Michael McNamara (Clare, Independent) | Oireachtas source

I move amendment No. 5:

In page 9, between lines 9 and 10, to insert the following: “(3) Without prejudice to the generality of subsections (1)and (2), the following unfair commercial practices in the sale of the agricultural and food products may be prohibited by regulation:

(a) deferrals of payment of agricultural or food products that exceed 30 days or other reasonable time period set down in regulation;

(b) one of the parties to the commercial relationship cancelling an order for perishable agricultural and food products within 30 days prior to the seller’s delivery date;

(c) one of the parties to the food contract unilaterally modifying the terms of the contract for the supply of agricultural products and food products, as regards the frequency, method, place, timing or volume of supply or delivery of agricultural products and food products, quality standards, payment terms or prices;

(d) one party to the commercial relationship requiring payments from the other party that are not related to the sale of the supplier’s agricultural or food products;

(e) the buyer requiring the supplier to pay for deterioration or loss, or both, of agricultural produce and food products, occurring on the buyer’s premises or where the property has already been transferred to the buyer, without such deterioration or loss being due to the negligence or fault of the supplier;

(f) a party to a food contract refusing to confirm in writing the terms of a sales or supply contract agreed between the buyer and the supplier and whose written confirmation has been requested by the other party;

(g) one party to the business relationship unlawfully acquiring, using or disclosing trade secrets of the other party within the meaning of the European Union (Protection of Trade Secrets) Regulations 2018 or any other regulations the stated purpose of which is to give effect in the State to Directive (EU 2016/943);

(h) one party to the business relationship threatening to carry out, or carrying out, acts of commercial retaliation against the other party when the other party exercises its negotiating, contractual or legal rights, including by making a complaint to the regulator or cooperating with the regulator during an investigation;

(i) the buyer passing on to the supplier the costs of investigating customers’ complaints relating to the sale of the supplier’s products, where the cause of the complaints was not due to the supplier’s negligence or fault;

(j) the buyer returning unsold agricultural and food products to the supplier without paying for these unsold products, or their disposal, or both;

(k) a party charging a payment as a condition for storing, displaying or listing agricultural and food products or making them available on the market;

(l) a party requiring the other party to bear more than 50 per cent of the cost of discounts for agricultural and food products sold as part of a promotion;

(m) a party requiring the other party to bear any of the cost of discounts for agricultural and food products sold as part of a promotion unless, prior to a promotion commencing, the duration of the promotion and the expected quantity of agricultural and food products to be ordered at a discounted price on the agreed terms are specified and the contract between the parties makes express provision for such a promotion and the extent of the discount arising therefrom;

(n) one party requiring the other party to pay for the advertising of agricultural and food products by the other party;

(o) one party requiring the other party to pay for the marketing of agricultural and food products;

(p) one party charging the other party for the personnel to fit out the premises used for the sale of the agricultural and food products.”.

The Bill as it stands allows the Minister to make regulations proscribing unfair trading practices but what those unfair trading practices are is not defined in the Bill. From that, one assumes that one refers to the legislation which it is sought to implement in Ireland, which is 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 agriculture and food supply chain. While that may sound reasonable, there has been a significant discrepancy in how that is applied across member states and furthermore, how it is applied in Ireland.

I was a member of the Oireachtas Committee on Agriculture, Food and the Marine from 2011 to 2016, while Deputy Fitzmaurice joined us on the committee in 2014. In that committee, which was chaired by Andrew Doyle, the then Deputy for Wicklow, there was a lot of discussion largely at Deputy Ó Cuív's behest. It was through this discussion that we learned that the transparency which existed in Ireland was quite different from that in other countries. In particular, how producers were treated in Ireland was quite different from how they were treated in other European countries.

The then Minister for Enterprise, Trade and Employment, Deputy Bruton, introduced a statutory instrument that proscribed a lot of activities. You could say he was ahead of his time because that 2016 regulation was quite similar in many respects to what was introduced by the socialist government in Spain in 2020 in Royal Decree-Law 5/2020. This law introduced a lot of protections for farmers - or producers to use a better term because it is broader than farmers - to much applause from the food sector and food producers in Spain. However, in 2021, during Covid, the protections introduced by the then Minister, Deputy Bruton, in 2016 were watered down considerably by the then Minister of State, Deputy Troy. Covid was a great cover if you wanted to do something and did not want people to know about it, discuss it or have any great concerns about it. Such concerns may have related to their health or to the draconian legislation that was being promulgated by the Minister for Health and facilitated by this House.

For the avoidance of any doubt, this legislation specifically allows the Minister to bring in regulations proscribing certain practices. It does not require the Minister to do it but it enables him to do it should he feel the necessity to do so. Under the Bill as it is framed, the Minister takes recommendations from the regulator. Some of the recommendations concern the prohibition of deferrals of payment for agriculture or food products that exceed 30 days or any other reasonable period set down in regulation. As I understand it - I am subject to correction on this - the time period that had been prescribed by the then Minister, Deputy Bruton, was changed by the then Minister of State, Deputy Troy, for no apparent reason. Obviously it made life easier for Tesco, Dunnes Stores, SuperValu, Lidl and Aldi but it made life a lot more difficult for producers.

One of the important things that can be introduced is a provision ensuring that one of the parties to a commercial relationship may not cancel an order for perishable agricultural and fruit products in the 30 days prior to the seller's delivery date. That is explicitly taken from the Spanish royal decree law. This law is explicitly set out for the purpose of implementing the unfair trading directive. If it can be done in Spain, I do not see why it cannot be done here. We know that the number of horticulture producers in Ireland is decreasing year on year. Even though this country is ideally suited to growing food, including horticultural products, more and more of it is being imported. We know this has a detrimental effect on our environment because imported food has a far greater carbon footprint than food produced in Ireland. If we are serious about the environment, eating organic carrots flown from one part of the world to another is not going to help our environment in any way.

We know we need to protect horticulture producers in Ireland because they can provide us with security of supply. There was huge uproar in England, less so in Ireland, when shelves were emptied out because of adverse weather conditions in the south of Italy and the south of Spain, where much of the horticultural produce we purchase comes from. It is in the interests of our environment, economy and safety and security of supply. It is also about traceability and the fact that possibly fewer preservatives have to be added to fruit and vegetables if they are travelling from north Dublin to shops in Dublin; from the Kinvara, Ballyvaughan and Bellharbour area up to Galway; or from Ogonnelloe down to Limerick than if they are being brought across the world. For all of those reasons, it is very important to protect horticulture producers.

We talk a lot about it but, year-on-year, horticultural producers go to the wall. Year-on-year there are fewer of them in Ireland. We do need to protect them and we need to protect them as fully as possible, not with a minimal standard introduced in the lifetime of this Government but by that which ironically - or I do not know if it is ironic or not - was introduced by persons who supported this Government when they were in office and in a position to make regulations.

I just want to be clear. It does not require the Minister to do everything but it facilitates him to ensure that a broad range of fair-trading practices are adhered to. On that basis I urge him to consider the amendment.

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