Activities of Jacques COLOMBIER related to 2018/0082(COD)
Shadow reports (1)
REPORT 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 PDF (1 MB) DOC (245 KB)
Amendments (33)
Amendment 66 #
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, price volatility and changing geopolitical situations, which can cause huge disruptions to a specific sector (in particular, via trade preferences and embargos, etc.). In an agricultural policy environment that is distinctly more market- oriented than in the past, protection against unfair trading practices has become moreis currently of paramount important force to operators active in the food supply chain and in particular forto agricultural producers and their organisations.
Amendment 78 #
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 food supply chain. Where reliance on contract law or self-regulatory initiatives is possible, fear of financial, trade or contractual 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, and are not enough to provide effective and uniform protection to European producers.
Amendment 81 #
Proposal for a directive
Recital 7
Recital 7
(7) A minimum Union standard of protection against certainall 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/EC12agricultural producers or producer organisations. Thoese micro, small or medium supplieragricultural producers or producer organisations 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- sizedagricultural enterprises caused by unfair trading practices often passes through the chain and reachesaffects the morale of agricultural producers, their health and their income, 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. _________________ 12OJ L 124, 20.5.2003, p. 36.
Amendment 93 #
Proposal for a directive
Recital 8
Recital 8
(8) Suppliers established outside the Union should be able to rely on the Union minimum standard, together with the (possibly stricter) standard of the Member State in which they would like to sell their products, when they sell food products to buyers established in the Union to avoid unintended distorting effects resulting from the protection of suppliers in the Union.
Amendment 114 #
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 supplieragricultural producers, producer organisations and buyers against unfair trading practices occurring in business-to- business relationships in the food supply chain, subject to the limits of Union law applicable to the functioning of the internal market.
Amendment 116 #
Proposal for a directive
Recital 10 a (new)
Recital 10 a (new)
(10a) Given that national laws vary, the position of agricultural producers and producer organisations in the chain should be protected by giving them the possibility, in the event of a trade negotiation involving their agricultural products and an entity from another country, to choose the legal system that will give them the most favourable conditions.
Amendment 119 #
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, in relation to the provision of services by the buyer, or group of buyers, to the supplier, Member States should ensure that the provisions of this Directive should apply to such practices whenever they occur.
Amendment 122 #
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 The Member States may, where relevant, establish appropriate to distinguish list of contentious but permitted practices that armay be foreseen in clear and unambiguous terms in supply agreements between the parties from p. 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 legal classification, and should not be subject to the parties’ contractual freedom to deviate from them.
Amendment 141 #
Proposal for a directive
Recital 13 a (new)
Recital 13 a (new)
(13a) When an unfair practice is carried out in a State other than the one in which the farmer or producer organisation conducts their business, the complaint may still be lodged with the authority in the complainant's country.
Amendment 152 #
Proposal for a directive
Recital 14
Recital 14
(14) Complaints by producer organisations or associations of such organisations can serve to protect the identity of individual members of the organisation who are small and medium- sized suppliers and consider themselves exposed to unfair trading practices. Enforcement authorities of the Member States should therefore be able to accept and act upon complaints by such entities while protecting the procedural rights of the defendant. Any damages paid at the end of such procedures shall go to the member who initiated the complaint.
Amendment 169 #
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 States where best practices can be exchanged and relevant information can be shared. The Commission should establish and manage a website and make it accessible to Member States to facilitate those exchanges.
Amendment 176 #
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 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 supplierfarmers and producer organisations – in the future would be justified,
Amendment 186 #
Proposal for a directive
Article premier – paragraph 1 a (new)
Article premier – paragraph 1 a (new)
1a. This directive gives Member States the right, where relevant, to establish a list of contentious but permitted practices that may be foreseen in clear and unambiguous terms in supply agreements between the parties.
Amendment 187 #
Proposal for a directive
Article premier – paragraph 2
Article premier – paragraph 2
2. This Directive applies to certainall unfair trading practices which occur in relation to the sales of food products by a supplier that is a small and medium-sized enterprisen agricultural enterprise or a producer organisation to a buyer that idoes not a small and medium-sized enterprisebelong to that category.
Amendment 268 #
Proposal for a directive
Article 2 – paragraph 1 – point c
Article 2 – paragraph 1 – point c
Amendment 277 #
Proposal for a directive
Article 2 – paragraph 1 – point d
Article 2 – paragraph 1 – point d
(d) “food products” means products listed in Annex I to the Treaty intended for use as food, and any product arising from the work of, or service provided by, a supplier, as well as products not listed in that Annex, but processed from those products for use as food;
Amendment 385 #
Proposal for a directive
Article 3 – paragraph 1 – point d e (new)
Article 3 – paragraph 1 – point d e (new)
(de) a buyer carries out communication or promotional activities or implements commercial policies which risk being detrimental to the image of products bearing a geographical indication pursuant to Regulation (EU) No 1151/2012, Regulation (EC) No 110/2008 or Regulation (EU) No 251/2014;
Amendment 388 #
Proposal for a directive
Article 3 – paragraph 1 – point d c (new)
Article 3 – paragraph 1 – point d c (new)
(dc) a buyer does not inform the supplier of any different treatment the buyer gives, or intends to give, to competitor brands owned or managed by that buyer. Such difference in treatment shall include at least any specific measures or conduct on the part of the buyer in relation to: (a) listings, (b) shelf space and (c) trade margins;
Amendment 394 #
Proposal for a directive
Article 3 – paragraph 1 – point d a (new)
Article 3 – paragraph 1 – point d a (new)
(da) the partial or total reduction of purchases under existing contracts for the purpose of imposing a change to an existing contract or negotiating a new contract;
Amendment 408 #
Proposal for a directive
Article 3 – paragraph 1 – point d b (new)
Article 3 – paragraph 1 – point d b (new)
(db) a buyer shares with third parties, or uses improperly, be it intentionally or negligently, confidential information relating to a supply agreement, including trade secrets shared by the supplier with the buyer;
Amendment 421 #
Proposal for a directive
Article 3 – paragraph 1 – point d d (new)
Article 3 – paragraph 1 – point d d (new)
(dd) a buyer implements forms of trade reprisals against a supplier, where the latter exercises his contractual and legal rights, including the lodging of complaints and cooperation with national law-enforcement authorities;
Amendment 461 #
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; otherwise, if the Member State wishes to authorise these practises, it must first add them to its list of contentious but authorised practices, in line with Article 1(1)(a), and ensure that they are agreed in clear and unambiguous terms by both parties at the conclusion of the supply agreement:
Amendment 472 #
Proposal for a directive
Article 3 – paragraph 2 – point a
Article 3 – paragraph 2 – point a
(a) a buyer returns unsold food products to a supplier, in particular if they are perishables;
Amendment 484 #
Proposal for a directive
Article 3 – paragraph 2 – point c
Article 3 – paragraph 2 – point c
(c) a supplier pays for the promotion of food products sold by the buyer. Prior to a promotion and if that promotion is initiated by the buyer with the explicit agreement of the supplier, the buyer shall specify the period of the promotion and the expected quantity of the food products to be ordered;
Amendment 507 #
Proposal for a directive
Article 5 a (new)
Article 5 a (new)
Article 5a Rules of evidence The buyer must establish that it has not committed one of the unfair trading practices listed under Article 3 of this directive.
Amendment 515 #
Proposal for a directive
Article 3 – paragraph 4 a (new)
Article 3 – paragraph 4 a (new)
4a. The costs of the services that derive from the performance of the supply agreement by the buyer shall be clearly set out within that agreement and determined strictly in accordance with the service provided; they may not, furthermore, under any circumstances, reflect a state of economic dependence of the supplier on the buyer, which would enable the latter to impose such terms unilaterally.
Amendment 541 #
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 of the Member State where it conducts its business.
Amendment 579 #
Proposal for a directive
Article 5 – paragraph 4
Article 5 – paragraph 4
4. Where the enforcement authority considers that there are insufficient grounds for acting on a complaint, it shall inform only the complainant about the reasons. The complainant shall be notified of the rejection in line with the laws of the Member State in which the enforcement authority is established. This notification should mention that the complainant can appeal the decision within a suitable time limit, under the laws of the Member State in which the enforcement authority is established.
Amendment 583 #
Proposal for a directive
Article 5 – paragraph 4 a (new)
Article 5 – paragraph 4 a (new)
4a. The competent authority referred to in the previous paragraphs shall also be competent to investigate unfair trading practices relating to the supply of services connected to the supply agreement. The buyer and, where appropriate, the third- party recipient of the goods, shall be held jointly liable for any infringements committed by a third-party supplier of the relevant services.
Amendment 588 #
Proposal for a directive
Article 6 – paragraph 1 – point a
Article 6 – paragraph 1 – point a
(a) to initiate and conduct investigations on its own initiative or based on a complaint;
Amendment 602 #
Proposal for a directive
Article 6 – paragraph 1 – point c
Article 6 – paragraph 1 – point c
(c) to take a decision establishing an infringement of the prohibitions laid down in Article 3 and require the buyer to immediately 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 604 #
(d) to impose a substantial 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;. The fine should make it possible for the complainant to return its finances to what they were before the offence was committed. The complainant can also claim moral damages if the offence has undermined the complainant's interests, harmed its brand image or caused damage other than commercial damage alone.
Amendment 641 #
Proposal for a directive
Article 7 – paragraph 3
Article 7 – paragraph 3
3. The Commission shall establish and manage a website that provides for the possibility of information exchange between the enforcement authorities and the Commission, in particular in relation to the annual meetings.