Toelichting bij COM(2024)576 - - Hoofdinhoud
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| dossier | COM(2024)576 - . |
|---|---|
| bron | COM(2024)576 |
| datum | 10-12-2024 |
1. CONTEXT OF THE PROPOSAL
• Reasons for and objectives of the proposal
Directive (EU) 2019/6330 (the Directive) required Member States to designate enforcement authorities to ensure the effective enforcement of the prohibitions laid down in Article 3 of the Directive. The enforcement authorities can act either on their own initiative or on the basis of complaints by parties affected by unfair trading practices in the agricultural and food supply chain.
The Directive also introduced rules related to the powers of enforcement authorities ensuring that those authorities can investigate, collect information and order the termination of an unfair trading practice (Article 6 of the Directive).
In addition, the Directive required the enforcement authorities to cooperate effectively with each other and with the Commission, and to provide each other with mutual assistance in investigations that have a cross-border dimension (Article 8 of the Directive).
The experience of enforcement authorities is that gathering information, finding an infringement and imposing and enforcing fines and other equally effective penalties can be difficult where the buyer is located in another Member State. The ability of the enforcement authorities to cooperate in such cases should therefore be strengthened.
Closing the enforcement gap aims a strengthening farmers’ position in the supply chain. To address this challenge the Commission put forward a reflection paper on 15 March 2024 in which it announced a set of measures intended to enhance the position of farmers in the food supply chain. A stand-alone legal act introducing new rules on cross-border enforcement of the Directive was included in the set of measures that the Commission announced.
The Political Guidelines for the next European Commission 2024-2029 commit to strengthen farmers’ position and further protect them against unfair trading practices. Moreover, the Strategic Dialogue on the Future of EU Agriculture, announced by the President of the European Commission in her State of the Union Address on September 13th 2023 and launched in January 2024, which brought together 29 major stakeholders from the European agri-food sectors, civil society, rural communities and academia in its final report0 called for proactive steps both at European and national level inter alia to better address unfair trading practices.
The Report on the Strategic Dialogue on the Future of EU Agriculture included recommendations for an effective, balanced and proportionate framework to address unfair trading practices, among others, the effective enforcement of unfair trading practices legislation, the cooperation among enforcement authorities in cross-border cases, including a common online platform to share investigations and information on cases, as well as the need for the enforcement authorities to have adequate and proportionate resources to enforce the legislation.
• Consistency with existing policy provisions in the policy area
The proposal complements the Directive with the view to ensuring that the enforcement authorities have the necessary tools to gather information, find an infringement and impose and enforce fines and other equally effective penalties against buyers located in another Member State.
The proposal does not interfere with the ongoing evaluation of the Directive that the Commission is conducting in line with its legal obligation under the Directive itself or prejudge the result of that evaluation.
• Consistency with other Union policies
As explained in the explanatory memorandum of the proposal for what became the Directive, competition law has a different scope from rules on unfair trading practices, as unfair trading practices are unilateral practices that do not, in most cases, involve the existence of a dominant position in a given market or an abuse of that position.
Accordingly, the rules in this proposal laying down measures solely for enforcement authorities designated under the Directive are compatible and complementary to the EU competition rules.
While the EU has also adopted rules on cooperation between national authorities responsible for the enforcement of consumer protection laws0, the scope of those rules is different to the rules in this proposal, since the rules on consumer protection apply to business-to-consumer (B2C) situations and do not as such, cover business-to-business (B2B) situations, although Member States may choose to extend their scope.
2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY
• Legal basis
This proposal is based Article 43(2) TFEU because it complements the Directive, which is itself based on Article 43(2) TFEU.
• Subsidiarity (for non-exclusive competence)
This proposal concerns unfair trading practices with a cross-border dimension. The cross-border dimension of the enforcement of the rules on unfair trading practices cannot be sufficiently addressed by the Member States, especially in cases of unfair trading practices that affect more than two Member States.
• Proportionality
The proposal aims to improve and increase cooperation between enforcement authorities, while maintaining a minimal interference in the legal orders of the Member States. The proposed rules on collection of information and the proposed rules on enforcement do not alter national rules governing the collection of information and the adoption of enforcement measures. Rather, the proposed rules aim to ensure that a legal basis is provided to enable exchanges of information and requests for enforcement measures, for which the requested authority will follow its national rules.
The proposal also does not impact the administrative system or the procedural laws of the Member States that remain free to design their systems of enforcement of the rules on unfair trading practices.
• Choice of the instrument
A Regulation has been chosen (like for other such EU cooperation instruments, notably those on customs cooperation0, VAT cooperation0, feed and food controls0, and consumer protection0), as the proposed rules essentially provide for directly applicable cooperation arrangements between public authorities.
Without an appropriate EU legal framework that applies directly in all Member States, each Member State may take a different approach when laying down rules governing requests for information or requests for enforcement measures and may condition the actions of the enforcement authority by several factors. This may lead to legal uncertainty and ultimately hinder the enforcement against unfair trading practices in cross-border cases that is envisaged by the Directive.
3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS
• Ex-post evaluations/fitness checks of existing legislation
This is a proposal for a new Regulation of the European Parliament and of the Council and is not following an ex-post evaluation or fitness check of existing legislation.
• Stakeholder consultations
Due to urgency, no formal call for evidence was carried out. However, multiple workshops, events and meetings with stakeholders have taken place, in which stakeholders submitted comments, evidence and suggestions on how the enforcement of unfair trading practices could be improved.
The enforcement authorities responsible for the enforcement of the Directive meet at least once per year and discuss best practices, new cases and new developments in the area of unfair trading practices in the agricultural and food supply chain, and exchange information. The Commission facilitates all those meetings and has, in this context, gathered the views of the enforcement authorities on cross-border enforcement.
• Collection and use of expertise
While no call for evidence or public consultation were conducted due to the urgency to act, the Commission has presented the proposed measures several times to stakeholders and the enforcement authorities and in bilateral meetings involving all relevant EU based associations within the agri-food supply chain, including consumers.
The enforcement authorities have acknowledged the challenges posed by cross-border enforcement against unfair trading practices and developed common guidelines, templates and procedures to ensure more effective coordination between them.
• Impact assessment
An impact assessment was not carried out for this proposal because of the limited choice between policy options available for the Commission. The proposal is to be seen as an enforcement tool laying down already existing obligations under the UTP Directive (for which there are no procedural rules in place on how to achieve this), enhancing cooperation among enforcement authorities.
• Regulatory fitness and simplification
The present proposal is one of the measures announced in the Commission’s Reflection Paper of 15 March 2024 as part of the Simplification Package.
Laying out an EU legal framework applicable in all Member States will ensure that there are no different approaches that could undermine legal certainty, lead to lengthy procedures, and create confusion in the cooperation among enforcement authorities.
In addition, the opinion of the ‘Fit For Future Platform’ noted, that while increased harmonisation could lead to less flexibility to adapt the rules on a national level, the numerous challenges that arise in dealing with unfair trade practices with a cross-border dimension create the need to enact legal rules that will apply in all Member States in dealing with unfair trade practices with a cross-border dimension.
• Fundamental rights
The EU is committed to high standards of fundamental rights’ protection.
This proposal respects the rights enshrined in the Charter of Fundamental Rights of the EU. The proposal will contribute to the ability of suppliers to conduct a business. The proposal also aims to ensure that the exercise of the powers referred to in this Regulation is subject to appropriate safeguards in respect of the buyers' rights of defence, including the right to be heard and the right to an effective remedy. The proposal further requires that enforcement proceedings of the enforcement authorities are conducted within a reasonable timeframe.
4. BUDGETARY IMPLICATIONS
The proposal does not have an impact on the EU budget. It would require the use of an existing website for the information exchange by the enforcement authorities and the Commission.
5. OTHER ELEMENTS
• Implementation plans and monitoring, evaluation and reporting arrangements
The present proposal is a proposal for a new EU Regulation as a complementary tool to the Directive. Therefore, the implementation plan and monitoring, evaluation and reporting arrangements remain the same as under the current framework.
• Explanatory documents (for directives)
The proposal concerns an EU Regulation.
• Detailed explanation of the specific provisions of the proposal
First, procedural rules for exchanges of information between enforcement authorities should be laid down. Requests for information are to be made in writing, stating the corresponding provision of the Directive, as well as the national law. The collection of the requested information is to be made by the requested enforcement authority and used by the applicant enforcement authority in accordance with their national laws.
Second, the possibility is introduced for a requested enforcement authority to exercise, in accordance with the national rules of its Member State, the powers attributed to it by the Directive.
Third, an enforcement authority should be able to enforce, at the request of another, in accordance with the national rules of its Member State, final decisions imposing fines or other equally effective penalties and interim measures, adopted in accordance with the Directive.
Fourth, in order to increase transparency, enforcement authorities should be able to notify their decisions to the other enforcement authorities.
Fifth, to ensure that the mutual assistance mechanism established under the Regulation is achieved, exhaustive rules enabling the enforcement authorities to refuse to comply with a request for mutual assistance, should be laid down.
Sixth, in order to avoid obstacles to a smooth cooperation linked to the absence of an agreed language regime, rules allowing the enforcement authorities to agree on the language to be used in all notifications, requests and communications between them, as well as rules in case of disagreement among them, should be laid down.
Seventh, in accordance with this Regulation, an unfair trading practice with a cross-border dimension, involving at least three Member States should be considered as a widespread unfair trading practice.
Eighth, in cases of widespread unfair trading practices, the enforcement authorities of the Member States concerned should be able to issue alerts, engage in coordinated actions, and designate a coordinator to coordinate the cooperation among the relevant authorities in whose territories the practice may be taking place.
Ninth, procedures for the coordination of investigation and enforcement measures relating to widespread unfair trading practices with a cross-border dimension should be laid down.
Tenth, it is necessary to list the cases where a concerned enforcement authority may decide to refuse to participate in a coordinated action.
Eleventh, with a view to ensuring that the enforcement authorities concerned by the coordinated action have all the tools necessary to communicate, cooperate, and coordinate, this Regulation should lay down rules on language arrangements.