Activities of Nicola CAPUTO related to 2018/0082(COD)
Plenary speeches (1)
Unfair trading practices in business-to-business relationships in the food supply chain (debate) IT
Amendments (50)
Amendment 133 #
Proposal for a directive
Recital 12 a (new)
Recital 12 a (new)
(12 a) Nutrition labelling schemes unilaterally imposed by buyers on suppliers, which do not provide the consumers with comprehensive information, may discriminate between producers and mislead consumers in their choice of products. The imposition of such schemes may be considered as falling under the definition of unfair trading practice.
Amendment 136 #
Proposal for a directive
Recital 13
Recital 13
(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. Whenevere a complainant requests that his identity remain confidentialis logged the enforcement authority of the Member States shall, because of the fear of retaliation, the enforcement authorities of the Member States should honour such a requestguarantee that the complainant’s identity remains anonymous.
Amendment 149 #
Proposal for a directive
Recital 14
Recital 14
(14) Complaints by producer or supplier organisations or associations of such organisations, including representative organizations, 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 157 #
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 gather any factual information by way of information requests. They should have the power to order thebe 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 chain. They should guarantee the fair and proper functioning of the agricultural and food supply chain and promptly termination ofe 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. 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 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 159 #
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 gather any factual information by way of information requests. They should havensure the power to order thefair and proper functioning of the agricultural and food supply chain and promptly termination ofe a prohibited practice, where applicable. The existence of a deterrent, such as the power to impose fines or other 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 infringement shall 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. 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 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 204 #
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 agricultural and food products by a supplier to a buyer that is not a small and medium-sized enterprise to a buyer that is not a small and medium-sized enterprise, as well as to the services provided by a buyer and related to those products.
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 223 #
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 partnerupon another, occuring 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 235 #
Proposal for a directive
Article 2 – paragraph 1 – point a
Article 2 – paragraph 1 – point a
(a) “buyer” means any natural or legal person established in the Union who buys, irrespective of their place of establishment, who buys agricultural and food products by way of trade. The term "buyer" may include a group of such natural and legal persons;
Amendment 251 #
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 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 270 #
Proposal for a directive
Article 2 – paragraph 1 – point b a (new)
Article 2 – paragraph 1 – point b a (new)
(b a) "supply agreement" means an agreement between a supplier and a buyer that covers price, quantities, delivery and payments conditions, as well as rights and termination procedures.
Amendment 279 #
Proposal for a directive
Article 2 – paragraph 1 – point d a (new)
Article 2 – paragraph 1 – point d a (new)
(d a) "private label food products" are food products that are sold under retailers' brands;
Amendment 284 #
Proposal for a directive
Article 2 – paragraph 1 – point e
Article 2 – paragraph 1 – point e
(e) “perishable agricultural and food products” means agricultural and food products that will become unfit for human consumption unless they are stored, treated, packaged or otherwise conserved to prevent them from becoming unfitrapidly decay due to their natural characteristics, in particular in the absence of appropriate storage conditions.
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 321 #
Proposal for a directive
Article 3 – paragraph 1 – point a – indent 1 a (new)
Article 3 – paragraph 1 – point a – indent 1 a (new)
- to the rules on payment terms laid down in the statute of a producer organization or of an association of producer organizations, including cooperatives, of which an agricultural producer is a member, if that statute contains rules enabling members to scrutinise democratically their organisation and its decisions;
Amendment 345 #
Proposal for a directive
Article 3 – paragraph 1 – point c
Article 3 – paragraph 1 – point c
(c) a buyer unilaterally and retroactivelyimposes changes to 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 foodagricultural and food products or the services related to those products;
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 380 #
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 455 #
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. This shall also apply to private label food products.
Amendment 457 #
Proposal for a directive
Article 3 – paragraph 1 b (new)
Article 3 – paragraph 1 b (new)
1b. 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 462 #
Proposal for a directive
Article 3 – paragraph 2 – introductory part
Article 3 – paragraph 2 – introductory part
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 the economic dependence of the supplier on the buyer, which enabled the buyer to impose these terms:
Amendment 482 #
Proposal for a directive
Article 3 – paragraph 2 – point b
Article 3 – paragraph 2 – point b
(b) a buyer charges a supplier payment as a condition for the stocking, displaying or listing food products of the supplier. However, this practice may be allowed if the buyer can ensure that the supplier gets a return on investment;
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 508 #
Proposal for a directive
Article 3 – paragraph 2 a (new)
Article 3 – paragraph 2 a (new)
2a. Member States shall ensure that the trading practices referred to in paragraph 2 points (b), (c) and (d) are prohibited if the ensuing payments from the supplier to the buyer are not related to the costs incurred by the buyer.
Amendment 520 #
Proposal for a directive
Article 3 a (new)
Article 3 a (new)
Article 3a Contractual relations 1. Without prejudice to Articles 125 and 148 of Regulation (EU) No 1308/2013, Article 168 of that Regulation applies to agricultural and food products as defined in Article 2 point (d) of this Directive. 2. 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 532 #
Proposal for a directive
Article 4 a (new)
Article 4 a (new)
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 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 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 565 #
Proposal for a directive
Article 5 – paragraph 2
Article 5 – paragraph 2
2. POrganisations of producers organisations or associations of producer of suppliers or associations of organisations of producers or of suppliers, including representative organiszations, 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 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 605 #
Proposal for a directive
Article 6 – paragraph 1 – point d
Article 6 – paragraph 1 – point d
(d) to impose a pecuniary fine or other sanctions on the author of the infringement. The fine, in accordance with national law. 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 operator shall be taken into account when determining the sanction to be applied;
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 626 #
Proposal for a directive
Article 6 a (new)
Article 6 a (new)
Article 6 a 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 60 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 motivated 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. 5. Where, as a result of the investigation, an infringement of the prohibitions laid down in Article 3 is established, the enforcement authority shall require the buyer to terminate the prohibited trading practice and impose a pecuniary fine or other equally effective sanctions on the author of the infringement, 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 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 646 #
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 3, 5, 6 and 7, provided that such national rules are compatible with the rules on the functioning of the internal marketshall not under this Directive be precluded from adopting and applying in their territory stricter national laws, which prohibit or sanction trading practices by undertakings.
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.
Amendment 670 #
Proposal for a directive
Article 11 a (new)
Article 11 a (new)
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.