Activities of Jasenko SELIMOVIC related to 2018/0082(COD)
Shadow opinions (1)
OPINION 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
Amendments (39)
Amendment 54 #
Proposal for a directive
Recital 5
Recital 5
(5) TFreedom 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. DTherefore, 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 66 #
Proposal for a directive
Recital 7
Recital 7
(7) A minimum Union standard of protection against certain widespread 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. __________________ 12 OJ L 124, 20.5.2003, p. 36. OJ L 124, 20.5.2003, p. 36.
Amendment 68 #
Proposal for a directive
Recital 7 a (new)
Recital 7 a (new)
(7a) It is essential to prohibit at Union level manifestly widespread unfair trading practices in business-to-business relationships between suppliers without bargaining power and non-SME buyers in the food supply chain, and to provide an exhaustive and minimum list of what can be considered as such. Having a broad or vague definition of unfair trading practices could prevent efficiency- enhancing behaviours and commercial practices between those operators from taking place. Proscribing behaviours that are efficiency- enhancing will reduce the surplus to a transaction and likely harm all parties to it, making it imperative not to incorrectly identify such behaviours as unfair trading practices at Union level.
Amendment 73 #
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 against widespread unfair practices 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 proportionality and the limits of Union law applicable to the functioning of the internal market.
Amendment 79 #
Proposal for a directive
Recital 11
Recital 11
(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 widespread practices whenever they occur.
Amendment 82 #
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 agrerrangements agreed between parties. As a result, it is appropriate to distinguish practices that are foreseen in clear and unambiguous terms in supply agreements betweena specific distinction between provisions or conditions agreed ex-ante and which typically lead to efficiencies for both parties fromand practices that occur after the transaction has stex-post and reduce or eliminate the efficiencies for the partedy 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 weaker bargaining power should be applied in this Directive. Contractual provisions or trading conditions agreed ex-ante should only be regulated as unfair trading practices where it is generally the case that they do not lead to efficiencies for the party with weaker bargaining power in the transaction. 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 97 #
Proposal for a directive
Article 1 – paragraph 1
Article 1 – paragraph 1
1. This Directive establishes a minimum list of widespread 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.
Amendment 106 #
Proposal for a directive
Article 1 – paragraph 2
Article 1 – paragraph 2
2. This Directive applies to certain widespread 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.
Amendment 110 #
Proposal for a directive
Article 1 – paragraph 3
Article 1 – paragraph 3
3. This Directive shall apply to supply agrerrangements concluded after the date of applicability of the provisions transposing this Directive referred to in the second subparagraph of Article 12(1).
Amendment 112 #
Proposal for a directive
Article 1 – paragraph 3 a (new)
Article 1 – paragraph 3 a (new)
3a. Member States may, in accordance with Article 8, provide for rules that go beyond the provisions of this Article.
Amendment 130 #
Proposal for a directive
Recital 12 a (new)
Recital 12 a (new)
(12 a) A supplier should be able to require that their trading arrangement with the buyer in agricultural and food chain such as delivery of products be subject to a written contract with all the relevant aspects of the trading arrangement including elements according to Articles 148(1a) and 168(1a) of Regulation No (EU) 1308/2013.
Amendment 139 #
Proposal for a directive
Article 2 – paragraph 1 – point e a (new)
Article 2 – paragraph 1 – point e a (new)
(ea) "widespread unfair trading practices" mean practices that grossly deviate from good commercial conduct, are contrary to good faith and fair dealing and are unilaterally imposed by one trading partner on its counterparty, and that are widely recognized as such in at least ten Member States.
Amendment 142 #
Proposal for a directive
Recital 13 a (new)
Recital 13 a (new)
(13 a) 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 145 #
Proposal for a directive
Article 3 – title
Article 3 – title
Prohibition of widespread unfair trading practices
Amendment 148 #
Proposal for a directive
Article 3 – paragraph 1 – introductory part
Article 3 – paragraph 1 – introductory part
1. Member States shall ensure that the following trading practices arconstitute prohibited trading arrangements:
Amendment 163 #
Proposal for a directive
Recital 15 a (new)
Recital 15 a (new)
(15 a) The exercise of the powers conferred by this Directive on enforcement authorities should be subject to appropriate safeguards which meet the standards of general principles of Union law and the Charter of Fundamental Rights of the European Union, in accordance with the case law of the Court of Justice of the European Union;
Amendment 200 #
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 arconstitute prohibited trading arrangements, if they are not agreed in clear and unambiguous terms at the conclusion of the supply agreement:
Amendment 225 #
Proposal for a directive
Article 3 – paragraph 4
Article 3 – paragraph 4
4. Member States shall ensure that the prohibitions laid down in paragraphs 1 and 2 constitute overriding mandatory provisions of trading arrangements which are applicable to any situation falling within their scope, irrespective of the law otherwise applicable to the supply agreement between the parties.
Amendment 226 #
Proposal for a directive
Article 3 – paragraph 4 a (new)
Article 3 – paragraph 4 a (new)
4a. A supplier may require that their trading arrangement is subject to a written contract including all relevant aspects of the trading arrangement.
Amendment 227 #
Proposal for a directive
Article 3 – paragraph 4 b (new)
Article 3 – paragraph 4 b (new)
4b. Member States may, in accordance with Article 8, provide for rules that go beyond the provisions of this Article.
Amendment 245 #
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 shall have the right to submit a complaint and to be properly involved in the procedures.
Amendment 259 #
Proposal for a directive
Article 5 – paragraph 4 a (new)
Article 5 – paragraph 4 a (new)
4a. Member States may, in accordance with Article 8, provide for rules that go beyond the provisions of this Article.
Amendment 267 #
Proposal for a directive
Article 6 – paragraph 1 – point c
Article 6 – paragraph 1 – point c
(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 271 #
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;
Amendment 277 #
Proposal for a directive
Article 6 – paragraph 1 a (new)
Article 6 – paragraph 1 a (new)
Member States may, in accordance with Article 8, provide for rules that go beyond the provisions of this Article.
Amendment 278 #
Proposal for a directive
Article 6 a (new)
Article 6 a (new)
Amendment 285 #
Proposal for a directive
Article 7 – paragraph 3 a (new)
Article 7 – paragraph 3 a (new)
3a. Member States may, in accordance with Article 8, provide for rules that go beyond the provisions of this Article.
Amendment 289 #
Proposal for a directive
Article 8 – paragraph 1 a (new)
Article 8 – paragraph 1 a (new)
Proceedings in relation to points (c), (d) and (e) of Article 6 shall respect the administrative and legal proceedings and principles in the specific Member State considering the assessment. The enforcement authority shall abstain from actions arising from a request of confidentiality by the supplier in accordance with Article 5(3).
Amendment 308 #
Proposal for a directive
Article 3 – paragraph 1 – introductory part
Article 3 – paragraph 1 – introductory part
1. Member States shall ensure that the following trading practices arconstitute prohibited trading arrangements:
Amendment 468 #
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 arconstitue prohibited trading arrangements, if they are not agreed in clear and unambiguous terms at the conclusion of the supply agreement:
Amendment 512 #
Proposal for a directive
Article 3 – paragraph 4
Article 3 – paragraph 4
4. Member States shall ensure that the prohibitions laid down in paragraphs 1 and 2 constitute overriding mandatory provisions of trading arrangements which are applicable to any situation falling within their scope, irrespective of the law otherwise applicable to the supply agreement between the parties.
Amendment 523 #
Proposal for a directive
Article 3 – paragraph 4 – subparagraph 1 (new)
Article 3 – paragraph 4 – subparagraph 1 (new)
A supplier may require that their trading arrangement shall be subject to a written contract including all relevant aspects of the trading arrangement.
Amendment 568 #
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 shall have the right to submit a complaint and to be properly involved in the procedures.
Amendment 601 #
Proposal for a directive
Article 6 – paragraph 1 – point c
Article 6 – paragraph 1 – point c
(c) to take a decision, within the framework of 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 606 #
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 the 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 and possible repetition of the infringement;
Amendment 622 #
Proposal for a directive
Article 6 – paragraph 1 – point f a (new)
Article 6 – paragraph 1 – point f a (new)
(fa) 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).
Amendment 625 #
Proposal for a directive
Article 6 – paragraph 1 – point f b (new)
Article 6 – paragraph 1 – point f b (new)
(fb) The Member States may decide that the fines or other sanction are initiated by the enforcement authority and imposed by competent national courts, while ensuring that those fines are effective and have an equivalent effect to administrative fines imposed by enforcement authorities. In any event, other sanctions imposed shall be effective, proportionate and dissuasive taking into account the nature, duration, gravity and possible repetition of the infringement.
Amendment 648 #
Proposal for a directive
Article 8 – paragraph 1
Article 8 – paragraph 1
To ensure a higher level of protection, Member States may provide for rules designed to combat unfair trading practices going beyond those set out in Articles 3, 5, 6 and 7, 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.
Amendment 655 #
Proposal for a directive
Article 8 – paragraph 1 a (new)
Article 8 – paragraph 1 a (new)
Proceedings in relation to Article 6 (c-e) shall respect the administrative and legal proceedings and principles in the specific Member State.