Activities of Michel DANTIN related to 2018/0082(COD)
Plenary speeches (1)
Unfair trading practices in business-to-business relationships in the food supply chain (debate) FR
Amendments (49)
Amendment 70 #
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 particulareven more harmful for small and medium-sized operators in the agricultural and food supply chain. Agricultural producers, who supply primary agricultural products, are largelyoften small and medium- sized. sized, but all suppliers irrespective of size are susceptible to unfair trading practices.
Amendment 83 #
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. 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 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 and cooperatives. The financial pressure caused by unfair trading practices often passes through the chain and reaches agricultural producers, and therefore 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.
Amendment 89 #
Proposal for a directive
Recital 7 a (new)
Recital 7 a (new)
(7 a) The provisions of this Directive should apply to all buyers, regardless of where they are established, if the products they buy are destined for the EU's agricultural and food supply chain. To strengthen the implementation and enforcement of the provisions of this Directive by operators established outside the EU, the Commission should include specific clauses in the Union's bilateral trade agreements with third countries.
Amendment 117 #
Proposal for a directive
Recital 11
Recital 11
(11) As unfair trading practices may occur at any stage of the sale of an agricultural and food product, i.e. before, during or after a sales transaction, or in connection with the provision of services related to that product 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 123 #
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 trading practices that are unfair by their very nature and should not be left to the parties' contractual freedom from those that are foreseen in clear and unambiguous terms in supply agreements between parties fromand 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 deviatbut which are not an attempt by the buyer to use the supplier's economic dependence on the buyer to force that supplier to accept its terms, so that only unilateral and retrospective changes to those relevant terms of the supply agreement are fprom themhibited.
Amendment 126 #
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 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. In addition, suppliers should not be put under duress when agreeing to a supply agreement.
Amendment 139 #
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. Where a complainant requests that his identity remain confidential because of fear of retaliation, the enforcement authorities of the Member States should honour such a requestguarantee the complainant's anonymity.
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 160 #
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 the termination of a prohibited praFor the effective implementation of this Directicve, where applicable. The existence of a deterrent, such as the power to impose fines and the publication of investigation results, cenforcement authorities should have the power to outlaw a prohibited unfair trading practice, impose fines, sanctions and publish the results of investigations. These powers can act as a deterrent and encourage behavioural change and pre- litigation solutions between the parties and should therefore be part of the powers of the enforcement authorities. Enforcement authorities should take repeated infringements of this Directive into account. 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, particularly with regard to fines and sanctions. In particular, the enforcement authorities should provide each other mutual assistance, for example by sharing information and assisting in investigations which have a cross-border dimension.
Amendment 167 #
Proposal for a directive
Recital 16
Recital 16
(16) To facilitate effective enforcement, the Commission should helpcoordinate and 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 to facilitate those exchanges.
Amendment 170 #
Proposal for a directive
Recital 17
Recital 17
(17) The rules laid down in this Directive should not impair the possibility for the Member States to maintain existing rules that are further-reaching or to adopt such rules in the future, subject to the limits of Union law applicable to the functioning of the internal market, in particular the principles of the free circulation of goods and services, freedom of establishment, non-distrimination and access to an impartial and independent judicial review. The rules would apply alongside voluntary governance measures.
Amendment 198 #
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 enterprisepurchase of agricultural and food products by a buyer from a supplier and the subsequent sale of these products.
Amendment 201 #
Proposal for a directive
Article premier – paragraph 2
Article premier – 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 enterprise.agricultural and food products, and to services connected with those products, by a supplier to a buyer which is not a small and medium-sized enterprise; (The change from 'food products' to 'agricultural and food products' applies across the whole text and requires the necessary modifications.)
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 232 #
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 trade, wherever that person is established, who buys food products for commercial purposes and/or offers services connected with those products. The term "buyer" may include a group of such natural and legal persons;
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 246 #
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 and 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 and cooperatives;
Amendment 255 #
Proposal for a directive
Article 2 – paragraph 1 – point b a (new)
Article 2 – paragraph 1 – point b a (new)
(ba) "economic dependence" means an imbalanced situation in which the buyer is in a situation of power over the supplier, making the supplier vulnerable because the buyer is well-known, because the buyer has a significant market share in the supplier's turnover, or because the supplier cannot find a sufficient alternative trade solution;
Amendment 306 #
Proposal for a directive
Article 3 – paragraph 1 – introductory part
Article 3 – paragraph 1 – introductory part
1. Member States shall ensure that at the minimum the following unfair trading practices are prohibited:
Amendment 307 #
Proposal for a directive
Article 3 – paragraph 1 – introductory part
Article 3 – paragraph 1 – introductory part
1. Member States shall ensure that the following unfair trading practices are prohibited, at the very least:
Amendment 310 #
Proposal for a directive
Article 3 – paragraph 1 – point a – introductory part
Article 3 – paragraph 1 – point a – introductory part
(a) a buyer pays a supplier for perishable food products later than 30 calendar days after thelater than: - 30 calendar days starting from the last day of the month of receipt of the supplier’s invoice for perishable food products, or 30 calendar days after the date of delivery of the agricultural and perishable food products; - more than 60 calendar days starting from the last day of the month of receipt of the supplier’s invoice for later than 3non- perishable food products, or 60 calendar days after the date of delivery of thenon- perishable food products, whichever is the later.; This prohibition shall be without prejudice:
Amendment 322 #
Proposal for a directive
Article 3 – paragraph 1 – point a – indent 2 a (new)
Article 3 – paragraph 1 – point a – indent 2 a (new)
- to agreements, decisions and concerted practices of interbranch organisations recognised under Article 157 of Regulation (EU) No 1308/2013, the aim of which is to modify the terms of payment for transactions relating to agricultural and food products falling under a quality scheme established in accordance with Regulation (EC) No 110/2008 of the European Parliament and of the Council, Regulation (EU) No 1151/2012 of the European Parliament and of the Council, Regulation (EU) No 1308/2013 and Regulation (EU) No 251/2014 of the European Parliament and of the Council;
Amendment 347 #
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 products, or the terms of payment;
Amendment 353 #
Proposal for a directive
Article 3 – paragraph 1 – point c a (new)
Article 3 – paragraph 1 – point c a (new)
(ca) a buyer obtains or attempts to obtain from a supplier some kind of benefit without providing any compensation or service in return, or if the benefit is clearly disproportionate to the value of the compensation or service provided;
Amendment 358 #
Proposal for a directive
Article 3 – paragraph 1 – point c b (new)
Article 3 – paragraph 1 – point c b (new)
(cb) a buyer forces a supplier - or attempts to force a supplier - to give that buyer special conditions under the threat of partial or total destocking of the supplier's agricultural products or foodstuffs;
Amendment 363 #
Proposal for a directive
Article 3 – paragraph 1 – point d
Article 3 – paragraph 1 – point d
(d) a supplier pays for the wastage of food products that occurs owhen the agricultural and food products are in the buyer's premisesownership and that is not caused by the negligence or fault of the supplier.
Amendment 393 #
Proposal for a directive
Article 3 – paragraph 1 – point d d (new)
Article 3 – paragraph 1 – point d d (new)
Amendment 402 #
Proposal for a directive
Article 3 – paragraph 1 – point d c (new)
Article 3 – paragraph 1 – point d c (new)
(dc) A buyer shares with third parties or misuses, intentionally or otherwise, confidential information relating to the supply agreement, including sensitive trade information shared by the supplier with the buyer;
Amendment 463 #
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 if they are the result of an abuse of the supplier's economic dependence on the buyer, which puts the buyer in a position to force the supplier to accept those terms:
Amendment 489 #
Proposal for a directive
Article 3 – paragraph 2 – point c a (new)
Article 3 – paragraph 2 – point c a (new)
(ca) a supplier pays for the buyer's trade activities, when foodstuffs are sold for a lower price than the effective purchase price, including tax and transport costs;
Amendment 506 #
Proposal for a directive
Article 3 – paragraph 3 a (new)
Article 3 – paragraph 3 a (new)
3a. Where a complaint relating to a practice referred to in paragraph 2 of this Article is submitted to an enforcement authority, the burden of proof that the supply agreement clearly and unambiguously covers the trade practices in question falls on the buyer.
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 510 #
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,: (i) this payment must strictly be linked to the service provided and the costs incurred by the buyer; (ii) the buyer shall 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 estimate.
Amendment 519 #
Proposal for a directive
Article 3 a (new)
Article 3 a (new)
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 534 #
Proposal for a directive
Article 5 – paragraph 1
Article 5 – paragraph 1
1. A supplierComplaints shall be address a complaint to theed to the enforcement authority of the Member State in which the supplier is located. The enforcement authority which receives the complaint shall forward it for investigation to the competent enforcement authority of the Member State in which the buyer suspected to haveof engageding in a prohibited trading practice is established. When the buyer is established outside the Union, the competent enforcement authority that receives the complaint must take action.
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 572 #
Proposal for a directive
Article 5 – paragraph 3
Article 5 – paragraph 3
3. The enforcement authority shall ensure during the investigation, 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.
Amendment 591 #
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, including anonymous complaints or complaints from whistleblowers;
Amendment 603 #
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 fineand if necessary other dissuasive sanctions on the natural or legal person found to have made an infringement of this Directive, in accordance with national law. The fine and, if necessary, the sanction shall be effective, proportionate and dissuasive taking into account the nature, duration and gravity of the infringement as well as any previous and repeated infringements of this Directive;
Amendment 617 #
Proposal for a directive
Article 6 – paragraph 1 – point f
Article 6 – paragraph 1 – point f
(f) to inform buyers and suppliers about itspublish a review of its enforcement actions and activities, by way of annual reports, which shall inter alia describe the number of complaints received and the investigations initiated and closed by it, and those still underway. For each investigation, the report shall contain a summary description of the matter and the outcome of the investigation, in line with the confidentiality rules established under national law.
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 653 #
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 market, including the free circulation of goods and services, the freedom of establishment, the principle of non- discrimination, and the right to access to an impartial and independent judicial review.
Amendment 654 #
Proposal for a directive
Article 8 – paragraph 1 a (new)
Article 8 – paragraph 1 a (new)
Member States must inform the Commission of any new national rules that go beyond the provisions of this directive within three months of their adoption.
Amendment 657 #
Proposal for a directive
Article 8 a (new)
Article 8 a (new)
Amendment 667 #
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, 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.
Amendment 669 #
Proposal for a directive
Article 11 – paragraph 1 a (new)
Article 11 – paragraph 1 a (new)