The UTP Enforcement Authority is established under SI No. 198 of 2021 European Union (Unfair Trading Practices in the Agricultural and Food Supply Chain) Regulations 2021 which gives effect to the Directive in Irish law from 28 April 2021.
The Enforcement Authority is required to enforce the rules of the Regulations and will investigate complaints submitted by agricultural and food product suppliers which can include inter alia farmers, producer organisations, cooperatives, supplier organisations, organisations of processors, wholesale distributors.
The Enforcement Authority may also initiate and conduct investigations on its own initiative.
Unfair Trading Practices
The UTP Directive (Directive (EU) 2019/633 of the European Parliament and of the Council of 17 April 2019) deals with unfair trading practices in business-to-business relationships in the agricultural and food supply chain.
The Directive sets out
• 10 UTPs which are prohibited in all circumstances – these are generally referred to as “Black” UTPs
• 6 UTPs, which are prohibited unless the parties agree clearly and in an unambiguous manner beforehand - these are generally referred to as “Grey” UTPs.
The “Black” and “Grey” UTPs are summarised as follows:
1. Payments later than 30 days for perishable agricultural and food products
2. Payment later than 60 days for other agricultural and food products
3. Short-notice cancellations of perishable agricultural and food products
4. Unilateral contract changes by the buyer
5. Payments not related to a specific transaction
6. Risk of loss and deterioration transferred to the supplier
7. Refusal of a written confirmation of a supply agreement by the buyer, despite request of the supplier
8. Misuse of trade secrets by the buyer
9. Commercial retaliation by the buyer
10. Transferring the costs of examining customer complaints to the supplier
11. The buyer returns unsold products to the supplier without paying for those unsold products
12. Payment by the supplier for stocking, display and listing
13. Payment by the supplier for promotion
14. Payment by the supplier for marketing
15. Payment by the supplier for advertising
16. Payment by the supplier for staff of the buyer, fitting out premises
Categories of Turnover
A supplier is defined as an agricultural producer or any natural or legal person, including producer organisations, organisations of suppliers and associations of such organisations who sells agricultural and food products.
A buyer is defined as any natural or legal person or any public authority who buys agricultural and food products.
The UTP Directive applies only to weaker suppliers against stronger buyers and in that regard provides that complaints can be made within categories that are set out according to the annual turnover of suppliers and buyers, as follows:
(a) suppliers which have an annual turnover not exceeding €2,000,000 to buyers which have an annual turnover of more than €2,000,000,
(b) suppliers which have an annual turnover of more than €2,000,000 and not exceeding €10,000,000 to buyers which have an annual turnover of more than €10,000,000,
(c) suppliers which have an annual turnover of more than €10,000,000 and not exceeding €50,000,000 to buyers which have an annual turnover of more than €50,000,000,
(d) suppliers which have an annual turnover of more than €50,000,000 and not exceeding €150,000,000 to buyers which have an annual turnover of more than €150,000,000, and
(e) suppliers which have an annual turnover of more than €150,000,000 and not exceeding €350,000,000 to buyers which have an annual turnover of more than €350,000,000, or
(f) suppliers which have an annual turnover not exceeding €350,000,000 to all buyers which are public authorities
The Regulations do not provide for arrangements between suppliers and consumers.
Making a Complaint
New supply agreements (oral and written) must be in compliance with the requirements of the Regulations by 1 July 2021; contracts (oral and written) that were concluded before 28 April 2021 must be brought into line within 12 months of that date.
If you are a supplier and feel you have been the subject of an Unfair Trading Practice as listed above and your business turnover and that of the buyer concerned comes within the defined categories of turnover then please contact the UTP Enforcement Authority by email at UTP@agriculture.gov.ie
Where the Enforcement Authority receives a complaint, the complainant shall be advised within a reasonable period of time after the receipt of the complaint of how it intends to follow up on the complaint.
Where the Enforcement Authority considers that there are insufficient grounds for acting on a complaint, he or she shall inform the complainant of the reasons within a reasonable period of time after the receipt of the complaint.
Where the Enforcement Authority considers that there are sufficient grounds for acting on a complaint, he or she shall initiate, conduct and conclude an investigation of the complaint within a reasonable period of time.
Where the Enforcement Authority is of the view inter alia that the Regulations or the UTP Directive is not being or has not been complied with, it may issue a compliance notice requiring the buyer to take appropriate action.
A person who commits an offence under these Regulations is liable–
(a) on summary conviction, to a class A fine or to imprisonment for a term not exceeding 6 months or to both, or
(b) on conviction on indictment, to a fine not exceeding €500,000 or to imprisonment for a term not exceeding 3 years or to both
Information Seminar on UTP Regulations and Office of National Food Ombudsman
The Department of Agriculture Food and the Marine hosted an on-line seminar on the Unfair Trading Practices Regulations and the Office of the National Food Ombudsman/Regulator on 25 June 2021.
The seminar provided information on the Unfair Trading Practices Regulations that were signed into law in April 2021 by the Minister for Agriculture, Food and the Marine. A short preliminary overview of the submissions received in response to the recent consultation on the establishment of the Office of National Food Ombudsman/Regulator was also provided.
The powerpoint slides from the presentations on the day are available here: