51 Amendments of Igor ŠOLTES related to 2018/0082(COD)
Amendment 50 #
Proposal for a directive
Recital 3
Recital 3
(3) Different operators are active in the agricultural and food supply chain at the stages of production, processing, importing, exporting, marketing, distribution and retail of, retail and sale to final consumers of agricultural and food products. The chain is by far the most important channel for bringing agricultural and 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 52 #
Proposal for a directive
Recital 4
Recital 4
(4) While business risk is inherent in all economic activity, agricultural production is particularly fraught with uncertainty due to its reliance on biological processes, since agricultural products are to a greater or lesser extent perishable and seasonable, and its exposure to weather conditions. In an agricultural policy environment that is distinctly more market- oriented than in the past, protection against unfair trading practices has become more important for operators active in the agricultural and food supply chain and in particular for agricultural producers and their organisations.
Amendment 56 #
Proposal for a directive
Recital 5
Recital 5
(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 chaiharmful for operators in the agricultural and food supply chain both inside and outside the Union. Agricultural producers, who supply primary agricultural products, are largelyoften small and medium- sized actors in the food supply chain.
Amendment 60 #
Proposal for a directive
Recital 6
Recital 6
(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 agricultural and 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.
Amendment 67 #
Proposal for a directive
Recital 7
Recital 7
(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 inside and outside the Union, to prevent precarious working conditions, unsafe and unsustainable practices, loss of food quality 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, 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 m. 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. AHowever, 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 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.
Amendment 71 #
Proposal for a directive
Recital 8
Recital 8
(8) STo ensure the Union 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 all buyers established imarketing and placing those products on the Union market to avoid unintended distorting effects resulting from the protection of suppliers in the Union.
Amendment 72 #
Proposal for a directive
Recital 9
Recital 9
(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 suppliersoperators in the agricultural and food supply chain.
Amendment 75 #
Proposal for a directive
Recital 10
Recital 10
(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 agricultural and food supply chain, subject to the limits of Union law applicable to the functioning of the internal market.
Amendment 77 #
Proposal for a directive
Recital 11
Recital 11
(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, Member States should ensure that the provisions of this Directive should apply to such practices whenever they occur.
Amendment 81 #
Proposal for a directive
Recital 12
Recital 12
(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, and which do not result from the unfair exercise of bargaining power or of an unbalanced relationship, such as the exploitation of an economic dependence, 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.
Amendment 83 #
Proposal for a directive
Recital 14
Recital 14
(14) Complaints by producer organisations or associations of such organisations, as well as by organisations working with producers or with a proven expertise trading practices in food supply chains, 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 86 #
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 or being able to perform on-site inspections. 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 closelyrdinate their actions closely via the establishment of a Coordination Forum 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 and taking enforcement measures in cases which have a cross-border dimension.
Amendment 89 #
Proposal for a directive
Recital 16
Recital 16
(16) To facilitate effectiveensure proper enforcement, the Commission should help organise meetings betweenestablish a Coordination Forum with representatives of the enforcement authorities of the Member States where best practices can be exchanged and relevant information can be shared. The Commission should also establish and manage a website to facilitate those exchangesis coordination.
Amendment 92 #
Proposal for a directive
Recital 19
Recital 19
(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 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 95 #
Proposal for a directive
Article 1 – paragraph 1
Article 1 – paragraph 1
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.
Amendment 103 #
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 that is a small and medium-sized enterprise to a buyer that is not a small and medium-sized enterpriseo a buyer, including transactions between producer organisations or cooperatives and their members.
Amendment 117 #
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 food products by way of tradeirrespective of their place of establishment who buys agricultural or food products by way of trade to place them on the Union market. The term "buyer" may include a group of such natural and legal persons;
Amendment 120 #
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 establishment, who sells agricultural or 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;
Amendment 127 #
Proposal for a directive
Article 2 – paragraph 1 – point c
Article 2 – paragraph 1 – point c
Amendment 130 #
Proposal for a directive
Article 2 – paragraph 1 – point d
Article 2 – paragraph 1 – point d
(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;
Amendment 133 #
Proposal for a directive
Article 2 – paragraph 1 – point e
Article 2 – paragraph 1 – point e
(e) “perishable agricultural and food products” means fresh agricultural and food products that will become unfit for proper use or human consumption, in particular as a result of the product’s microbiological instability, unless they are stored, treated, packaged or otherwise conserved to prevent them from becoming unfit.
Amendment 137 #
Proposal for a directive
Article 2 – paragraph 1 – point e a (new)
Article 2 – paragraph 1 – point e a (new)
(ea) "unfair trading practices” means practices that: - grossly deviate from good and fair commercial conduct, are in contrary to good faith and fair dealing and are unilaterally imposed by a buyer on a supplier; - impose or attempt to impose an unjustified and disproportionate transfer of a buyer’s economic risk to the supplier; or - impose or attempt to impose a significant imbalance of rights and obligations on the supplier in the commercial relationship before, during or after the contract.
Amendment 143 #
Proposal for a directive
Article 2 – paragraph 1 – point e b (new)
Article 2 – paragraph 1 – point e b (new)
(eb) “supply agreement” means 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.
Amendment 146 #
Proposal for a directive
Article 3 – paragraph 1 – introductory part
Article 3 – paragraph 1 – introductory part
1. Member States shall ensure that the followingall unfair trading practices are prohibited, including at least the following trading practices:
Amendment 151 #
Proposal for a directive
Article 3 – paragraph 1 – point a a (new)
Article 3 – paragraph 1 – point a a (new)
(aa) a buyer pays a supplier for non- perishable food products more than 60 calendar days after the receipt of the supplier's invoice or more than 60 calendar days after the date of the delivery of the non-perishable food products, if this date is later. This prohibition shall be 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;
Amendment 153 #
Proposal for a directive
Article 3 – paragraph 1 – point b
Article 3 – paragraph 1 – point b
(b) a buyer unilaterally 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 160 #
Proposal for a directive
Article 3 – paragraph 1 – point c
Article 3 – paragraph 1 – point c
(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 productsagricultural or food products, or the terms of payment;
Amendment 162 #
Proposal for a directive
Article 3 – paragraph 1 – point d
Article 3 – paragraph 1 – point d
(d) a supplier pays for the wastage of agricultural or food products that occurs once the product has passed into the buyer'’s premisesownership and that is not caused by the negligence or fault of the supplier.;
Amendment 166 #
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 fails to provide the supplier with the supply agreement in written form, including sufficiently detailed and unambiguous information on the contractual terms and conditions of the purchase of agricultural or food products and the general conditions of sale;
Amendment 177 #
Proposal for a directive
Article 3 – paragraph 1 – point d b (new)
Article 3 – paragraph 1 – point d b (new)
(db) a buyer sells certain products below purchase cost to stimulate the sales of other products (“loss leader”);
Amendment 180 #
Proposal for a directive
Article 3 – paragraph 1 – point d c (new)
Article 3 – paragraph 1 – point d c (new)
(dc) a buyer uses the argument of products not meeting cosmetic specifications inconsistently as a reason to cancel or reduce the terms of the supply agreement;
Amendment 183 #
Proposal for a directive
Article 3 – paragraph 1 – point d d (new)
Article 3 – paragraph 1 – point d d (new)
(dd) a buyer uses overly strict ‘minimum life on receipt criteria’ in order to reject a previously agreed order, or to reject an order that was previously accepted but for reasons unrelated to the supplier has not been processed quickly enough;
Amendment 186 #
Proposal for a directive
Article 3 – paragraph 1 – point d e (new)
Article 3 – paragraph 1 – point d e (new)
(de) a buyer requires a supplier 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 205 #
Proposal for a directive
Article 3 – paragraph 2 – point a
Article 3 – paragraph 2 – point a
(a) a buyer returns unsold agricultural or food products to a supplier;
Amendment 207 #
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 agricultural or food products of the supplier;
Amendment 210 #
Proposal for a directive
Article 3 – paragraph 2 – point c
Article 3 – paragraph 2 – point c
(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 214 #
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.
Amendment 229 #
Proposal for a directive
Article 4 – paragraph 1 a (new)
Article 4 – paragraph 1 a (new)
Member States shall ensure that the designated enforcement authority has the necessary resources, including sufficient budgetary and expertise resources, to fulfil its obligations.
Amendment 230 #
Proposal for a directive
Article 4 – paragraph 1 b (new)
Article 4 – paragraph 1 b (new)
Member States shall inform the Commission of the designated enforcement authority.
Amendment 232 #
Proposal for a directive
Article 5 – paragraph 1
Article 5 – paragraph 1
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 suspected to have engaged in a prohibited trading practice is established.
Amendment 238 #
Proposal for a directive
Article 5 – paragraph 1 a (new)
Article 5 – paragraph 1 a (new)
1a. In cases where the buyer is established outside the Union, the supplier shall address a complaint to the enforcement authority of the Member State in which it is established. In cases where the supplier is established outside the Union, the supplier may address a complaint to any designated enforcement authority. Upon receipt of the complaint, the enforcement authority shall forward it to the enforcement authority of the Member State in which the buyer suspected to have engaged in a prohibited trading practice is established.
Amendment 241 #
Proposal for a directive
Article 5 – paragraph 2
Article 5 – paragraph 2
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, as well as organisations working with producers or with a proven expertise in trading practices in food supply chains, shall have the right to submit a complaint.
Amendment 257 #
Proposal for a directive
Article 5 – paragraph 4
Article 5 – paragraph 4
4. Within one month of receiving the complaint, the enforcement authority shall inform the complainant about its decision to start an investigation. Where the enforcement authority considers that there are insufficient grounds for acting on a complaint, it shall inform the complainant about the reasons.
Amendment 258 #
Proposal for a directive
Article 5 – paragraph 4 a (new)
Article 5 – paragraph 4 a (new)
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 265 #
Proposal for a directive
Article 6 – paragraph 1 – point b a (new)
Article 6 – paragraph 1 – point b a (new)
(ba) to perform unannounced site inspections within the framework of its investigations;
Amendment 266 #
Proposal for a directive
Article 6 – paragraph 1 – point b b (new)
Article 6 – paragraph 1 – point b b (new)
(bb) to undertake mediation or dispute resolution functions, where the supplier has agreed, and in private where the supplier so requests;
Amendment 276 #
Proposal for a directive
Article 6 – paragraph 1 a (new)
Article 6 – paragraph 1 a (new)
The Commission is 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 281 #
Proposal for a directive
Article 7 – paragraph 1 a (new)
Article 7 – paragraph 1 a (new)
1a. The following mechanisms for cooperation between enforcement authorities shall be established: (a) at the request of an applicant enforcement authority, the requested authority shall, without delay, provide to the applicant authority any relevant information necessary to establish whether an unfair trading practice has occurred or is occurring. The requested authority shall undertake the appropriate and necessary investigations to fulfil this request for information. (b) at the request of an applicant enforcement authority, a requested authority shall take all necessary and proportionate enforcement measures to terminate the prohibited trading practice within a maximum period of six months. The requested authority shall regularly inform the applicant authority about the steps and measures taken, or that it intends to take.
Amendment 283 #
Proposal for a directive
Article 7 – paragraph 2
Article 7 – paragraph 2
2. The enforcement authorities shall meet at least once per year to discuss the application of this Directive owithin 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 meetingsframework of a Coordination Forum under the supervision of the Commission.
Amendment 286 #
Proposal for a directive
Article 7 a (new)
Article 7 a (new)
Article 7a Coordination Forum 1. The Commission shall establish, chair and manage a Coordination Forum composed of representatives appointed by each enforcement authority. 2. The Coordination Forum shall meet at least once per year, and shall enable enforcement authorities: (a) to discuss and monitor the application of this Directive based on the annual reports referred to in Article 9(1); (b) to facilitate the exchange of information and best practices, especially on enforcement cooperation in cases involving operators from more than one Member State; (c) to consider and analyse new forms of unfair trading practice; (d) to cooperate in setting and imposing penalties, including pecuniary fines, in cases involving operators from more than one Member State.
Amendment 294 #
Proposal for a directive
Article 11 – paragraph 1
Article 11 – paragraph 1
1. No soonlater than three years after the date of application of this Directive and every two years thereafter, 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 consider the need to review this Directive, in particular to include new forms of unfair trading practice, and to make use of data on input costs and price transmission through the agricultural or food supply chain in order to establish criteria for determining fair prices within a supply agreement. On the basis of this report, the Commission may present appropriate legislative proposals.