UNFAIR PRACTICES IN THE AGRI-FOOD CHAIN: STEPS FORWARD AND UNRESOLVED ISSUES
The transposition of Directive 633/2019 has harmonised approaches to unfair commercial practices in the agri-food industry within the European single market. The directive, while leaving the usual room for manoeuvre to individual states, lays down common principles such as the need for compliance with precise and defined payment terms for supplies, the impossibility of charging the supplier for the spoilage of goods not attributable to him, the prohibition of unilateral changes to contractual terms, the explicit prohibition of the use of trade secrets acquired in the normal course of business, and the condemnation of retaliation in the event of reports of unfair practices, which include:
avoidance or refusal to put essential commercial conditions in writing
unilateral retroactive changes in costs or prices of products or services
unjustified or disproportionate transfer of risk to a contracting party
deliberate disruption of a delivery or receipt schedule to obtain unjustified advantages or
unilateral termination of a business relationship without notice or imposition of unreasonably short notice without an objectively justified reason.
Long awaited by all operators in the supply chain, this directive lays the foundations for a new approach to the regulation of commercial practices between operators, but it also leaves open a number of operational criticalities and unresolved points that Dr. Francesca Sebastio, from the Antitrust Authority (AGCM), recently illustrated during the Conference promoted by ASSICA at TuttoFood.
At the national level, one of the main novelties is the decision to identify a different control authority than in the past: no longer the AGCM, but the ICQRF, the Inspectorate of the Mipaaf, which already oversees the application of a large part of agri-food regulations. The first point raised during the seminar was precisely the need to harmonise the 2 regulatory systems that currently exist at national level in the agri-food chain: the Legislative Decree implementing Directive No. 633/2019 (soon to come into force) with Article 62 of Law No. 27/2012, calling for a memorandum of understanding between Mipaaf and AGCM to overcome the differences and overlaps that exist between national and EU regulations, in terms of cases and competences.
Regarding the introduction of the written form requirement for contracts in the agri-food chain, Dr. Sebastio advised companies to take legal advice when signing agreements. Among other reasons, there is the provision in the legislative decree of certain exceptions to the obligation of the written form and other equivalent written forms, such as the transport or delivery document, invoices, purchase orders for delivery, etc.. This exemption raises perplexity because the commercial nature of such documentation does not attest to the actual manifestation of will for the purpose of acquiring consent, including for the purpose of ascertaining the contractual imbalance.
A third series of considerations concerns the sanctioning system, which currently appears ineffective since it is substantially based on a mathematical criterion that does not take into account other important indices such as, by way of example, the size of the company, the state of weakness of the subject with less bargaining power, the extent of the unlawful practice carried out, the number of subjects involved, etc. Moreover, the application of the legislative decree implementing Directive No. 633/2019, will require a regulation on investigative procedures to establish certain timeframes and procedures for the conclusion of the proceedings.
Lastly, the protection of final consumers, who could be adversely affected by ‘unfair’ conduct implemented by agri-food companies, whose rights are protected by the Consumer Code, the enforcement of which is institutionally assigned to the AGCM, should not be underestimated. Last but not least, new scenarios are also configured in light of the new practices perpetrated online, some of whose European regulations came into force at the end of 2020, while others are in the process of being approved.
