Activities of Marijana PETIR related to 2018/0082(COD)
Plenary speeches (1)
Unfair trading practices in business-to-business relationships in the food supply chain (debate) HR
Amendments (58)
Amendment 71 #
Proposal for a directive
Recital 5
Recital 5
(5) The number and size of operators vary across the different stages of the 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 tradingAll suppliers, irrespective of their commercial strength, are exposed to unfair commercial practices, are innd these are particularly 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 87 #
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 or food products, including agricultural cooperatives, 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/EC1212. 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 family farms and 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 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 140 #
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 food supply chain. Where a complainant requests that his identity remain confidential because of fear of retaliation, the enforcement authorities of the Member States shouldmust honour such a request.
Amendment 151 #
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 or of family farms, 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 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 165 #
Proposal for a directive
Recital 15 a (new)
Recital 15 a (new)
(15a) The enforcement authorities must apply dissuasive and proportionate penalties on those who violate the rules laid down in this Directive. Repeated violations of the rules by a commercial entity must be taken into account when determining the penalty.
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 230 #
Proposal for a directive
Article 2 – paragraph 1 – point –a (new)
Article 2 – paragraph 1 – point –a (new)
(-a) 'Unfair trading practices' are contractual provisions and business practices that are imposed on the supplier by the customer, using their significant negotiating power over the supplier, and that are contrary to the principles of conscientiousness and fairness, the principle of equal treatment of the parties, the principle of equal value of performance and good business practice in the production of and/or trade in agricultural or food products, including any undue and disproportionate risk transfer to the lesser of the contracting parties.
Amendment 236 #
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 that person’s place of establishment, who buys agricultural or food products by way of trade within the EU. The term "buyer" may include a group of such natural and legal persons;
Amendment 248 #
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 agricultural cooperatives, producer organisations and associations of producer organisations;
Amendment 274 #
Proposal for a directive
Article 2 – paragraph 1 – point d
Article 2 – paragraph 1 – point d
(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 288 #
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 their intended use or human consumption unless they are stored, treated, packaged or otherwise conserved to prevent them from becoming unfit.
Amendment 294 #
Proposal for a directive
Article 2 – paragraph 1 – point b a (new)
Article 2 – paragraph 1 – point b a (new)
(b a) The "supply agreement" between the supplier and the buyer shall contain all provisions relevant to the business relationship of the contracting parties and must include, in particular, provisions on: - the price of the product and/or the manner of determining or calculating the price, - the quality and type of the agricultural or food product supplied to the trader, - the terms and deadlines for payment for the supplied agricultural or food product – the payment deadline may not be longer than 30 days from the date of receipt of the agricultural or food product being supplied, - the terms and deadlines for supply of the agricultural or food products covered by the contract, - the place of supply of the agricultural or food product, and - the duration of the agreement.
Amendment 316 #
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 agricultural or food products later than 30 calendar days after the receipt of the supplier’s invoice or later than 30 calendar days after the date of delivery of the perishable agricultural or food products, whichever is the later. This prohibition shall be without prejudice:
Amendment 336 #
Proposal for a directive
Article 3 – paragraph 1 – point a a (new)
Article 3 – paragraph 1 – point a a (new)
(a a) a buyer pays a supplier for agricultural or food products later than 30 calendar days after the receipt of the supplier’s invoice or later than 30 calendar days after the date of delivery of the agricultural or food products, whichever is the 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 a) of Regulation (EU) No 1308/2013 of the European Parliament and of the Council1a. _________________ 1a Regulation (EU) No 1308/2013 of the European Parliament and of the Council of 17 December 2013 establishing a common organisation of the markets in agricultural products and repealing Council Regulations (EEC) No 922/72, (EEC) No 234/79, (EC) No 1037/2001 and (EC) No 1234/2007 (OJ L 347, 20.12.2013, p. 671).
Amendment 343 #
Proposal for a directive
Article 3 – paragraph 1 – point b
Article 3 – paragraph 1 – point b
(b) a buyer cancels orders of perishable agricultural or food products at such short notice that a supplier cannot reasonably be expected to find an alternative to commercialise or use these products;
Amendment 348 #
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 agricultural or food products;
Amendment 369 #
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 on the buyer's premises and that is not caused by the negligence or fault of the supplier.
Amendment 375 #
Proposal for a directive
Article 3 – paragraph 1 – point d a (new)
Article 3 – paragraph 1 – point d a (new)
(da) A buyer sells certain products at a loss as a marketing mechanism and the loss or cost is ultimately borne by 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 407 #
Proposal for a directive
Article 3 – paragraph 1 – point d a (new)
Article 3 – paragraph 1 – point d a (new)
(da) a buyer unilaterally terminates the supply agreement;
Amendment 413 #
Proposal for a directive
Article 3 – paragraph 1 – point d b (new)
Article 3 – paragraph 1 – point d b (new)
(db) a buyer reduces, in a non- transparent manner, the quantity and/or value of agricultural or food products of a standard quality;
Amendment 418 #
Proposal for a directive
Article 3 – paragraph 1 – point d c (new)
Article 3 – paragraph 1 – point d c (new)
(dc) a buyer makes business cooperation and the conclusion of a supply agreement conditional upon compensation in goods and services;
Amendment 423 #
Proposal for a directive
Article 3 – paragraph 1 – point d d (new)
Article 3 – paragraph 1 – point d d (new)
(dd) a buyer charges the supplier for wastage, spillage, breakage and theft of products after delivering agricultural or food products, thus transferring the business risk to the supplier;
Amendment 428 #
Proposal for a directive
Article 3 – paragraph 1 – point d e (new)
Article 3 – paragraph 1 – point d e (new)
(de) a buyer provides a blank promissory note for the transferred raw materials and the supplier is not obliged to issue insurance for the transferred but as yet unpaid for agricultural or food products;
Amendment 430 #
Proposal for a directive
Article 3 – paragraph 1 – point d f (new)
Article 3 – paragraph 1 – point d f (new)
(df) a buyer, by way of a supply agreement, obliges the supplier not to sell agricultural or food products to other buyers and/or processors at lower prices than those paid by the buyer and/or processor;
Amendment 432 #
Proposal for a directive
Article 3 – paragraph 1 – point d g (new)
Article 3 – paragraph 1 – point d g (new)
(dg) a buyer charges a fee for the inclusion of the supplier's agricultural or food products;
Amendment 433 #
Proposal for a directive
Article 3 – paragraph 1 – point d h (new)
Article 3 – paragraph 1 – point d h (new)
(dh) a buyer returns the supplied but unsold products, charges for the disposal of such products, charges the supplier for unused products that have expired – except in the case of products that are first supplied to the trader – as well as for products which the supplier had specifically requested be sold and which the supplier had been warned in writing may reach their expiry date owing to poor turnover;
Amendment 435 #
Proposal for a directive
Article 3 – paragraph 1 – point d i (new)
Article 3 – paragraph 1 – point d i (new)
(di) a buyer charges a fee for the delivery of the agricultural or food products outside the agreed delivery point;
Amendment 436 #
Proposal for a directive
Article 3 – paragraph 1 – point d j (new)
Article 3 – paragraph 1 – point d j (new)
(dj) a buyer charges a fee for storage and handling after delivery of the agricultural or food product;
Amendment 437 #
Proposal for a directive
Article 3 – paragraph 1 – point d k (new)
Article 3 – paragraph 1 – point d k (new)
(dk) a buyer charges a fee for expanding the sales network, improving (redesigning) existing sales points, expanding storage capacity or expanding the distribution network;
Amendment 438 #
Proposal for a directive
Article 3 – paragraph 1 – point d l (new)
Article 3 – paragraph 1 – point d l (new)
(dl) a buyer makes the conclusion or extension of a supply agreement and receipt of delivery of agricultural or food products which are the subject of the supply agreement conditional upon a demand for the production and delivery of agricultural or food products that may be regarded as interchangeable with the contracted or delivered products (the trader’s brand);
Amendment 439 #
Proposal for a directive
Article 3 – paragraph 1 – point d m (new)
Article 3 – paragraph 1 – point d m (new)
(dm) a buyer charges a fee for services not provided, or for services rendered although not contracted between the contracting parties;
Amendment 440 #
Proposal for a directive
Article 3 – paragraph 1 – point d n (new)
Article 3 – paragraph 1 – point d n (new)
(dn) a buyer charges a fee for reduced turnover, sales or supplier's margin due to lower sales of a particular agricultural or food product;
Amendment 441 #
Proposal for a directive
Article 3 – paragraph 1 – point d o (new)
Article 3 – paragraph 1 – point d o (new)
(do) a buyer sells agricultural or food products to the final consumer at a price lower than any purchase price in the supply chain of the given product that is subject to VAT, except in cases of products that are approaching their expiry date, withdrawal of the agricultural or food product from the range or full clearance due to the closure of a sales facility;
Amendment 442 #
Proposal for a directive
Article 3 – paragraph 1 – point d p (new)
Article 3 – paragraph 1 – point d p (new)
(dp) a buyer negotiates a market research fee;
Amendment 443 #
Proposal for a directive
Article 3 – paragraph 1 – point d q (new)
Article 3 – paragraph 1 – point d q (new)
(dq) a buyer makes the conclusion of a supply agreement and business cooperation conditional upon imposing the obligation to participate in discounts or sales by reducing the purchase price at the expense of the supplier;
Amendment 444 #
Proposal for a directive
Article 3 – paragraph 1 – point d r (new)
Article 3 – paragraph 1 – point d r (new)
(dr) a buyer charges a fee for conclusion of a supply agreement with the supplier which is disproportionate to the administrative costs the supplier must bear;
Amendment 464 #
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 outcome of conditions being imposed as a result of the supplier's economic dependence on the buyer:
Amendment 473 #
Proposal for a directive
Article 3 – paragraph 2 – point a
Article 3 – paragraph 2 – point a
(a) a buyer returns unsold agricultural and food products to a supplier;
Amendment 475 #
Proposal for a directive
Article 3 – paragraph 2 – point a a (new)
Article 3 – paragraph 2 – point a a (new)
(aa) a buyer refuses to accept or take over the contracted quantity of agricultural or food products in accordance with the agreed purchase schedule, i.e. at the maturity of the obligation for the supplier to deliver, except in justified cases stipulated in the supply agreement;
Amendment 476 #
Proposal for a directive
Article 3 – paragraph 2 – point a b (new)
Article 3 – paragraph 2 – point a b (new)
(ab) a buyer does not want to take over the contracted and produced quantities of agricultural or food products of the brands, except in justified cases stipulated by the supply agreement;
Amendment 477 #
Proposal for a directive
Article 3 – paragraph 2 – point a c (new)
Article 3 – paragraph 2 – point a c (new)
(ac) a buyer charges a fee for data on the sale of the supplier's products collected at cash registers at the point of sale, unless the supplier expressly requests that information;
Amendment 478 #
Proposal for a directive
Article 3 – paragraph 2 – point a d (new)
Article 3 – paragraph 2 – point a d (new)
(ad) the buyer removes products from the list of contracted products that the supplier delivers to the customer or significantly reduces an order of a particular agricultural or food product without prior written notice provided within the time period specified in the contract, or within a time limit which may not be shorter than 30 days in cases where the deadline is not stipulated in the contract;
Amendment 479 #
Proposal for a directive
Article 3 – paragraph 2 – point b
Article 3 – paragraph 2 – point b
(b) a buyer charges a supplier paymenta fee as a condition for the stocking, displaying or listing food products of the supplierand/or accommodating a supplier’s agricultural or food products on the shelves of the buyer’s premises, unless the supplier explicitly requires the purchaser to stock, display and/or accommodate its product on a specific shelf at the buyer’s point of sale;
Amendment 486 #
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 food products to be ordered;
Amendment 493 #
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 516 #
Proposal for a directive
Article 3 – paragraph 4 a (new)
Article 3 – paragraph 4 a (new)
4a. Member States shall ensure that contractual terms or practices that rule out interest for late payment are prohibited under the provisions of Article 7 of Directive 2011/7/EU.
Amendment 581 #
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 the complainant without delay about the reasons.
Amendment 595 #
Proposal for a directive
Article 6 – paragraph 1 – point b
Article 6 – paragraph 1 – point b
(b) to require buyers and suppliers to provide all necessary information in order to carry out investigations on the prohibited trading practices that occurred in the commercial relationship and to assess whether they are prohibited or deviate from good trading practices;
Amendment 609 #
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; repetition of the infringement by the same buyer shall be considered for the purpose of determining the penalty;
Amendment 616 #
Proposal for a directive
Article 6 – paragraph 1 – point e
Article 6 – paragraph 1 – point e
(e) to publish its decisions relating to points (c) and (d), including the value of the fine and, where possible, to protect the confidentiality of the complainant if it so requests;
Amendment 619 #
Proposal for a directive
Article 6 – paragraph 1 – point f
Article 6 – paragraph 1 – point f
(f) to inform buyers and suppliers about its activities, by way of annual reports, which shall inter alia describe the number of complaints received and the investigations initiated and closed by it. For each investigation, the report shall contain a summary description of the matter and the outcome of the investigatio, the conclusions of the investigation and information on the outcome of the procedure as well as the decision taken.
Amendment 632 #
Proposal for a directive
Article 7 – paragraph 1 a (new)
Article 7 – paragraph 1 a (new)
1a. Procedures with a cross-border dimension shall be carried out by the competent authority of the Member State in which the supplier is established.
Amendment 636 #
Proposal for a directive
Article 7 – paragraph 2
Article 7 – paragraph 2
2. The enforcement authorities shall meet once per year, and if necessary more often, to discuss the application of this Directive on 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 meetings and shall share the facts established.
Amendment 658 #
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 application of the Directive, with particular emphasis on unfair trading practices in business-to-business relationships in the 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.