1. With a view to combating practices that grossly deviate from good commercial conduct, that are contrary to good faith and fair dealing and that are unilaterally imposed by one trading partner on another, this Directive establishes a minimum list of prohibited unfair trading practices in relations between buyers and suppliers in the agricultural and food supply chain and lays down minimum rules concerning the enforcement of those prohibitions and arrangements for coordination between enforcement authorities.
2. This Directive applies to certain unfair trading practices which occur in relation to sales of agricultural and food products by:
(a)
suppliers which have an annual turnover not exceeding EUR 2 000 000 to buyers which have an annual turnover of more than EUR 2 000 000;
(b)
suppliers which have an annual turnover of more than EUR 2 000 000 and not exceeding EUR 10 000 000 to buyers which have an annual turnover of more than EUR 10 000 000;
(c)
suppliers which have an annual turnover of more than EUR 10 000 000 and not exceeding EUR 50 000 000 to buyers which have an annual turnover of more than EUR 50 000 000;
(d)
suppliers which have an annual turnover of more than EUR 50 000 000 and not exceeding EUR 150 000 000 to buyers which have an annual turnover of more than EUR 150 000 000;
(e)
suppliers which have an annual turnover of more than EUR 150 000 000 and not exceeding EUR 350 000 000 to buyers which have an annual turnover of more than EUR 350 000 000.
The annual turnover of the suppliers and buyers referred to in points (a) to (e) of the first subparagraph shall be understood in accordance with the relevant parts of the Annex to Commission Recommendation 2003/361/EC (8) and in particular Articles 3, 4 and 6 thereof, including the definitions of ‘autonomous enterprise’, ‘partner enterprise’ and ‘linked enterprise’, and other issues relating to the annual turnover.
By way of derogation from the first subparagraph, this Directive applies in relation to sales of agricultural and food products by suppliers which have an annual turnover not exceeding EUR 350 000 000 to all buyers which are public authorities.
This Directive applies to sales where either the supplier or the buyer, or both, are established in the Union.
This Directive also applies to services, insofar as explicitly referred to in Article 3, provided by the buyer to the supplier.
This Directive does not apply to agreements between suppliers and consumers.
3. This Directive applies to supply agreements concluded after the date of application of the measures transposing this Directive in accordance with the second subparagraph of Article 13(1).
4. Supply agreements concluded before the date of publication of the measures transposing this Directive in accordance with the first subparagraph of Article 13(1) shall be brought into compliance with this Directive within 12 months after that date of publication.
Article 2 -
Definitions
For the purposes of this Directive, the following definitions apply:
(1)
‘agricultural and food products’ means products listed in Annex I to the TFEU as well as products not listed in that Annex, but processed for use as food using products listed in that Annex;
(2)
‘buyer’ means any natural or legal person, irrespective of that person's place of establishment, or any public authority in the Union, who buys agricultural and food products; the term ‘buyer’ may include a group of such natural and legal persons;
(3)
‘public authority’ means national, regional or local authorities, bodies governed by public law or associations formed by one or more such authorities or one or more such bodies governed by public law;
(4)
‘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 a group of such natural and legal persons, such as producer organisations, organisations of suppliers and associations of such organisations;
(5)
‘perishable agricultural and food products’ means agricultural and food products that by their nature or at their stage of processing are liable to become unfit for sale within 30 days after harvest, production or processing.
Article 3 -
Prohibition of unfair trading practices
1. Member States shall ensure that at least all the following unfair trading practices are prohibited:
(a)
the buyer pays the supplier,
(i)
where the supply agreement provides for the delivery of products on a regular basis:
—
for perishable agricultural and food products, later than 30 days after the end of an agreed delivery period in which deliveries have been made or later than 30 days after the date on which the amount payable for that delivery period is set, whichever of those two dates is the later;
—
for other agricultural and food products, later than 60 days after the end of an agreed delivery period in which deliveries have been made or later than 60 days after the date on which the amount payable for that delivery period is set, whichever of those two dates is the later;
for the purposes of the payment periods in this point, the agreed delivery periods shall in any event be considered not to exceed one month;
(ii)
where the supply agreement does not provide for the delivery of products on a regular basis:
—
for perishable agricultural and food products, later than 30 days after the date of delivery or later than 30 days after the date on which the amount payable is set, whichever of those two dates is the later;
—
for other agricultural and food products, later than 60 days after the date of delivery or later than 60 days after the date on which the amount payable is set, whichever of those two dates is the later.
Notwithstanding points (i) and (ii) of this point, where the buyer sets the amount payable:
—
the payment periods referred to in point (i) shall start to run from the end of an agreed delivery period in which the deliveries have been made; and
—
the payment periods referred to in point (ii) shall start to run from the date of delivery;
(b)
the buyer cancels orders of perishable agricultural and food products at such short notice that a supplier cannot reasonably be expected to find an alternative means of commercialising or using those products; notice of less than 30 days shall always be considered as short notice; Member States may set periods shorter than 30 days for specific sectors in duly justified cases;
(c)
the buyer unilaterally changes the terms of a supply agreement for agricultural and food products that concern the frequency, method, place, timing or volume of the supply or delivery of the agricultural and food products, the quality standards, the terms of payment or the prices, or as regards the provision of services insofar as these are explicitly referred to in paragraph 2;
(d)
the buyer requires payments from the supplier that are not related to the sale of the agricultural and food products of the supplier;
(e)
the buyer requires the supplier to pay for the deterioration or loss, or both, of agricultural and food products that occurs on the buyer's premises or after ownership has been transferred to the buyer, where such deterioration or loss is not caused by the negligence or fault of the supplier;
(f)
the buyer refuses to confirm in writing the terms of a supply agreement between the buyer and the supplier for which the supplier has asked for written confirmation; this shall not apply where the supply agreement concerns products to be delivered by a member of a producer organisation, including a cooperative, to the producer organisation of which the supplier is a member, if the statutes of that producer organisation or the rules and decisions provided for in, or derived from, those statutes contain provisions having similar effects to the terms of the supply agreement;
(g)
the buyer unlawfully acquires, uses or discloses the trade secrets of the supplier within the meaning of Directive (EU) 2016/943 of the European Parliament and of the Council (9);
(h)
the buyer threatens to carry out, or carries out, acts of commercial retaliation against the supplier if the supplier exercises its contractual or legal rights, including by filing a complaint with enforcement authorities or by cooperating with enforcement authorities during an investigation;
(i)
the buyer requires compensation from the supplier for the cost of examining customer complaints relating to the sale of the supplier's products despite the absence of negligence or fault on the part of the supplier.
The prohibition referred to in point (a) of the first subparagraph shall be without prejudice:
—
to the consequences of late payments and remedies as laid down in Directive 2011/7/EU, which shall apply, by way of derogation from the payment periods set out in that Directive, on the basis of the payment periods set out in this Directive;
—
to the option of a buyer and a supplier to agree on a value sharing clause within the meaning of Article 172a of Regulation (EU) No 1308/2013.
The prohibition referred to in point (a) of the first subparagraph shall not apply to payments:
—
made by a buyer to a supplier where such payments are made in the framework of the school scheme pursuant to Article 23 of Regulation (EU) No 1308/2013;
—
made by public entities providing healthcare in the meaning of point (b) of Article 4(4) of Directive 2011/7/EU:
—
under supply agreements between suppliers of grapes or must for wine production and their direct buyers, provided:
(i)
that the specific terms of payment for the sales transactions are included in standard contracts which have been made binding by the Member State pursuant to Article 164 of Regulation (EU) No 1308/2013 before 1 January 2019, and that this extension of the standard contracts is renewed by the Member States from that date without any significant changes to the terms of payment to the disadvantage of suppliers of grapes or must; and
(ii)
that the supply agreements between suppliers of grapes or must for wine production and their direct buyers are multiannual or become multiannual.
2. Member States shall ensure that at least all the following trading practices are prohibited, unless they have been previously agreed in clear and unambiguous terms in the supply agreement or in a subsequent agreement between the supplier and the buyer:
(a)
the buyer returns unsold agricultural and food products to the supplier without paying for those unsold products or without paying for the disposal of those products, or both;
(b)
the supplier is charged payment as a condition for stocking, displaying or listing its agricultural and food products, or of making such products available on the market;
(c)
the buyer requires the supplier to bear all or part of the cost of any discounts on agricultural and food products that are sold by the buyer as part of a promotion;
(d)
the buyer requires the supplier to pay for the advertising by the buyer of agricultural and food products;
(e)
the buyer requires the supplier to pay for the marketing by the buyer of agricultural and food products;
(f)
the buyer charges the supplier for staff for fitting-out premises used for the sale of the supplier's products.
Member States shall ensure that the trading practice referred to in point (c) of the first subparagraph is prohibited unless the buyer, prior to a promotion that is initiated by the buyer, specifies the period of the promotion and the expected quantity of the agricultural and food products to be ordered at the discounted price.
3. Where a payment is required by the buyer for the situations referred to in points (b), (c), (d), (e) or (f) of the first subparagraph of paragraph 2, if requested by the supplier, the buyer shall provide the supplier with an estimate in writing of the payments per unit or the overall payments, whichever is appropriate, and, insofar as the situations referred to in points (b), (d), (e) or (f) of the first subparagraph of paragraph 2 are concerned, shall also provide, in writing, an estimate of the cost to the supplier and the basis for that estimate.
4. Member States shall ensure that the prohibitions laid down in paragraphs 1 and 2 constitute overriding mandatory provisions which are applicable to any situation falling within the scope of those prohibitions, irrespective of the law that would otherwise be applicable to the supply agreement between the parties.
Article 4 -
Designated enforcement authorities
1. Each Member State shall designate one or more authorities to enforce the prohibitions laid down in Article 3 at national level (‘enforcement authority’), and shall inform the Commission of that designation.
2. If a Member State designates more than one enforcement authority in its territory, it shall designate a single contact point for both cooperation among the enforcement authorities and cooperation with the Commission.
Article 5 -
Complaints and confidentiality
1. Suppliers may address complaints either to the enforcement authority of the Member State in which the supplier is established or to the enforcement authority of the Member State in which the buyer that is suspected to have engaged in a prohibited trading practice is established. The enforcement authority to which the complaint is addressed shall be competent to enforce the prohibitions laid down in Article 3.
2. Producer organisations, other organisations of suppliers and associations of such organisations, shall have the right to submit a complaint at the request of one or more of their members or, where appropriate, at the request of one or more members of their member organisations, where those members consider that they have been affected by a prohibited trading practice. Other organisations that have a legitimate interest in representing suppliers shall have the right to submit complaints, at the request of a supplier, and in the interest of that supplier, provided that such organisations are independent non-profit-making legal persons.
3. Member States shall ensure that, where the complainant so requests, the enforcement authority shall take the necessary measures for the appropriate protection of the identity of the complainant or the members or suppliers referred to in paragraph 2 and for the appropriate protection of any other information in respect of which the complainant considers that the disclosure of such information would be harmful to the interests of the complainant or of those members or suppliers. The complainant shall identify any information for which it requests confidentiality.
4. Member States shall ensure that the enforcement authority that receives the complaint shall inform the complainant within a reasonable period of time after the receipt of the complaint of how it intends to follow up on the complaint.
5. Member States shall ensure that, where an enforcement authority considers that there are insufficient grounds for acting on a complaint, it shall inform the complainant of the reasons therefor within a reasonable period of time after the receipt of the complaint.
6. Member States shall ensure that, where an enforcement authority considers that there are sufficient grounds for acting on a complaint, it shall initiate, conduct and conclude an investigation of the complaint within a reasonable period of time.
7. Member States shall ensure that, where an enforcement authority finds that a buyer has infringed the prohibitions referred to in Article 3, it shall require the buyer to bring the prohibited trading practice to an end.
Article 6 -
Powers of enforcement authorities
1. Member States shall ensure that each of their enforcement authorities has the necessary resources and expertise to perform its duties, and shall confer on it the following powers:
(a)
the power to initiate and conduct investigations on its own initiative or on the basis of a complaint;
(b)
the power to require buyers and suppliers to provide all necessary information in order to conduct investigations of prohibited trading practices;
(c)
the power to carry out unannounced on-site inspections within the framework of its investigations, in accordance with national rules and procedures;
(d)
the power to take decisions finding an infringement of the prohibitions laid down in Article 3 and requiring the buyer to bring the prohibited trading practice to an end; the authority may abstain from taking any such decision, if that decision would risk revealing the identity of a complainant or would risk disclosing any other information in respect of which the complainant considers that such disclosure would be harmful to its interests, and provided that the complainant has identified that information in accordance with Article 5(3);
(e)
the power to impose, or initiate proceedings for the imposition of, fines and other equally effective penalties and interim measures on the author of the infringement, in accordance with national rules and procedures;
(f)
the power to publish its decisions taken under points (d) and (e) on a regular basis.
The penalties referred to in point (e) of the first subparagraph shall be effective, proportionate and dissuasive, taking into account the nature, duration, recurrence and gravity of the infringement.
2. Member States shall ensure that the exercise of the powers referred to in paragraph 1 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 in cases where the complainant requests confidential treatment of information pursuant to Article 5(3).
Article 7 -
Alternative dispute resolution
Without prejudice to the right of suppliers to submit complaints under Article 5, and the powers of enforcement authorities under Article 6, Member States may promote the voluntary use of effective and independent alternative dispute resolution mechanisms, such as mediation, with a view to the settlement of disputes between suppliers and buyers regarding the use of unfair trading practices by the buyer.
Article 8 -
Cooperation among enforcement authorities
1. Member States shall ensure that enforcement authorities cooperate effectively with each other and with the Commission, and that they provide each other with mutual assistance in investigations that have a cross-border dimension.
2. The enforcement authorities shall meet at least once per year to discuss the application of this Directive, on the basis of the annual reports referred to in Article 10(2). The enforcement authorities shall discuss best practices, new cases and new developments in the area of unfair trading practices in the agricultural and food supply chain, and shall exchange information, in particular on the implementing measures that they have adopted in accordance with this Directive and on their enforcement practices. The enforcement authorities may adopt recommendations in order to encourage the consistent application of this Directive and to improve enforcement. The Commission shall facilitate those meetings.
3. The Commission shall establish and manage a website that allows the exchange of information among the enforcement authorities and the Commission, in particular in relation to the annual meetings. The Commission shall establish a public website that provides the contact details of the designated enforcement authorities and links to websites of the national enforcement authorities or other authorities of Member States that provide information about the measures transposing this Directive referred to in Article 13(1).
Article 9 -
National rules
1. With a view to ensuring a higher level of protection, Member States may maintain or introduce stricter rules aimed at combating unfair trading practices than those laid down by this Directive, provided that such national rules are compatible with the rules on the functioning of the internal market.
2. This Directive shall be without prejudice to national rules aimed at combating unfair trading practices that are not within the scope of this Directive, provided that such rules are compatible with the rules on the functioning of the internal market.
Article 10 -
Reporting
1. Member States shall ensure that their enforcement authorities publish an annual report about their activities falling within the scope of this Directive, which shall, inter alia, state the number of complaints received and the number of investigations opened or closed during the previous year. For each closed investigation, the report shall contain a summary description of the matter, the outcome of the investigation and, where applicable, the decision taken, subject to the confidentiality requirements laid down in Article 5(3).
2. By 15 March of each year, Member States shall send to the Commission a report on unfair trading practices in business-to-business relationships in the agricultural and 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 during the previous year.
3. The Commission may adopt implementing acts laying down:
(a)
rules on the information necessary for the application of paragraph 2;
(b)
arrangements for the management of the information to be sent by Member States to the Commission and rules on the content and form of such information;
(c)
arrangements for transmitting, or for making information and documents available, to the Member States, international organisations, the competent authorities in third countries, or the public, subject to the protection of personal data and the legitimate interests of agricultural producers and enterprises in the protection of their business secrets.
Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 11(2).
Article 11 -
Committee procedure
1. The Commission shall be assisted by the Committee for the Common Organisation of the Agricultural Markets established by Article 229 of Regulation (EU) No 1308/2013. That Committee shall be a committee within the meaning of Regulation (EU) No 182/2011.
2. Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply.
Article 12 -
Evaluation
1. By 1 November 2025, the Commission shall carry out the first evaluation of this Directive and shall present a report on the main findings of that evaluation to the European Parliament and to the Council, as well as to the European Economic and Social Committee and the Committee of the Regions. Such report shall be accompanied, if appropriate, by legislative proposals.
2. That evaluation shall assess at least:
(a)
the effectiveness of the measures implemented at national level aimed at combating unfair trading practices in the agricultural and food supply chain;
(b)
the effectiveness of cooperation among competent enforcement authorities and, where appropriate, shall identify ways to improve that cooperation.
3. The Commission shall base the report referred to in paragraph 1 on the annual reports referred to in Article 10(2). If necessary, the Commission may request additional information from Member States, including information on the effectiveness of the measures that were implemented at national level and the effectiveness of cooperation and mutual assistance.
4. By 1 November 2021, the Commission shall present an interim report on the state of the transposition and implementation of this Directive to the European Parliament and to the Council, as well as to the European Economic and Social Committee and the Committee of the Regions.
Article 13 -
Transposition
1. Member States shall adopt and publish, by 1 May 2021, the laws, regulations and administrative provisions necessary to comply with this Directive. They shall immediately communicate the text of those measures to the Commission.
They shall apply those measures not later than 1 November 2021.
When Member States adopt those measures, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.
2. Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.
Article 14 -
Entry into force
This Directive shall enter into force on the fifth day following that of its publication in the Official Journal of the European Union.
