40 Amendments of Tibor SZANYI related to 2018/0082(COD)
Amendment 158 #
Proposal for a directive
Recital 15
Recital 15
(15) The enforcement authorities of the Member States should have the necessary powers that enable them to effectively gaperform their any factual information by way of information requestduties. 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 finespenalties, 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. The Commission and the enforcement authoriIt 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 of theconcerning Member States should cooperate closelnational 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. In particular, the enforcement authorities should provide each other mutual assistance, for example by sharing information and assisting in investigations which have aThe 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 dimensionUTPs.
Amendment 168 #
Proposal for a directive
Recital 16
Recital 16
(16) To facilitate effective enforcement, the Commission should help organise meetings between the enforcement authorities of the Member Statesing 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 188 #
Proposal for a directive
Article 1 – paragraph 2
Article 1 – paragraph 2
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 enterpriseto all types of operator along the food supply chain, in any of the following circumstances: a) One of the operators is a small and medium-sized enterprise and the other is not; b) One of the operators has primary agricultural, livestock, fishery or forestry producer status, or is a group having such status, and the other does not; c) One of the operators is economically dependent on the other operator, meaning that the total sum for which the supplier invoiced the buyer accounts for at least 30 % of the supplier turnover during the previous year.
Amendment 219 #
Proposal for a directive
Article 1 – paragraph 2 a (new)
Article 1 – paragraph 2 a (new)
2 a. This Directive shall not apply to product deliveries made to agricultural cooperatives and other associated entities by their members, provided that they are compulsory according to their organization's rules.
Amendment 220 #
Proposal for a directive
Article 1 – paragraph 3
Article 1 – paragraph 3
3. This Directive shall apply to supplyfood agreements concluded after the date of applicability of the provisions transposing this Directive referred to in the second subparagraph of Article 12(1).
Amendment 222 #
Proposal for a directive
Article 2 – paragraph 1 – point –a (new)
Article 2 – paragraph 1 – point –a (new)
(-a) “unfair trading practice” means any practice which grossly deviates from good commercial conduct, is contrary to good faith and fair practice and is unilaterally imposed by one trading partner upon another, occurring when an enterprise: - submits or attempts to subject a trading partner to obligations that create a significant imbalance in the rights and obligations of the parties before, during or after the performance of the contract; - obtains or attempts to obtain, under threat of total or partial termination of contractual relations, manifestly unreasonable conditions concerning prices, payment terms, terms of sale or services not covered by the purchase obligations and sales.
Amendment 242 #
Proposal for a directive
Article 2 – paragraph 1 – point b
Article 2 – paragraph 1 – point b
(b) “supplier” means any agricultural producer or any natural or legal person, irrespective of their place of establishmentestablished in the UE, 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 or agricultural cooperatives;
Amendment 252 #
Proposal for a directive
Article 2 – paragraph 1 – point b a (new)
Article 2 – paragraph 1 – point b a (new)
(b a) "situation of economic dependence" occurs when 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 20% of the supplier’s turnover;
Amendment 253 #
Proposal for a directive
Article 2 – paragraph 1 – point b a (new)
Article 2 – paragraph 1 – point b a (new)
(b a) "economic dependence" occurs when, in a relationship between supplier and buyer, the total sum for which the supplier invoiced the buyer accounts for at least 30 % of turnover during the previous year;
Amendment 257 #
Proposal for a directive
Article 2 – paragraph 1 – point b b (new)
Article 2 – paragraph 1 – point b b (new)
(b b) “food procurement contract” means a contract in which one party commits to provide the other party with food or food products and the aforementioned food inputs, for a certain price, whether this be an isolated sale or ongoing supply.
Amendment 271 #
Proposal for a directive
Article 2 – paragraph 1 – point c a (new)
Article 2 – paragraph 1 – point c a (new)
(c a) “Resale at a loss” means the reselling or advertising of the resale below the actual purchase price. The actual purchase price is the net unit price shown on the purchase invoice, minus the amount of all other financial benefits granted by the supplier, plus turnover taxes, specific taxes relating to the purchase price and to the resale, as well as the price of transport.
Amendment 303 #
Proposal for a directive
Article 3 – paragraph –1 (new)
Article 3 – paragraph –1 (new)
-1. Member States shall ensure that unfair commercial practices are prohibited. Member States shall ensure that the abusive exploitation by a purchaser or a group of buyers of the state of economic dependence in which a supplier finds itself is prohibited.
Amendment 324 #
Proposal for a directive
Article 3 – paragraph 1 – point d a (new)
Article 3 – paragraph 1 – point d a (new)
(d a) an operator sells food or food products below costs. This practice exists when the price applied to a food product is lower than the purchase price as per invoice, less the proportional part of the discounts included in the invoice, or the actual cost of production if the good was produced by the seller himself, plus the indirect taxes charged on the transaction.
Amendment 344 #
Proposal for a directive
Article 3 – paragraph 1 – point b
Article 3 – paragraph 1 – point b
(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; unless a mutual arrangement can be found by the parties;
Amendment 379 #
Proposal for a directive
Article 3 – paragraph 1 – point d a (new)
Article 3 – paragraph 1 – point d a (new)
(da) a buyer of agricultural products or food products refuses to enter into a written contract with a supplier or refuses to communicate to a supplier the general conditions of sale or does not provide them with sufficiently detailed or unambiguous information on the contractual terms and conditions of the purchase of agricultural or food products;
Amendment 397 #
Proposal for a directive
Article 3 – paragraph 1 – point d b (new)
Article 3 – paragraph 1 – point d b (new)
(db) The resale of agricultural or food products at a loss is prohibited, except when it concerns products whose expiry date expires two days after the date of sale.
Amendment 456 #
Proposal for a directive
Article 3 – paragraph 1 a (new)
Article 3 – paragraph 1 a (new)
1a. Member States shall ensure that unnaturally low transfer prices are prohibited. Production costs should be used as a basis for setting prices in contracts between a supplier and a buyer so that the transfer price cannot be lower than the supplier's production costs. Member States shall lay down the procedures for determining the production costs of agricultural products and food products.
Amendment 492 #
Proposal for a directive
Article 3 – paragraph 2 – point d
Article 3 – paragraph 2 – point d
(d) a supplier pays for the marketing of agricultural or food products by the buyer, or the risk of losses arising from the marketing of agricultural or food products is transferred to the supplier.
Amendment 511 #
Proposal for a directive
Article 3 – paragraph 3
Article 3 – paragraph 3
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 estimateoverall payment through a general set of parameters, such as the price and the services provided.
Amendment 536 #
Proposal for a directive
Article 5 – paragraph 1
Article 5 – paragraph 1
1. A supplierComplaints shall be address a complainted to the enforcement authority of the Member State in which the buyer suspected to have engaged in a prohibited trading practicesupplier is established.
Amendment 537 #
Proposal for a directive
Article 5 – paragraph 1
Article 5 – paragraph 1
1. A supplien operator shall address a complaint to the enforcement authority of the Member State in which the buyeoperator suspected to have engaged in a prohibited trading practice is established.
Amendment 550 #
Proposal for a directive
Article 5 – paragraph 1 a (new)
Article 5 – paragraph 1 a (new)
1a. The affected operator may also request the enforcement authority of its Member State to address the complaint to the enforcement authority of the Member State where the operator suspected of carrying out a prohibited commercial practice is established.
Amendment 554 #
Proposal for a directive
Article 5 – paragraph 1 a (new)
Article 5 – paragraph 1 a (new)
1a. The enforcement authority, which receives the complaint, shall forward it to the competent enforcement authority of the State in which the buyer suspected of engaging in a prohibited business practice is established.
Amendment 557 #
Proposal for a directive
Article 5 – paragraph 1 b (new)
Article 5 – paragraph 1 b (new)
1b. When the buyer is not established in the Union, the competent authority shall have special powers to deal with the complaint and to penalize any infringements found.
Amendment 558 #
Proposal for a directive
Article 5 – paragraph 1 c (new)
Article 5 – paragraph 1 c (new)
1c. If the complainant is not established in the Union, they shall submit their complaint to the authority of the Member State in which the buyer is established.
Amendment 564 #
Proposal for a directive
Article 5 – paragraph 2
Article 5 – paragraph 2
2. Producer or supplier organisations or, associations of producer or supplier organisations whose member(s) or member(s) of their members consider(s) that they are affected by a prohibited trading practice, non-governmental and civil society organisations shall have the right to submit a complaint and may be a party in the proceedings.
Amendment 567 #
Proposal for a directive
Article 5 – paragraph 2
Article 5 – paragraph 2
2. Producer organisations or associations of producer organisations and professional agricultural 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.
Amendment 573 #
Proposal for a directive
Article 5 – paragraph 3
Article 5 – paragraph 3
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. Throughout the procedure, the authorities shall guarantee the anonymity of all the parties concerned, as well as the confidentiality of the process and of any sensitive information, while protecting the procedural rights of the defendant.
Amendment 585 #
Proposal for a directive
Article 6 – paragraph 1 – introductory part
Article 6 – paragraph 1 – introductory part
Member States shall ensure that their enforcement authority is properly equippedies have the necessary resources, including sufficient budgetary and other resources, expertise, procedures and other arrangements as well as a sufficient number of competent personnel at their disposal for the proper performance of their duties and shall confer on ithem the following powers:
Amendment 600 #
Proposal for a directive
Article 6 – paragraph 1 – point c
Article 6 – paragraph 1 – point c
(c) to take a decision granting the supplier interim relief to put an end to the forbidden commercial practice, establishing an infringement of the prohibitions laid down in Article 3 and require the buyer to terminate the prohibited trading practice, and 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 608 #
Proposal for a directive
Article 6 – paragraph 1 – point d
Article 6 – paragraph 1 – point d
(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; repeated infringements by the same operator shall be taken into account when determining the sanction to be applied;
Amendment 615 #
Proposal for a directive
Article 6 – paragraph 1 – point e
Article 6 – paragraph 1 – point e
(e) to publish systematically its decisions relating to points (c) and (d);
Amendment 629 #
Proposal for a directive
Article 7 – title
Article 7 – title
7 Cooperation between enforcement authoritiesUnion Enforcement Network
Amendment 630 #
Proposal for a directive
Article 7 – paragraph 1
Article 7 – paragraph 1
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 dimension1. A Union Enforcement Network (‘the Network’) is hereby established.
Amendment 633 #
Proposal for a directive
Article 7 – paragraph 2
Article 7 – paragraph 2
2. The enforcement authorities shall meet once per year to discuss the application of this Directivepurpose of the Network is to serve as a platform for structured cooperation between enforcement authorities onf 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 meetingsMember States and the Commission and to streamline the practices of enforcement authorities within the Union.
Amendment 640 #
Proposal for a directive
Article 7 – paragraph 3
Article 7 – paragraph 3
Amendment 642 #
Proposal for a directive
Article 7 a (new)
Article 7 a (new)
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 645 #
Proposal for a directive
Article 7 b (new)
Article 7 b (new)
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 Article 6(1)(a) 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 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, notably 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 651 #
Proposal for a directive
Article 8 – paragraph 1
Article 8 – paragraph 1
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.
Amendment 659 #
Proposal for a directive
Article 9 – paragraph 1
Article 9 – paragraph 1
1. By 15 March of each year, Member States shall send to the Commission a report on the implementation of the Directive focusing in particular 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 in the Member State concerned in the previous year. Member State authorities shall ensure dialogue with all relevant stakeholders, including consumers’ organisations, on the functioning of the supply chain in their territory and the effectiveness of their actions in meeting the objectives of this Directive.