Prohibition of unfair trading practices

1. Member States shall ensure that at least all the following unfair trading practices are prohibited:

the buyer pays the supplier,

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;

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;

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;

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;

the buyer requires payments from the supplier that are not related to the sale of the agricultural and food products of the supplier;

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;

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;

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 ) ;

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;

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:

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

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:

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;

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;

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;

the buyer requires the supplier to pay for the advertising by the buyer of agricultural and food products;

the buyer requires the supplier to pay for the marketing by the buyer of agricultural and food products;

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.

DIRECTIVE (EU) 2019/633 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 17 April 2019 on unfair trading practices in business-to-business relationships in the agricultural and food supply chain