption unless they are stored, treated, packaged or otherwise conserved to prevent them from becoming unfit.

(e)  “perishable food products” means agricultural and food products which are naturally suitable for commercialisation and consumption for a period of up to thirty days or that require regulated temperature or packaging conditions for storage, and / or commercialisation and / or transportation;

Justification

The aim of this amendment is to provide clarification.

Amendment    23

Proposal for a directive

Article 2 – paragraph 1 – point e a (new)

Text proposed by the Commission

Amendment

 

(ea)  “non-perishable products” means products other than perishable food products.

Amendment    24

Proposal for a directive

Article 2 – paragraph 1 – point e b (new)

Text proposed by the Commission

Amendment

 

(eb)  "unfair trading practice" means any practice that deviates from good commercial conduct, is contrary to good faith and fair dealing and is unilaterally imposed by one trading partner on another.

Justification

It is essential to introduce a definition of unfair trading practices and a general ban on these practices to prevent powerful actors in the supply chain from engineering new forms of UTPs to circumvent the Directive.

Amendment    25

Proposal for a directive

Article 3 – paragraph 1 – introductory part

Text proposed by the Commission

Amendment

1.  Member States shall ensure that the following trading practices are prohibited:

1.  Member States shall ensure that at least the following unfair trading practices are prohibited:

Amendment    26

Proposal for a directive

Article 3 – paragraph 1 – point a – introductory part

Text proposed by the Commission

Amendment

(a)  a buyer pays a supplier for perishable food products later than 30 calendar days after the receipt of the supplier’s invoice or later than 30 calendar days after the date of delivery of the perishable food products, whichever is the later. This prohibition shall be without prejudice:

(a)  a buyer pays a supplier for perishable agricultural or food products later than 30 calendar days after the receipt of the supplier’s invoice or later than 30 calendar days after the date of delivery of the perishable agricultural or food products, whichever is the later. This prohibition shall be without prejudice:

Amendment    27

Proposal for a directive

Article 3 – paragraph 1 – point a a (new)

Text proposed by the Commission

Amendment

 

(aa)  a buyer pays a supplier for non-perishable products later than 60 calendar days after the receipt of the supplier’s invoice or later than 60 calendar days after the date of delivery of the perishable food products, whichever is the later. This prohibition is without prejudice:

 

- to the consequences of late payments and remedies as laid down in Directive 2011/7/EU;

 

- to the option of a buyer and a supplier to agree on a value-sharing clause within the meaning of Article 172 of Regulation (EU) No 1308/2013.

Justification

This amendment enlarges the Directive´s coverage to non-perishable products without prejudice of Directive 2011/7/EU on late payments and the "value sharing" clause introduced in the CMO Regulation.

Amendment    28

Proposal for a directive

Article 3 – paragraph 1 – point b

Text proposed by the Commission

Amendment

(b)  a buyer cancels orders of perishable food products at such short notice that a supplier cannot reasonably be expected to find an alternative to commercialise or use these products;

(b)  a buyer cancels orders of perishable agricultural or food products at such short notice that a supplier cannot reasonably be expected to find an alternative to commercialise or use these products;

Amendment    29

Proposal for a directive

Article 3 – paragraph 1 – point c

Text proposed by the Commission

Amendment

(c)  a buyer unilaterally and retroactively changes the terms of the supply agreement concerning the frequency, timing or volume of the supply or delivery, the quality standards or the prices of the food products;

(c)  a buyer unilaterally and retroactively changes the terms of the supply agreement concerning the frequency, timing or volume of the supply or delivery, the quality standards or the prices of the agricultural and food products, or the terms of payment;

Amendment    30

Proposal for a directive

Article 3 – paragraph 1 – point c a (new)

Text proposed by the Commission

Amendment

 

(ca) a buyer sells agriculture or food products below cost;

Justification

It is the most repeated vindication of the agricultural sector, which should be covered by this Directive.

Amendment    31

Proposal for a directive

Article 3 – paragraph 1 – point d

Text proposed by the Commission

Amendment

(d)  a supplier pays for the wastage of food products that occurs on the buyer's premises and that is not caused by the negligence or fault of the supplier.

(d)  a supplier pays for the wastage of agricultural or food products that occurs on the buyer's premises and that is not caused by the negligence or fault of the supplier;

Amendment    32

Proposal for a directive

Article 3 – paragraph 1 – point d a (new)

Text proposed by the Commission

Amendment

 

(da) a buyer unilaterally terminates the supply agreement;

Amendment    33

Proposal for a directive

Article 3 – paragraph 1 – point d b (new)

Text proposed by the Commission

Amendment

 

(db) a buyer informs the supplier of any differentiated treatment, which the buyer gives or intends to give, in relation to the competing brands owned or managed by him; the differentiated treatment includes at least any specific measures or behaviour by the buyer relating to the following: (a) listing (b) store-space and (c) commercial margins;

Justification

This UTP draws from article 6 of the proposed Regulation on online intermediaries. As explained before, fair competition between independent brands and retailers' own brands is critical to foster innovation and competition on the merits. If vertically integrated retailers are to grant trading advantages to their own brands, at least suppliers of independent brands should be aware of their existence and scope in order to adapt their competitive strategies to this uneven playing field.

Amendment    34

Proposal for a directive

Article 3 – paragraph 1 – point d c (new)

Text proposed by the Commission

Amendment

 

(dc)  a buyer reduces, in a non-transparent manner, the quantity and/or value of agricultural or food products of a standard quality;

Amendment    35

Proposal for a directive

Article 3 – paragraph 1 – point d d (new)

Text proposed by the Commission

Amendment

 

(dd)  a buyer threatens to use or executes commercial retaliation against the supplier if the latter exercises its contractual and legal rights, including the filing of complaints and the cooperation with the national enforcement authorities;

Justification

This UTP is necessary to protect suppliers from commercial retaliation (e.g., partial reduction of quantities ordered or termination of the supply contract) when they take legal action to enforce their contractual rights and the rights upheld in this Directive.

Amendment    36

Proposal for a directive

Article 3 – paragraph 1 – point d e (new)

Text proposed by the Commission

Amendment

 

(de)  a buyer makes business cooperation and the conclusion of a supply agreement conditional upon compensation in goods and services;

Amendment    37

Proposal for a directive

Article 3 – paragraph 1 – point d f (new)

Text proposed by the Commission

Amendment

 

(df)  a buyer requires suppliers to bear the financial costs of inaccurate forecasting provided by the buyer;

Amendment    38

Proposal for a directive

Article 3 – paragraph 1 – point d g (new)

Text proposed by the Commission

Amendment

 

(dg)  a buyer reduces purchases under existing contracts partially or totally in order to impose an amendment to an existing contract or to negotiate a new contract;

Justification

This UTP draws from the Commission's Green paper on unfair trading practices in the business-to-business food and non-food supply chain in Europe (Sections 5.6) and the SCI. Often buyers do not even have to terminate the supply agreement to obtain unfair advantages, it suffices to reduce the volume procured.

Amendment    39

Proposal for a directive

Article 3 – paragraph 1 – point d h (new)

Text proposed by the Commission

Amendment

 

(dh)  a buyer applies communication or promotional activities and commercial policies which are, or risk being, detrimental to the image of products bearing a geographical indication under Regulation (EU) No 1151/20121a, Regulation (EC) No 110/2008 1b or Regulation (EU) No 251/2014 1c

 

__________________

 

1a Regulation (EU) No 1151/2012 of the European Parliament and of the Council of 21 November 2012 on quality schemes for agricultural products and foodstuffs (OJ L 343, 14.12.2012, p. 1).

 

1b Regulation (EC) No 110/2008 of the European Parliament and of the Council of 15 January 2008 on the definition, description, presentation, labelling and the protection of geographical indications of spirit drinks and repealing Council Regulation (EEC) No 1576/89 (OJ L 39, 13.2.2008, p. 16).

 

1c Regulation (EU) No 251/2014 of the European Parliament and of the Council of 26 February 2014 on the definition, description, presentation, labelling and the protection of geographical indications of aromatised wine products and repealing Council Regulation (EEC) No 1601/91 (OJ L 84, 20.3.2014, p. 14).

Justification

Geographical Indications often undergo a wide range of practices which have the effect of devaluating their image such as below cost sells, auctions in which the lowest bidder wins, reckless promotions, etc.

Amendment    40

Proposal for a directive

Article 3 – paragraph 1 – point d i (new)

Text proposed by the Commission

Amendment

 

(di)  a buyer provides a blank promissory note for the transferred raw materials and the supplier is not obliged to issue insurance for the transferred but as yet unpaid for agricultural or food products;

Amendment    41

Proposal for a directive

Article 3 – paragraph 1 – point d j (new)

Text proposed by the Commission

Amendment

 

(dj)  a buyer charges a fee for the inclusion of the supplier's agricultural or food products;

Amendment    42

Proposal for a directive

Article 3 – paragraph 1 – point d k (new)

Text proposed by the Commission

Amendment

 

(dk)  a buyer returns the supplied but unsold products, charges for the disposal of such products, charges the supplier for unused products that have expired – except in the case of products that are first supplied to the trader – as well as for products which the supplier had specifically requested be sold and which the supplier had been warned in writing may reach their expiry date owing to poor turnover;

Amendment    43

Proposal for a directive

Article 3 – paragraph 1 – point d l (new)

Text proposed by the Commission

Amendment

 

(dl)  a buyer charges a fee for the delivery of the agricultural or food products outside the agreed delivery point;

Amendment    44

Proposal for a directive

Article 3 – paragraph 1 – point d m (new)

Text proposed by the Commission

Amendment

 

(dm)  a buyer charges a fee for storage and handling after delivery of the agricultural or food product;

Amendment    45

Proposal for a directive

Article 3 – paragraph 1 – point d n (new)

Text proposed by the Commission

Amendment

 

(dn)  a buyer charges a fee for reduced turnover, sales or supplier's margin due to lower sales of a particular agricultural or food product;

Amendment    46

Proposal for a directive

Article 3 – paragraph 1 – point d o (new)

Text proposed by the Commission

Amendment

 

(do)  a buyer sells agricultural or food products to the final consumer at a price lower than any purchase price in the supply chain of the given product that is subject to VAT, except in cases of products that are approaching their expiry date, withdrawal of the agricultural or food product from the range or full clearance due to the closure of a sales facility;

Amendment    47

Proposal for a directive

Article 3 – paragraph 1 – point d p (new)

Text proposed by the Commission

Amendment

 

(dp)  a buyer makes the conclusion of a supply agreement and business cooperation conditional upon imposing the obligation to participate in discounts or sales by reducing the purchase price at the expense of the supplier;

Amendment    48

Proposal for a directive

Article 3 – paragraph 2 – introductory part

Text proposed by the Commission

Amendment

2.  Member States shall ensure that the following trading practices are prohibited, if they are not agreed in clear and unambiguous terms at the conclusion of the supply agreement:

2.  Member States shall ensure that the following trading practices are prohibited, if they are not agreed in clear and unambiguous terms at the conclusion of the supply agreement or if they are the result of economic dependence of the supplier on the buyer, which enables the buyer to impose those terms:

Justification

The amendment aims at clarifying that the practices listed in Art. 3(2) should also be prohibited in the case the agreement between the two parties results from the economic dependence of the supplier.

Amendment    49

Proposal for a directive

Article 3 – paragraph 2 – point a

Text proposed by the Commission

Amendment

(a)  a buyer returns unsold food products to a supplier;

(a)  a buyer returns unsold agricultural and food products to a supplier;

Amendment    50

Proposal for a directive

Article 3 – paragraph 2 – point a a (new)

Text proposed by the Commission

Amendment

 

(aa)  a buyer refuses to accept or take over the contracted quantity of agricultural or food products in accordance with the agreed purchase schedule, i.e. at the maturity of the obligation for the supplier to deliver, except in justified cases stipulated in the supply agreement;

Amendment    51

Proposal for a directive

Article 3 – paragraph 2 – point a b (new)

Text proposed by the Commission

Amendment

 

(ab)  the buyer removes products from the list of contracted products that the supplier delivers to the customer or significantly reduces an order of a particular agricultural or food product without prior written notice provided within the time period specified in the contract, or within a time limit which may not be shorter than 30 days in cases where the deadline is not stipulated in the contract;

Amendment    52

Proposal for a directive

Article 3 – paragraph 2 – point b

Text proposed by the Commission

Amendment

(b)  a buyer charges a supplier payment as a condition for the stocking, displaying or listing food products of the supplier;

(b)  a buyer charges a supplier a fee as a condition for stocking, displaying and/or accommodating a supplier’s agricultural or food products on the shelves of the buyer’s premises, unless the supplier explicitly requires the purchaser to stock, display and/or accommodate its product on a specific shelf at the buyer’s point of sale;

Amendment    53

Proposal for a directive

Article 3 – paragraph 2 – point b a (new)

Text proposed by the Commission

Amendment

 

(ba)  a buyer shares with third parties, or misuses, intentionally or by negligence, confidential information related to the supply contract, including trade secrets shared with the buyer by the supplier;

Justification

This practice was in the Commission's Green paper on UTPs.

Amendment    54

Proposal for a directive

Article 3 – paragraph 2 – point b b (new)

Text proposed by the Commission

Amendment

 

(bb)  a buyer retaliates or threatens to retaliate commercially against the supplier, by means of practices such as delisting of products, stopping data sharing services, excessive promotions, delayed payments, unilateral deductions and/or blocking of promotions, in order to obtain better conditions under existing contracts or when negotiating a new contract;

Amendment    55

Proposal for a directive

Article 3 – paragraph 2 – point b c (new)

Text proposed by the Commission

Amendment

 

(bc)  a buyer imposes or attempts to impose an unjustified or disproportionate transfer of its economic risks to the supplier;

Amendment    56

Proposal for a directive

Article 3 – paragraph 2 – point c

Text proposed by the Commission

Amendment

(c)  a supplier pays for the promotion of food products sold by the buyer. Prior to a promotion and if that promotion is initiated by the buyer, the buyer shall specify the period of the promotion and the expected quantity of the food products to be ordered;

(c)  a supplier pays for the promotion of agricultural or food products sold by the buyer. Prior to a promotion and if that promotion is initiated by the buyer, the buyer shall specify the period of the promotion and the expected quantity of the agricultural or food products to be ordered;

Amendment    57

Proposal for a directive

Article 3 – paragraph 2 – point d

Text proposed by the Commission

Amendment

(d)  a supplier pays for the marketing of food products by the buyer.

(d)  a supplier pays for the marketing of agricultural or food products by the buyer.

Amendment    58

Proposal for a directive

Article 3 – paragraph 2 – point d a (new)

Text proposed by the Commission

Amendment

 

(da)  a buyer transfers the transport and storage costs to the supplier or the producer.

Amendment    59

Proposal for a directive

Article 3 – paragraph 4 a (new)

Text proposed by the Commission

Amendment

 

4a.  Member States shall ensure that contractual terms or practices that rule out interest for late payment are prohibited under the provisions of Article 7 of Directive 2011/7/EU.

Amendment    60

Proposal for a directive

Article 3 a (new)

Text proposed by the Commission

Amendment

 

Article 3a

 

Contractual relations

 

1.   A supplier may require that any delivery of their agricultural and food products to a buyer be the subject of a written contract between the parties and/or the subject of a written offer for a contract from the first purchaser.

 

2.   Any contract or offer for a contract referred to in paragraph 1 shall:

 

(a)   be made in advance of the delivery;

 

(b)   be made in writing; and

 

(c)   include, in particular, the following elements:

 

(i)   the price payable for the delivery, which shall:

 

-   be static and be set out in the contract, and/or

 

-   be calculated by combining various factors set out in the contract, which may include market indicators reflecting changes in market conditions, the quantities delivered and the quality or composition of the agricultural products delivered,

 

(ii)   the quantity and quality of the products concerned which may or must be delivered and the timing of such deliveries,

 

(iii)   the duration of the contract, which may include either a definite duration or an indefinite duration with termination clauses,

 

(iv)   details regarding payment periods and procedures,

 

(v)   arrangements for collecting or delivering the agricultural products, and

 

(vi)   rules applicable in the event of force majeure.

 

3.   Paragraphs 1 and 2 shall be without prejudice to Articles 148 and 168 of Regulation (EU) No 1308/2013.

 

4.   Member States may identify, share and promote best practices concerning long-term contractualisation, aimed at strengthening the bargaining position of producers within the agricultural and food supply chain.

Justification

The amendment, in line with the Regulation on the Single CMO, gives the possibility to all suppliers (not only farmers) to ask for written contracts, enabling also Member States to encourage an increased contractualisation between different actors in the agricultural and food supply chain.

Amendment    61

Proposal for a directive

Article 3 b (new)

Text proposed by the Commission

Amendment

 

Article 3b

 

Overarching unfair trading practices

 

Member States shall ensure that the following overarching unfair trading practices are prohibited:

 

a)   imposing or attempting to impose an unjustified or disproportionate transfer of buyers' economic risks to the supplier;

 

b)   imposing or attempting to impose to the supplier a significant unbalance of rights and obligations in the commercial relationship before, during or after the contract.

Justification

1) This overarching UTP draws from the definition of UTP in the Explanatory Memorandum and Commission's Green paper on unfair trading practices in the business-to-business food and non-food supply chain in Europe (section 5.4) and the SCI;2) This UTP draws from article L442-6 of the French Code de Commerce. A significant unbalance in a commercial relationship may arise, for example, when the contract provides ambiguous terms that afford the buyer leeway to execute or amend the contract.

Amendment    62

Proposal for a directive

Article 4 – paragraph 1

Text proposed by the Commission

Amendment

Each Member State shall designate a public authority to enforce the prohibitions laid down in Article 3 at national level ("enforcement authority").

Each Member State shall designate a single public authority to enforce the prohibitions laid down in Article 3 at national level ("enforcement authority").

Justification

It is necessary to establish a single public control authority as the multiplication of enforcement authorities in Member States could cause a lack of homogeneity and reduce the effectiveness of controls.

Amendment    63

Proposal for a directive

Article 4 – paragraph 1 a (new)

Text proposed by the Commission

Amendment

 

Member States shall ensure that the designated enforcement authority has the necessary resources, including sufficient budget and expertise, to fulfil their obligations.

Amendment    64

Proposal for a directive

Article 4 a (new)

Text proposed by the Commission

Amendment

 

Article 4a

 

Competent Authority

 

1.   The enforcement authority of the Member State in which a buyer is suspected to have engaged in a prohibited trading practice is established, shall be competent to investigate unfair trading practices committed by the buyer.

 

2.   If a supplier delivers its products to a recipient related to the buyer but established in a Member State which does not correspond to the place of establishment of the buyer suspected to have engaged in a prohibited trading practice, the enforcement authority of that Member State shall be competent to investigate unfair trading practices committed by the buyer. The recipient of the products shall be considered as jointly liable for any infringements committed.

 

3.   Where the buyer is established outside the Union, the enforcement authority of the Member State where the supplier is established shall be competent to investigate unfair trading practices committed against the supplier.

 

4.   The competent authority shall also be competent to investigate unfair trading practices related to the provision of services linked to the supply agreement. The buyer and, as the case may be, the third-party recipient of the goods shall be considered as jointly liable for any infringements committed by a third-party provider of the related services.

Justification

This is about jurisdictional rules and paragraph 4 makes sure that service agreements fall under control of the authorities and non-EU operators do not de facto avoid EU-jurisdiction by refusing to submit to decisions adopted by the competent authorities (if they do not operate in the member State where the authority is based, any fine or remedy adopted by the authority may go unenforced). This new paragraph makes sure that services follow the supply contract in terms of jurisdiction and joint liability, therefore, the service agreements of international alliances will be investigated by the national authorities of the EU alliance members and the latter will be held liable together with the alliance itself (otherwise, a Swiss-based alliance of EU buyers, can simply flout all the resolutions of the EU competent authorities as long as it holds no assets in the territory of the competent authority).

Amendment    65

Proposal for a directive

Article 5 – paragraph 1

Text proposed by the Commission

Amendment

1.  A supplier shall address a complaint to the enforcement authority of the Member State in which the buyer suspected to have engaged in a prohibited trading practice is established.

1.  A supplier shall address a complaint to the enforcement authority of the Member State in which the buyer suspected to have engaged in a prohibited trading practice is established, or to the enforcement authority of the Member State in which the supplier is established. In the latter case, the enforcement authority shall forward the complaint to the enforcement authority of the Member State where the buyer is suspected to have engaged in a prohibited trading practice is established.

Amendment    66

Proposal for a directive

Article 5 – paragraph 1 – subparagraph 1 a (new)

Text proposed by the Commission

Amendment

 

A supplier may submit a complaint to the enforcement authority of the Member State in which the supplier is established. The enforcement authority of that Member State shall forward the complaint to the enforcement authority of the Member State in which the buyer suspected to have engaged in a prohibited trading practice is established.

Justification

Some SMEs could not have the capacity to address their complaints in countries different from the one in which they are established. Therefore, they should have the possibility to ask for the intervention of the enforcement authority of their own country, as interlocutor in the procurement process.

Amendment    67

Proposal for a directive

Article 5 – paragraph 2

Text proposed by the Commission

Amendment

2.  Producer organisations or associations of producer organisations whose member(s) or member(s) of their members consider(s) that they are affected by a prohibited trading practice shall have the right to submit a complaint.

2.  Supplier organisations or associations of supplier organisations whose member(s) or member(s) of their members consider(s) that they are affected by a prohibited trading practice shall have the right to submit a complaint and to be party in the proceedings.

Justification

To be coherent with the terms used in the Directive, this provision should refer to supplier associations. Associations filing complaints should be accepted as interveners in the proceedings. In Spain, associations filing complaints under the food chain law do not enjoy that legal status and, as a consequence, neither the individual victims of the UTPs (fear factor) nor the associations representing them have access to the proceedings.

Amendment    68

Proposal for a directive

Article 5 – paragraph 3

Text proposed by the Commission

Amendment

3.  The enforcement authority shall ensure, if so requested by the complainant, the confidentiality of the identity of the complainant and any other information, in respect of which the complainant considers disclosure harmful to his interests. The complainant shall identify such information in a possible request for confidentiality.

3.  The enforcement authority shall ensure the confidentiality of the identity of the complainant, as well as other information in respect of which the complainant considers disclosure harmful to his interests. The complainant shall identify such information.

Justification

This amendment ensures that complaints are anonymous in order to eliminate the "fear factor".

Amendment    69

Proposal for a directive

Article 5 – paragraph 4

Text proposed by the Commission

Amendment

4.  Where the enforcement authority considers that there are insufficient grounds for acting on a complaint, it shall inform the complainant about the reasons.

4.  Where the enforcement authority considers that there are insufficient grounds for acting on a complaint, it shall inform the complainant without delay about the reasons.

Amendment    70

Proposal for a directive

Article 5 – paragraph 4 a (new)

Text proposed by the Commission

Amendment

 

4a.  The enforcement authority shall establish a reasonable time period to initiate and conduct investigations and, upon completion, take a reasoned decision and inform the parties of its decision.

Justification

This amendment ensures a timely period for initiating, conducting, completing investigations and communicating the parties about the decision taken by the enforcement authority.

Amendment    71

Proposal for a directive

Article 6 – paragraph 1 – point a

Text proposed by the Commission

Amendment

(a)  to initiate and conduct investigations on its own initiative or based on a complaint;

(a)  to initiate and conduct investigations on its own initiative or based on a complaint, including anonymous complaints or complaints from whistleblowers;

Amendment    72

Proposal for a directive

Article 6 – paragraph 1 – point b

Text proposed by the Commission

Amendment

(b)  to require buyers and suppliers to provide all necessary information in order to carry out investigations on the prohibited trading practices;

(b)  to require buyers and suppliers to provide all necessary information in order to carry out investigations on the prohibited trading practices that occurred in the commercial relationship and to assess whether they are prohibited or deviate from good trading practices;

Amendment    73

Proposal for a directive

Article 6 – paragraph 1 – point d

Text proposed by the Commission

Amendment

(d)  to impose a pecuniary fine on the author of the infringement. The fine shall be effective, proportionate and dissuasive taking into account the nature, duration and gravity of the infringement;

(d)  to impose a pecuniary fine and if necessary other dissuasive sanctions on the natural or legal person found to have made an infringement of this Directive, in accordance with national law. The fine and, if necessary, the sanction shall be effective, proportionate and dissuasive taking into account the nature, duration and gravity of the infringement as well as any previous and repeated infringements of this Directive;

Amendment    74

Proposal for a directive

Article 6 – paragraph 1 – point e

Text proposed by the Commission

Amendment

(e)  to publish its decisions relating to points (c) and (d);

(e)  to publish its decisions relating to points (c) and (d), including the value of the fine and, where possible, to protect the confidentiality of the complainant if it so requests;

Amendment    75

Proposal for a directive

Article 6 – paragraph 1 – point f

Text proposed by the Commission

Amendment

(f)  to inform buyers and suppliers about its activities, by way of annual reports, which shall inter alia describe the number of complaints received and the investigations initiated and closed by it. For each investigation, the report shall contain a summary description of the matter and the outcome of the investigation.

(f)  to inform buyers and suppliers about its activities, by way of annual reports, which shall inter alia describe the number of complaints received and the investigations initiated and closed by it. For each investigation, the report shall contain a summary description of the matter, the conclusions of the investigation and information on the outcome of the procedure as well as the decision taken and a typology of the identified unfair trade practices.

Amendment    76

Proposal for a directive

Article 6 a (new)

Text proposed by the Commission

Amendment

 

Article 6a

 

Mediation or alternative dispute resolution mechanism

 

1.   Without prejudice to the powers and obligations of the enforcement authority laid down in Article 6, Member States may encourage the use of mediation or of an alternative dispute resolution mechanism in case of a dispute between a supplier and a buyer due to an unfair trading practices as defined in Article 2.

 

2.   The use of mediation or of an alternative dispute resolution mechanism shall be without prejudice to the right of the supplier to submit a complaint, as set out in Article 5.

Amendment    77

Proposal for a directive

Article 6 b (new)

Text proposed by the Commission

Amendment

 

Article 6b

 

Penalties

 

1.   Member States shall impose penalties for the infringements of this Directive. The minimum amount of the penalty imposed shall be at least 2% of the global buyer’s turnover according to their last financial statement report.

 

2.   In case a buyer repeats the same unfair trading practice, the amount of the penalty imposed shall be equivalent to the one referred to in paragraph 1 increased by 20% for every repeated infringement.

Justification

The aim of this new article is the standardisation of the criteria to define penalties at the EU level, following the example of other EU provisions, without prejudice of national prerogatives regarding the decision of the value of the sanction.

Amendment    78

Proposal for a directive

Article 7 – paragraph 3 a (new)

Text proposed by the Commission

Amendment

 

3a.  The Commission and the enforcement authorities of the Member States shall form together a network of public authorities applying the terms of the Directive in close cooperation. Further modalities for the cooperation within the network, including up arrangements for information, consultation and allocation of cases of cross-border unfair trading practices, shall be laid down and revised by the Commission, in close cooperation with the Member States.

Justification

EU-level coordination is crucial to ensure that unfair trading practices involving actors from several Member States and actors based outside the EU are treated equally, and that enforcement authorities are able to share information, allocate cases of cross-border unfair trading practices and coordinate their approach. This proposal, establishing an EU-level network, draws on the experience of the European Competition Network (Regulation 1/2003).

Amendment    79

Proposal for a directive

Article 7 a (new)

Text proposed by the Commission

Amendment

 

Article 7a

 

National Observatories

 

1.   Member States shall create national observatories for the monitoring of the functioning of the agri-food chain.

 

2.   National observatories shall at least:

 

(a)   monitor and evaluate unfair commercial practices, through the realisation of surveys and market analysis;

 

(b)  report any infringement detected to the enforcement authority;

 

(c)   elaborate reports and recommendations; and

 

(d)   assist the enforcement authorities in providing information in order to comply with Articles 7 and 9.

Justification

Market transparency is a key element to guarantee a good functioning of the value chain. This tool would also be very useful to assess the implementation of the legislation in view of future revisions of the EU legislation and to facilitate the exchange of national data.

Amendment    80

Proposal for a directive

Article 8 – paragraph 1

Text proposed by the Commission

Amendment

Member States may provide for rules designed to combat unfair trading practices going beyond those set out in Articles 3, 5, 6 and 7, provided that such national rules are compatible with the rules on the functioning of the internal market.

To ensure a higher level of protection, Member States may provide for rules designed to combat unfair trading practices, which are stricter than those set out in this Directive, provided that such national rules are compatible with the rules on the functioning of the internal market.

Justification

The aim of the amendment is to secure farmers position in the food chain, to respect subsidiarity in the implementation and give Member States possibility to go beyond in all the parts of the directive.

Amendment    81

Proposal for a directive

Article 9 – paragraph 1

Text proposed by the Commission

Amendment

1.  By 15 March of each year, Member States shall send to the Commission a report on unfair trading practices in business-to-business relationships in the food supply chain. That report shall contain, in particular, all relevant data on the application and enforcement of the rules under this Directive in the Member State concerned in the previous year.

1.  By 15 March of each year, Member States shall send to the Commission a report on the application of the Directive, with particular emphasis on unfair trading practices in business-to-business relationships in the food supply chain. That report shall contain, in particular, all relevant data on the application and enforcement of the rules under this Directive in the Member State concerned in the previous year.

Amendment    82

Proposal for a directive

Article 11 – paragraph 1

Text proposed by the Commission

Amendment

1.  No sooner than three years after the date of application of this Directive, the Commission shall carry out an evaluation of this Directive and present a report on the main findings to the European Parliament, the Council and the European Economic and Social Committee and the Committee of the Regions.

1.  No later than three years after the date of application of this Directive, the Commission shall carry out an evaluation of this Directive and present a report on the main findings to the European Parliament, the Council and the European Economic and Social Committee and the Committee of the Regions. In the framework of that evaluation, the need for additional unfair trading practices shall be examined.

Amendment    83

Proposal for a directive

Article 11 – paragraph 1 a (new)

Text proposed by the Commission

Amendment

 

1 a.  The evaluation shall assess, but not be limited to:

 

(a)   the effectiveness in protecting the weakest actors in the agricultural and food supply chain against unfair trading practices;

 

(b)   the effectiveness of cooperation between competent enforcement authorities;

 

(c)   whether the appointment of a European regulator is required to enforce and monitor Union legislation in the food supply chain.

PROCEDURE – COMMITTEE ASKED FOR OPINION

Title

Unfair trading practices in business-to-business relationships in the food supply chain

References

COM(2018)0173 – C8-0139/2018 – 2018/0082(COD)

Committee responsible

       Date announced in plenary

AGRI

2.5.2018

 

 

 

Opinion by

       Date announced in plenary

ENVI

31.5.2018

Rapporteur

       Date appointed

Pilar Ayuso

29.5.2018

Discussed in committee

29.8.2018

 

 

 

Date adopted

10.9.2018

 

 

 

Result of final vote

+:

–:

0:

55

5

5

Members present for the final vote

Margrete Auken, Pilar Ayuso, Ivo Belet, Biljana Borzan, Lynn Boylan, Paul Brannen, Soledad Cabezón Ruiz, Nessa Childers, Birgit Collin-Langen, Miriam Dalli, Angélique Delahaye, Mark Demesmaeker, Stefan Eck, Bas Eickhout, José Inácio Faria, Karl-Heinz Florenz, Elisabetta Gardini, Gerben-Jan Gerbrandy, Jens Gieseke, Julie Girling, Sylvie Goddyn, Françoise Grossetête, Andrzej Grzyb, György Hölvényi, Anneli Jäätteenmäki, Karin Kadenbach, Kateřina Konečná, Urszula Krupa, Giovanni La Via, Peter Liese, Lukas Mandl, Jiří Maštálka, Susanne Melior, Rory Palmer, Piernicola Pedicini, Bolesław G. Piecha, John Procter, Frédérique Ries, Michèle Rivasi, Daciana Octavia Sârbu, Annie Schreijer-Pierik, Davor Škrlec, Nils Torvalds, Adina-Ioana Vălean, Jadwiga Wiśniewska, Damiano Zoffoli

Substitutes present for the final vote

Dominique Bilde, Michel Dantin, Jørn Dohrmann, Eleonora Evi, Eleonora Forenza, Christophe Hansen, Rebecca Harms, Martin Häusling, Jan Huitema, Norbert Lins, Carolina Punset, Christel Schaldemose, Mihai Ţurcanu

Substitutes under Rule 200(2) present for the final vote

Jacques Colombier, Karine Gloanec Maurin, John Howarth, Alex Mayer, Christine Revault d’Allonnes Bonnefoy, Kathleen Van Brempt

FINAL VOTE BY ROLL CALL IN COMMITTEE ASKED FOR OPINION

55

+

ALDE

Anneli Jäätteenmäki, Carolina Punset

ECR:

Mark Demesmaeker, Jørn Dohrmann, Urszula Krupa, Bolesław G. Piecha, Jadwiga Wiśniewska

EFDD:

Evi Eleonora, Piernicola Pedicini

ENF :

Dominique Bilde, Jacques Colombier, Sylvie Goddyn

PPE:

Pilar Ayuso, Ivo Belet, Birgit Collin‑Langen, Michel Dantin, Angélique Delahaye, José Inácio Faria, Karl‑Heinz Florenz, ELisabetta Gardini, Jens Gieseke, Julie Girling, Françoise Grossetête, Andrzej Grzyb, Christophe Hansen, György Hölvényi, Giovanni La Via, Peter Liese, Norbert Lins, Lukas Mandl, Annie Schreijer‑Pierik, Mihai Ţurcanu, Adina‑Ioana Vălean

S&D:

Biljana Borzan, Paul Brannen, Soledad Cabezón Ruiz, Nessa Childers, Miriam Dalli, Karine Gloanec Maurin, John Howarth, Karin Kadenbach, Alex Mayer, Susanne Melior, Rory Palmer, Christine Revault d'Allonnes Bonnefoy, Christel Schaldemose, Daciana Octavia Sârbu, Kathleen Van Brempt, Damiano Zoffoli

VERTS/ALE:

Margrete Auken, Bas Eickhout, Rebecca Harms, Martin Häusling, Michèle Rivasi, Davor Škrlec

5

-

ALDE

Gerben-Jan Gerbrandy, Jan Huitema, Frédérique Ries, Nils Torvalds

ECR

John Procter

5

0

GUE/NGL:

Lynn Boylan, Stefan Eck, Eleonora Forenza, Kateřina Konečná, Jiří Maštálka

Key to symbols:

+  :  in favour

-  :  against

0  :  abstention


PROCEDURE – COMMITTEE RESPONSIBLE

Title

Unfair trading practices in business-to-business relationships in the food supply chain

References

COM(2018)0173 – C8-0139/2018 – 2018/0082(COD)

Date submitted to Parliament

12.4.2018

 

 

 

Committee responsible

       Date announced in plenary

AGRI

2.5.2018

 

 

 

Committees asked for opinions

       Date announced in plenary

DEVE

13.9.2018

ENVI

31.5.2018

IMCO

2.5.2018

 

Associated committees

       Date announced in plenary

IMCO

5.7.2018

 

 

 

Rapporteurs

       Date appointed

Paolo De Castro

17.4.2018

 

 

 

Discussed in committee

12.4.2018

 

 

 

Date adopted

1.10.2018

 

 

 

Result of final vote

+:

–:

0:

38

4

2

Members present for the final vote

John Stuart Agnew, Clara Eugenia Aguilera García, Eric Andrieu, Richard Ashworth, Daniel Buda, Nicola Caputo, Matt Carthy, Jacques Colombier, Michel Dantin, Paolo De Castro, Albert Deß, Diane Dodds, Jørn Dohrmann, Herbert Dorfmann, Norbert Erdős, Luke Ming Flanagan, Karine Gloanec Maurin, Esther Herranz García, Jan Huitema, Martin Häusling, Peter Jahr, Ivan Jakovčić, Jarosław Kalinowski, Zbigniew Kuźmiuk, Norbert Lins, Philippe Loiseau, Mairead McGuinness, Nuno Melo, Giulia Moi, Ulrike Müller, James Nicholson, Maria Noichl, Marijana Petir, Bronis Ropė, Maria Lidia Senra Rodríguez, Ricardo Serrão Santos, Czesław Adam Siekierski, Tibor Szanyi, Marco Zullo

Substitutes present for the final vote

Franc Bogovič, Michela Giuffrida, Elsi Katainen, Manolis Kefalogiannis, Gabriel Mato, Anthea McIntyre, Momchil Nekov, Molly Scott Cato, Vladimir Urutchev, Thomas Waitz

Substitutes under Rule 200(2) present for the final vote

Renata Briano

Date tabled

10.10.2018

FINAL VOTE BY ROLL CALL IN COMMITTEE RESPONSIBLE

38

+

ALDE

Jan Huitema, Ivan Jakovčić, Elsi Katainen, Ulrike Müller

ECR

Zbigniew Kuźmiuk, Anthea McIntyre, James Nicholson

EFDD

Giulia Moi, Marco Zullo

ENF

Jacques Colombier, Philippe Loiseau

GUE/NGL

Luke Ming Flanagan

NI

Diane Dodds

PPE

Richard Ashworth, Daniel Buda, Michel Dantin, Herbert Dorfmann, Norbert Erdős, Esther Herranz García, Peter Jahr, Jarosław Kalinowski, Norbert Lins, Mairead McGuinness, Nuno Melo, Marijana Petir, Czesław Adam Siekierski

S&D

Clara Eugenia Aguilera García, Eric Andrieu, Renata Briano, Nicola Caputo, Paolo De Castro, Michela Giuffrida, Karine Gloanec Maurin, Momchil Nekov, Maria Noichl, Tibor Szanyi

VERTS/ALE

Bronis Ropė, Molly Scott Cato

4

-

ECR

Jørn Dohrmann

EFDD

John Stuart Agnew

GUE/NGL

Matt Carthy

PPE

Albert Deß

2

0

GUE/NGL

Maria Lidia Senra Rodríguez

VERTS/ALE

Martin Häusling

Key to symbols:

+  :  in favour

-  :  against

0  :  abstention

Last updated: 24 October 2018Legal notice