Cooperation among enforcement authorities regarding unfair trading practices in the agri-food supply chain

The European Parliament adopted, by 555 votes to 0, with 26 abstentions, a legislative resolution on the proposal for a regulation of the European Parliament and of the Council on cooperation among enforcement authorities responsible for the enforcement of Directive (EU) 2019/633 on unfair trading practices in business-to-business relationships in the agricultural and food supply chain.

Parliament adopted its position at first reading by amending the Commission's proposal.

Object

The proposed regulation aims to combat 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. To this end, it lays down certain rules under which enforcement authorities designated by their Member States as responsible for the enforcement of the prohibition of unfair trading practices in business-to-business relationships in the agricultural and food supply chain under Directive (EU) 2019/633 cooperate and coordinate actions with each other to ensure the effectiveness of that Directive.

The regulation is based on the general principle that enforcement authorities should cooperate with each other to prevent or stop unfair trading practices with a cross-border dimension occurring on their territories.

Information confidentiality

The amended text introduces a new provision stipulating that, for the purposes of the regulation, the enforcement authorities should have the power to exchange information and use as evidence any factual or legal element, including confidential information. This information may only be used as evidence for the purposes of enforcing the regulation and for the purpose for which it was collected by the requested enforcement authority. The information should only be used by the enforcement authorities with due regard to the legitimate interests of a natural or legal person, including the protection of trade secrets and intellectual property rights.

Requests for information

At the request of an applicant enforcement authority, a requested enforcement authority should, without delay, and at the latest 90 days (extendable by 30 days by mutual agreement), provide the applicant enforcement authority with the information requested to establish whether an unfair trading practice with a cross-border dimension has occurred.

Where the requested enforcement authority is not in possession of all the necessary information, its reply to that request may contain only partial information or state the absence of the requested information. The requested enforcement authority may decide to collect the missing information, in which case it should inform the applicant enforcement authority of its decision and should share the information collected with that authority.

At the request and on behalf of an applicant enforcement authority, the requested enforcement authority should take investigative measures, in accordance with the powers set out in Directive (EU) 2019/633 and in accordance with its national law, in order to determine whether an unfair trading practice with a cross-border dimension has occurred or is occurring.

Costs

Under the new rules, enforcement authorities should not impose any fees on suppliers to recover costs related to the cross-border dimension of an unfair trading practice. They should (with some exceptions) waive all claims between them for the reimbursement of costs incurred in applying this Regulation.

However, the requested enforcement authority may request the applicant enforcement authority to bear reasonable additional costs in full or in part, including translation costs, labour costs and administrative costs. In such cases, the applicant enforcement authority should bear those costs, as requested.

The requested enforcement authority may recover the full costs incurred from the payment of fines collected on behalf of the applicant enforcement authority. If the amount of the fines does not cover the reasonable additional costs incurred, or if the requested enforcement authority is unsuccessful in collecting the fines, the requested enforcement authority may request the applicant enforcement authority to bear the costs incurred in full or in part.

Procedure for requests for mutual assistance

The applicant enforcement authority should, when making a request for mutual assistance state as the legal basis for that request this Regulation and provide any additional relevant information necessary to enable the requested enforcement authority to fulfil the request.

A requested enforcement authority may refuse to comply with a request for enforcement measures only if, having consulted with the applicant enforcement authority, if it appears that criminal investigations or judicial proceedings have already been initiated, or a judgment has been given, against the same buyer in respect of the same unfair trading practice that involves the same supplier and the same period of the unfair trading practice covered by those criminal investigations or judicial proceedings, or a court settlement has been reached with the same buyer in respect of the same unfair trading practice, before the judicial authorities in the Member State of the requested enforcement authority.

Alert system

An enforcement authority should without delay alert the Commission and all other enforcement authorities that a widespread unfair trading practice with a cross-border dimension might be occurring, regardless of whether it is occurring only within the Union or both within the Union and in one or more third countries.

Cooperation in relation to suppliers or buyers established outside the Union

When an unfair commercial practice involves suppliers or buyers established outside the European Union, the enforcement authorities may:

- request information from an enforcement authority of another Member State to establish whether an unfair trading practice has occurred or is occurring in the Member State of the applicant enforcement authority;

- alert the Commission and other enforcement authorities concerned when it suspects that an unfair trading practice towards a supplier or by a buyer established outside the Union is occurring and that that unfair trading practice might concern buyers or suppliers established in at least three Member States.

Where the buyer established outside the Union fails to cooperate, the enforcement authority should without delay alert the Commission and all other enforcement authorities that that buyer has failed to designate a contact person responsible for the Union. The Commission may supplement the alert with any information that is likely to facilitate rapid, appropriate action by enforcement authorities.