Forslag til europaparlaments- og rådsdirektiv om urimelig handelspraksis i næringslivsforhold (B2B) i matkjeden
Proposal for Directive of the European Parliament and of the Council on unfair trading practices in business-to-business relationships in the food supply chain
Omtale publisert i Stortingets EU/EØS-nytt 3.10.2018
Red. anm.: Forslag er hjemlet i EUs landbrukspolitikk og er av Kommisjonen ikke merket som EØS-relevant.
BAKGRUNN (fra kommisjonsforslaget, engelsk utgave)
Reasons for and objectives of the proposal
Farmers, processors, traders, wholesalers, retailers and consumers are all actors in the food supply chain. Smaller operators in the food supply chain are more prone to face unfair trading practices (UTPs) due to their, in general, weak bargaining power in comparison to the large operators in the chain. Agricultural producers are particularly vulnerable to UTPs as they often lack bargaining power that would match that of their downstream partners that buy their products. This is because alternatives for getting their products to consumers are limited.
There is a wide-spread consensus that UTPs occur throughout the food supply chain. Three Commission communications since 2009 have focused on the food supply chain including UTPs.
In June 2016, a European Parliament resolution called on the Commission to submit a proposal for a Union legal framework concerning unfair trading practices. In December 2016, the Council invited the Commission to undertake, in a timely manner, an impact assessment with a view to proposing a Union legal framework or non-legislative measures to address unfair trading practices. In September 2016, the European Economic and Social Committee published a report calling on the Commission and the Member States to take swift action to prevent UTPs by establishing an EU harmonised network of enforcement authorities, so as to create a level playing field within the single market.
In its report from 2016 the Commission identified a number of areas for further improvement concerning both Member States’ UTP legislation and voluntary industry initiatives. The Commission committed to re-assessing the need for EU action to address UTPs in light of subsequent developments before the end of its mandate. The expectations about improvements were not fully met as is discussed in greater detail in the impact assessment (section 3.3).
When occurring, UTPs can put operators’ profits and margins under pressure, which can result in a misallocation of resources and even drive otherwise viable and competitive players out of business. For example, retroactive unilateral reductions of the contracted quantity for perishable goods equates to income foregone for an operator who may not easily find an alternative outlet for these goods. Late payments for perishable products after they are delivered and sold by the buyer constitute extra financial cost for the supplier. Possible obligations for suppliers to take back products not sold by the buyer after the suppliers and buyer may constitute an undue transfer of risk to suppliers that has repercussions on their security of planning and investment. Being forced to contribute to generic in-store promotional activities of distributors without drawing a commensurate benefit may unduly reduce a supplier’s margin.
In an agricultural policy environment that has become distinctly more market oriented, the good governance of the food supply chain has become more important for operators, in particular for agricultural producers. The proposal should ensure that these operators are able to compete on fair terms, thereby contributing to the overall efficiency of the chain. Unfair business conduct by operators wielding bargaining power that is not prohibited, or the existence of redress possibilities that lack effectiveness, are liable to undermine the economic viability of operators in the chain. Such weak governance is also likely to erode trust in the overall fairness and functioning of the food supply chain.
The food supply chain is a continuum of vertically inter-related markets. It is characterised by significant differences in relative bargaining power the between smaller and medium-sized enterprises and larger ones. The concentration levels at the stages downstream of primary production are high in all Member States. In some cases UTPs affect weaker producers, such as agricultural producers, even if they are not directly exposed to them, if UTP-induced costs are passed back along the food supply chain to the weakest link which is often the farmer. The negative effect of a UTP that occurs downstream, for instance between a retailer and a processor, thus can cascade backward in the chain to ultimately reach farmers.
Specific UTP rules in 20 Member States bear witness to the significant concern about UTPs at the national level. However, the heterogeneity in the treatment of UTPs in Member States is significant. In certain Member States, there is no, or ineffective specific protection against UTPs.
General (contract) law may prohibit certain practices and those who have faced UTPs have the option to seek redress before a court of civil law. But general contract law, to the extent that it covers the practice at issue, may de facto be difficult to enforce: a weaker party to a commercial transaction is often unwilling to lodge a complaint for fear of compromising an existing commercial relationship with the stronger party (“fear factor”).
The divergence of Member States’ regulatory approaches to UTPs results furthermore in dissimilar conditions of competition for operators. Under the current piecemeal approach, the extent of protection from UTPs that operators are granted depends on the Member State. Divergence of rules is liable to lead to differences in the conditions of competition.
There is also very little coordination among Member States’ enforcement authorities, due to the absence of formal coordination structures at EU level. Such coordination could improve the enforcement practices in Member States.
The voluntary Supply Chain Initiative (SCI) is a private industry initiative that seeks to govern UTPs. Similar national initiatives exist in Member States alongside national mandatory measures. Since its inception, the SCI has played an important role in Member States in raising awareness about UTPs and fostering fairness of business conduct. It has been evolving and most recently nominated an independent Chair. It provides a forum for early and non-litigious dispute resolution. The SCI is, however, unlikely to develop into a comprehensive governance framework that would make public governance measures including enforcement superfluous. Participation in the SCI is voluntary and the SCI so far does not cover all operators in the food supply chain. For instance, while retailers are members of the SCI retailer buying alliances do not participate in the SCI, nor do the organisations representing agricultural producers. The latter did not join the SCI since, in their view, it does not ensure sufficient confidentiality for complaining parties and does not provide for independent investigations or sanctions. However, organisations representing agricultural producers participate in national supply chain inititatives.
Certain limitations to a voluntary code may also be structural. The SCI has no capability of imposing sanctions, nor are decisions published (no deterrent effect). One-on-one disputes are not dealt with in a manner that would ensure the confidentiality of complaints, not even in the early stages of the procedure. Furthermore, there is no ability to carry out own initiative investigations. The concerns about effective enforcement account for the continued low level of participation of agricultural producers in the SCI. Moreover, a voluntary initiative cannot address, in and of itself, the fragmentation of UTP rules in Member States.
Accordingly, the present proposal for a Directive aims at reducing the occurrence of UTPs in the food supply chain by introducing a minimum common standard of protection across the EU that consists of a short list of specific prohibited UTPs. The protection covers small and medium-sized suppliers in the food supply chain insofar as they sell food products to buyers who are not small and medium-sized. This scope aims at contributing to a fair standard of living for the agricultural community, an objective of the common agricultural policy under Article 39 TFEU.
Provisions targeting minimum enforcement requirements applying to national competent authorities add to the deterrent character of the proposed regime. Last but not least, a coordination mechanism between enforcement authorities facilitated by the Commission will enable the exchange of data concerning the number and type of infringements investigations carried out and will also provide a forum for the exchange of best practices, with a view to improving the effectiveness of enforcement.
The proposed measures are complementary to measures existing in Member States and the code of conduct of the SCI (minimum harmonisation approach).