Federal Office for Agriculture and Food

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FAQ

Do you have specific questions about unfair trading practices or the interpretation of the law? We have compiled answers to frequently asked questions and provide guidance on the interpretation of the law by the BLE.

1. What are unfair trading practices?

Unfair trading practices are contractual clauses and practices that are considered unfair and are therefore prohibited in supply relationships between large commercial and public buyers of agricultural, fishery and food products and suppliers who are smaller in terms of turnover.

2. Who determines which trading practices are unfair?

In Germany, the Agricultural Organisations and Supply Chains Act (Agrarorganisationen-und-Lieferketten-Gesetz - AgrarOLkG) determines which trading practices are unfair.

It should be noted, though, that not everything that is unfair or perceived as unfair is also unfair in the sense of the law. Rather, the AgrarOLkG provides an exhaustive catalogue of prohibited contractual clauses and practices.

The contractual clauses and practices that are to be considered unfair in the sense of the law are described in more detail under point 21, “Which trading practices are prohibited?”.

In Germany, the Federal Office for Agriculture and Food (BLE) is the responsible authority for enforcing the prohibition of unfair trading practices.

3. Which legal transactions are subject to the AgrarOLkG?

The prohibition of unfair trading practices applies to the “sale” of agricultural, fishery and food products. Sale in the sense of the AgrarOLkG does not only mean purchase transactions as defined by the German Civil Code (Sections 433 et seq. BGB), but all legal transactions which have as their object the sale or acquisition of agricultural, fishery and food products against payment – irrespective of whether the sale or acquisition transaction is based on a purchase contract. This means, for example, that contract farming of agricultural products is also covered.

4. What are agricultural, fishery and food products? Which products are covered by the AgrarOLkG?

Agricultural and fishery products are those listed in Annex I of the Treaty on the Functioning of the European Union (TFEU).

Examples: meat, fish, crustaceans and molluscs, milk, eggs, honey, fats and oils, cereals, vegetables, fruits, but also live animals and plants, cut flowers, tobacco, cork, straw and (also prepared) animal fodder.

Food products are foodstuffs made from at least one agricultural or fishery product, including water-based drinks in the manufacture of which at least one agricultural or fishery product has been used.

Examples: bakery products, spreads, ready meals, cheese and prepared meat products.

Annex I to the TFEU contains a list that refers to the Brussels tariff nomenclature. The Annex was amended in 1959 and has remained unchanged since then, while the tariff nomenclature has evolved dynamically. As a result, the tariff numbers listed in Annex I of the TFEU partly do not correspond to the current numbers of the Combined Nomenclature (CN). In such cases, the products covered are determined not by the CN codes but by the descriptions of the products.

Annex I of the TFEU also often refers to entire chapters of the tariff nomenclature. Since 1959, the chapters have been further differentiated, which is why the 1959 tariff nomenclature does not contain an exhaustive overview of agricultural and fishery products within the meaning of the TFEU.
Simpler guidance is provided for agricultural products by Annex I to Regulation (EU) No 1308/ 2013 on the common organisation of the markets in agricultural products, and for fishery products by Annex I to Regulation (EU) No 1379/ 2013 on the common organisation of the markets in fishery and aquaculture products.

Article 1(1) of Regulation (EU) No 1308/2013 defines agricultural products as “all the products listed in Annex I to the Treaties with the exception of the fishery and aquaculture products as defined in the Union legislative acts on the common organisation of the markets in fishery and aquaculture products”. According to Article 1(2) in conjunction with Annex I, they are subdivided into different sectors and listed individually. The introductory sentence of Annex I, Part XXIV “Other products” serves as a catch-all provision for “all agricultural products other than those listed in Parts I to XXIII”. This catch-all clause ensures that any additions to CN codes within chapters covered by Annex I to the TFEU are also included.

5. What are perishable agricultural, fishery and food products?

Perishable agricultural and food products means agricultural and food products that by their nature or at their stage of processing are liable to become unfit for sale within 30 days after harvest, production or processing.

Perishable products are therefore products that are (have to be) used or sold quickly as a rule. In determining whether a product is perishable within the meaning of the Act, the purpose of the statutory payment and cancellation periods (Sections 11 and 13 AgrarOLkG) must therefore be taken into account.

The purpose of these provisions is to ensure that the supplier is paid for the produce when it must have been resold because of its short shelf life; this is to protect the supplier from cancellation at such short notice that they cannot resell the produce. Consumption information, best-before date as well as shelf-life can be indicators of the perishability of a product.

Examples: strawberries, fresh meat and raw milk.

6. Are protective measures to be taken into account when classifying products as perishable?

With fresh produce in its original state, where it can be assumed that it is no longer suitable for sale within 30 days of its harvest (e.g. apples) or production (e.g. raw milk), protective measures (such as refrigeration) are not to be taken into account.

Example: an apple is always a perishable product within the meaning of the Act, even if after harvesting it can initially be stored in a cold storage with reduced oxygen content and/ or storage gas and still be sold months later.

When classifying fresh produce in its original state as perishable, the buyer's intended use is also irrelevant.

Example: an apple is a perishable product – regardless of whether the buyer wants to resell it as a fresh apple or process it into apple sauce.

With processed products (e.g. apple sauce, cheese or salami), protective measures taken within the processing procedure to preserve a product (e.g. ultra-high temperature, salt bath, smoking) must be taken into account.

Examples: UHT milk that has a shelf life of more than 30 days after production is not a perishable product. Cheese is only deemed perishable if it is no longer suitable for sale within 30 days of its production. This means that the same type of cheese, depending on the degree of maturity, may or may not be “perishable” in the sense of the definition.

The same applies if the condition of fresh produce in its original state is changed during production before the sale (e.g. deep-freezing) in such a way that it must subsequently be handled in a certain way in order to be saleable. In these cases, it must be assumed and taken into account that the buyer continues the required handling (e.g. maintaining the deep-freeze).

Example: frozen raspberries are not perishable products.

Measures of protection taken subsequent to the production process, for example storing a finished product before sale (i.e. Cold storage) are not taken into account when determining whether a product is perishable.

7. Who is protected by the prohibition of unfair trading practices and who must comply with it?

The prohibition of unfair trading practices shall protect not only farmers, but all suppliers of agricultural, fishery and food products, i.e. in particular also suppliers of the food processing industry.

However, only suppliers who do not exceed certain thresholds of annual turnover are subject to the protection of the AgrarOLkG. Moreover, the prohibition of unfair trading practices only applies if, at the time of the conclusion of the contract, the buyer's annual turnover is higher than the annual turnover of the respective supplier. To determine this, a model of turnover thresholds is applied.

8. What is the model of turnover thresholds and how does it work?

The model of turnover thresholds determines the personal scope of application of the AgrarOLkG. That means the model of turnover thresholds is used to determine whether a buyer must observe the prohibition of unfair trading practices in the relationship to a particular supplier. This is because only suppliers who do not exceed certain thresholds of annual turnover are subject to the protection of the AgrarOLkG. Moreover, the prohibition of unfair trading practices only applies if, at the time of the conclusion of the contract, the buyer's annual turnover is higher than the annual turnover of the respective supplier. The comparison of the buyer’s and the supplier’s turnover is not based on the exact amount of euros; instead, the following turnover thresholds apply:

LevelAnnual turnover of the supplierAnnual turnover of the buyer
1up to 2 million eurosmore than 2 million euros
2over 2 million up to 10 million eurosmore than10 million euros
3over 10 million up to 50 million eurosmore than 50 million euros
4over 50 million up to 150 million eurosmore than150 million euros
5over 150 million up to 350 million eurosmore than 350 million euros

Example: if the annual turnover of a supplier is 30 million euros, all buyers with an annual turnover of more than 50 million euros must comply with the prohibition of unfair trading practices when buying from this supplier.

9. My contractual partner wants me to state the turnover of my company, referring to the AgrarOLkG – do I have to provide this information?

Yes, there is a legal obligation to provide this information, as the contractual partner needs to know whether the prohibition of unfair trading practices actually applies to the business relationship with your company in order to be able to comply with it, if applicable. Such a query is therefore also in the interest of your company. Generally, however, it is not necessary to provide exact turnover figures. It is sufficient to indicate which of the five turnover levels named above your company can be allocated to. With large buyers with an annual turnover of more than 350 million euros, it is even sufficient for the supplier to state that their annual turnover was less than 350 million euros.

The BLE can impose a maximum fine of 10.000 Euros for violating this duty of disclosure.

When indicating the turnover of your company, the turnover of partner and linked companies has also to be taken into account. You may find further information about the relevant turnover in such cases under Points 11 - 15.

10. Which turnovers are relevant for the comparison?

For both parties, the total sales turnover in the last balance of accounts before the conclusion of the contract are taken into account. The amount of turnover is calculated net of VAT and other indirect taxes or duties. In determining the annual turnover it is irrelevant whether the buyer and the supplier generate turnover exclusively in agricultural, fishery or food products or whether these products account for a small part of their respective turnover only. The total turnover in the annual accounts is taken into account.

11. What applies if the buyer and/ or supplier are/ is part of a group of companies? Is the turnover of the contracting parties or the turnover of their respective groups of companies taken into account when comparing turnover figures?

The latter applies: any turnover of partner companies and linked companies of the buyer and the supplier is to be included, respectively.

If there is a consolidated (group) financial statement, this is initially decisive. If it has not already been consolidated in the annual financial statements, the turnover of linked companies is to be added in full and the turnover of partner companies is to be added on a pro rata basis (according to the share of capital or voting rights, whichever is higher).

12. What are partner companies?

Partner companies are companies in which – alone or together with a linked company – either your company holds at least 25% of the shares (downstream partner companies) or which hold at least 25% of the shares in your company (upstream partner companies).
A definition of the term “partner company” (”partner enterprise”) can also be found in a user guide of the European Commission (there from page 18), which is available here: User guide to the SME definition.

13. What are linked companies?

Linked companies are companies in which either your company holds the majority of voting rights or which are otherwise controlled by your company (controlled companies) or which hold the majority of voting rights in your company or otherwise control your company (controlling companies).

A definition of the term “linked company” (”linked enterprise”) can also be found in a user guide of the European Commission (there from page 21), which is available here: User guide to the SME definition.

14. Can turnover from companies also be attributable if the shareholding is less than 25%?

Yes, even if the shareholding is less than 25%, there may be linked companies whose turnover must be taken into account. This is the case when:

one company has the right to appoint or remove a majority of the members of the administrative, management or supervisory body of another company; or

one company has the right to exercise a controlling influence over another company pursuant to a contract entered into with that company or to a provision in its memorandum or articles of association; or

one company, which is a shareholder or member of another company, exercises sole control over the majority of the voting rights of its shareholders or members pursuant to an agreement entered into with other shareholders or members of that other company.

The companies in question constitute a single economic unit notwithstanding their formal independence.

15. What circumstances may indicate a linked company in the case of a shareholding of less than 25%?

Companies that hold less than 25% of each other’s share can nonetheless be deemed linked companies, if (1) they are active in the same relevant market or in adjacent markets and (2) it is clear from the analysis of the legal and economic relations between them that, through a natural person or a group of natural persons acting jointly, they constitute a single economic unit.

The criteria of acting jointly is fulfilled, if the national persons work together to exercise an influence over the commercial decisions of the companies concerned which precludes those companies from being regarded as economically independent of each other.

Such a controlling influence is indicated by far-reaching possibilities of influence that lead to the linked company not being able to make business and strategic decisions independently, or to a very limited extent only.

Examples:

The investee handles all of its purchasing centrally through the holding company and must stock a compulsory range of products (which accounts for a large majority of the total range) specified by the holding company.

For the products of the compulsory range, price specifications apply from which the investee can only deviate in a few exceptional cases.

There are strict guidelines on the design of advertising materials and sales areas under a uniform brand identity as well as on the timing and design of any discount campaigns or special promotions which are carried out according to a sales concept developed centrally by the holding company.

The investee is closely integrated into the merchandise management system offered by the holding company and processes its payments through the central settlement system provided by the holding company.

The business premises are usually rented by the holding company. The holding company decides on the opening and closing of these locations and rents them out – sometimes at more advantageous conditions – to its investees, so that leaving the group of companies would usually mean losing the shop.

16. What is turnover generated with dairy and meat products as well as fruit, vegetable and horticultural products (including potatoes)? What is the extended personal scope of the Act and when does it apply?

Beyond the turnover thresholds outlined above (Point 8) the prohibition of unfair trading practices also protects larger companies from the dairy, meat, fruit, vegetable and horticultural product segments with an annual turnover of no more than 4 billion euros in the respective segment in Germany. This covers suppliers of dairy and meat products as well as fruit, vegetable and horticultural products, including potatoes, with global annual turnover not exceeding 15 billion Euros and at the same time not exceeding 20 % of the buyer’s global annual turnover.

The Act does not specify what is meant by dairy and meat products as well as fruit, vegetable and horticultural products. The BLE as the competent enforcement authority is guided by the following considerations when interpreting these terms:

For one thing, “dairy and meat products as well as fruit, vegetable and horticultural products” should include all primary products from the segments mentioned.

Examples: raw milk, livestock, fresh fruit and vegetables, cut flowers and potatoes.

In addition, the legislator wanted to include processed products which are obtained from the above-mentioned primary products in the scope of application of the Act, as processing, e.g. producer-owned, companies from these segments could also be affected by the market power of the retailers. Therefore, products obtained directly from the respective primary products by direct processing should likely be covered as well.

Examples: skimmed milk, pork halves, tomato paste, potato starch.

With higher and highly processed products, the decisive factor for classification as a dairy, meat, fruit, vegetable or horticultural product is likely to be whether the primary product of the respective segment and/or its direct processed products is or are clearly characteristic of the highly processed product. For the sake of practical manageability, the BLE will distinguish whether the highly processed product consists mainly (at least 51%) of the respective primary product and/or its direct processed products or whether it is only one of several ingredients which account for a minor share (49% and less) of the total ingredients.

However, several primary and/or direct processed products of a segment (e.g. several types of fruit or vegetables) which are processed into one product should be considered together if they, in their combination, are characteristic for the highly processed product and (jointly) account for the majority share of ingredients in the highly processed product.

Example: vegetable stir-fry made from seven different vegetables, which together account for 90% of the ingredients.

On the other hand, ingredients which are obtained from dairy, meat, fruit, vegetable or horticultural products, but which are not defining for the overall product and rather serve as auxiliary substances or additives to give the product certain properties – e.g. consistency, shelf life or colour – are likely not to be considered.

Examples: milk powder in chocolate bars, gelatine in gummy bears, rennet in cheese, pectin in jam, carotene in confectionery, potato starch in baked goods.

Examples for higher and highly processed products:

Dairy product within the meaning of Sect. 10 (1) sent. 2 AgrarOLkGNot a dairy product within the meaning of Sect. 10 (1) sent. 2 AgrarOLkG
Vanilla ice cream made of: skimmed milk 40%, cream 25%, glucose fructose syrup, sugar, thickened skimmed milk, emulsifier, stabilisers, carrot concentrate, bourbon vanilla extracts, extracted ground vanilla beans.Yoghurt dressing made of: water, low-fat yoghurt 35%, rapeseed oil 10%, spirit vinegar, sugar, modified starch, glucose fructose syrup, salt, egg yolk, thickener, natural flavouring, acidifier, antioxidant.
Meat product within the meaning of Sect. 10 (1) sent. 2 AgrarOLkGNot a meat product within the meaning of Sect. 10 (1) sent. 2 AgrarOLkG
Meatballs made of: 40% pork and 40% beef, breadcrumbs, onions, chicken egg, iodised table salt, spices (with mustard flour), glucose syrup, dextrose, seasoning, yeast extract, spice extract, rapeseed oil.Beef roulades in sauce: drinking water, 40% braised beef roulades (52% beef, onions, smoked pork belly, gherkins, spirit vinegar, sugar, mustard, drinking water, table salt, rapeseed oil, spices, herbs), starch, mustard, thickening agent, seasoning, tomato paste, caramelised sugar syrup, onions, table salt, sugar, vegetable oils, spice extracts, smoked bacon extract, spices.
Fruit product within the meaning of Sect. 10 (1) sent. 2 AgrarOLkGNot a fruit product within the meaning of Sect. 10 (1) sent. 2 AgrarOLkG
Red fruit jelly made of: 51% fruits (sour cherries, red currants, raspberries, black currants), water, sugar, locust bean gum, starch, pectin (citrus).Strawberry jam made of: 49% strawberries, sugar, brown cane sugar, 1% lemon juice concentrate, pectin (citrus).
Vegetable product within the meaning of Sect. 10 (1) sent. 2 AgrarOLkGNot a vegetable product within the meaning of Sect. 10 (1) sent. 2 AgrarOLkG
Hungarian style paprika sauce made of: 47% tomato paste, 14% peppers, sugar, spirit vinegar, 12% onions, starch, salt, rapeseed oil, flavourings.Ready-made bolognese made of: 40% tomato paste, drinking water, 20% pork, sugar, maize starch, 4% carrots, 3% onions, salt, rapeseed oil, 0.5% garlic, spices.
Horticultural product within the meaning of Sect. 10 (1) sent. 2 AgrarOLkGNot a horticultural product within the meaning of Sect. 10 (1) sent. 2 AgrarOLkG
Potato soup made of: 54% potatoes, palm oil, salt, sugar, starch, yeast extract, flour, lactose, milk protein, onions, carrots, spices, garlic, herbs, vegetable juice concentrate, leek, flavouring.Potato and vegetable soup made of: 45% potatoes, water, 6% vegetables (carrots, leeks), 6% sliced bockwurst, rapeseed oil, bacon, modified starch, salt, sugar, yeast extract, parsley, flavouring, colouring paprika extract, acidifier, antioxidant, thickener.

17. I do not know the relevant turnover of my contractual partner. How can I determine whether the prohibition of unfair trading practices applies to them?

You can contact your contractual partner and ask them about their turnover. In order to determine the turnover level of the respective business partner, suppliers and buyers are obliged to provide each other with timely, truthful and complete information. Please keep in mind that the BLE can impose a maximum fine of 10.000 Euros for violating this duty of disclosure. Should you have difficulties in determining the relevant turnover, do not hesitate to contact the BLE (Unit 516) – we will be happy to assist you.

You can also contact the BLE if you as a supplier do not want to ask your buyer about their turnover or if they do not supply you with the required information. If there are indications of unfair trading practices, the BLE can start investigations and also determine the amount of the buyer's turnover. In doing so, the BLE will protect your identity and any other information you consider confidential.

Your contact persons at the BLE are listed under point 35.

18. Does the prohibition of unfair trading practices also apply to purchasing public authorities?

Yes, the prohibition of unfair trading practices also applies to buyers which are public authorities.

19. Does the prohibition of unfair trading practices also apply to consumers?

No, the prohibition of unfair trading practices only applies to commercial buyers and public authorities.

20. Does the prohibition of unfair trading practices also apply to foreign contractual parties?

Yes, the prohibition of unfair trading practices is applicable if either the supplier or the buyer or both are based in Germany.

The BLE is the competent enforcement authority if either the supplier or the buyer or both are based in Germany.

21. Which trading practices are prohibited?

The following trading practices are always considered unfair and are prohibited in the relationship between large (commercial and public) buyers and suppliers who are smaller in terms of turnover:

Payment terms longer than 30 days for perishable agricultural, fishery and food products or longer than 60 days for other agricultural, fishery and food products.

Returning of unsold agricultural, fishery and food products, without payment of the purchase price and the disposal costs for products that can no longer be used (an exception applies, if the retuned products are fit for sale for another 12 month after being returned).

Short-term cancellations for perishable agricultural, fishery and food products.

Making the supplier bear a proportion of the buyer’s storage costs by means of payments or price discounts (except cases where the buyer is an association of suppliers with the intention to use the storage capacity together).

Unilateral changes to contractual conditions by the buyer, e.g. terms of delivery and payment, quality standards, prices etc.

Transferring to the supplier costs incurred by the buyer due to a decrease in quality after delivery or due to the handling of customer complaints.

Transferring to the supplier costs that have no specific connection with the sale of the contract goods.

Payments or discounts for listing products after market launch.

Threatening or taking retaliatory measures (e.g. delisting, reducing of order quantities or terminating agreed advertising for the contractual products) in the event that the supplier exercises their rights.

Refusal of the buyer to confirm a verbally concluded contract in text form.

Demanding price reductions as part of an agreed sales promotion by the buyer without providing the supplier with an estimate of the quantity to be ordered at the lower promotional price in text form in good time beforehand.

Refusal by the buyer to provide the supplier with an estimate of the payments or price discounts that have been agreed – e.g. for listing at market launch, for marketing, or for setting up sales premises – or a cost estimate in text form.

The acquisition, use or disclosure of the supplier's trade secrets without authorisation or in bad faith.

The following payments or price reductions by the supplier are only permissible in the relationship between large commercial and government buyers and suppliers smaller in terms of turnover if they have been previously agreed “clearly and unambiguously” between the parties (so called grey clauses):

Payments or price reductions for the listing of agricultural, fishery and food products at their market launch.

Payments or price reductions for the marketing of the agricultural, fishery or food products supplied, including offers for sale, advertising, price reductions in the context of sales promotions and making the goods available on the market.

Payments or price reductions for setting up sales premises.

Contractual terms are “clear and unambiguous” if they are understandable and do not contain any relevant room for interpretation. Such conditions may also be contained in General Terms and Conditions.

While, as a general rule, the above-mentioned cost regulations can be agreed, this does not apply if there is no specific connection to the sale of the supplier's products. For example, advertising allowances for the supplier's products can, in principle, be agreed. However, an agreement that an advertising allowance is to be paid even if the supplier's products are not promoted in the advertising material would be ineffective.

Furthermore, an agreement on price reductions in the context of sales promotions is only effective if the buyer also undertakes to notify the supplier in text form in good time before the start of the sales campaign of the promotion period and an estimate of the quantity of products to be ordered at the lower price. If the buyer does not fulfil their contractual obligation to inform the supplier, they cannot demand the agreed price reduction.

22. What are launched products? In which cases are listing fees permissible?

Payments or price reductions for the listing of agricultural, fishery and food products are in principle prohibited within the scope of application of the AgrarOLkG (Sections 17 sent. 1 and 23 no. 1 g), no. 5 AgrarOLkG). However, an exception applies to listing fees at market launch (Sections 17 sent. 2 and 20 (1) no. 1 AgrarOLkG). The Act does not provide a definition of what is meant by “market launch”.

The BLE as enforcement authority is guided by the following considerations when interpreting this term: the BLE understands that the exceptional possibility of charging fees for the listing of agricultural, fishery and food products that have not yet been introduced to the market is intended to reward the “pioneering spirit” and entrepreneurial risk of those buyers who list “new” products whose market success is uncertain. By doing so, these buyers increase the diversity of the offered range and thus the choice for consumers.

Against this background, according to the BLE's understanding, an agricultural, fishery and food product cannot already be deemed “launched” just because it is offered for sale in (any) sales outlet. Conversely, listing fees are not permissible merely because the buyer charging listing fees has not (yet) listed the product. Whether a buyer may charge their suppliers fees for listing an agricultural, fishery and food product depends rather on whether the product in question is already established in the geographic market where the buyer competes with their rivals for customers as a reseller. For the listing of already established products, no payments or price reductions may be requested.

A product is established if there is already a concrete need or a constant demand for the product in question on the relevant geographical market. Whether this is the case must be determined in each individual case primarily on the basis of the time and the extent to which the product in question has already been offered for sale on this market.

An indication of this may be, for example, the magnitude of the supplier's historical aggregate total sales or turnover figures with the product in question in the territory in question or market data available publicly or from market research companies. It should be borne in mind that it is often only after a certain introductory phase – the duration of which depends on the particularities of the product in question – that it becomes clear whether a new product will be accepted by consumers. Sales revenues generated by a supplier with a new product in such an introductory phase (for example, through the initial stocking of sales outlets) can therefore not be considered a reliable indication of constant demand.

Listing fees within the meaning of Section 17 AgrarOLkG are to be distinguished from payments or price reductions for marketing – in particular for offers for sale (“displaying” at the point of sale) or for making available on the market – within the meaning of Section 20 (1) No. 2 AgrarOLkG. In the case of the latter, the buyer must, in return, provide sales-promoting marketing services with regard to the supplier's products, which go beyond mere inclusion in their product range.

For example, payments or price reductions for a secondary placement or a special form of product presentation may be permissible as sales promotion measures under the additional conditions of Section 16 AgrarOLkG. On the other hand, payments or price reductions do not become permissible merely because a buyer includes several or a certain number of already launched products of a supplier in their assortment.

23. Are contractual clauses and practices which are not mentioned above always permitted?

No. The AgrarOLkG initially prohibits only those contractual clauses and practices that are explicitly and exhaustively mentioned. I.e. contractual clauses and practices not listed there – e.g. buyers requiring suppliers to deliver at prices below their production costs or selling below cost – are not subject to the prohibition of unfair trading practices.

However, the prohibition of unfair trading practices also applies to contractual clauses which cause a circumvention of an explicitly prohibited contractual clause (an exception applies for contractual terms which forsee an obligation for the supplier to bear costs, which cannot be legally agreed upon according to Sect. 16 AgrarOLkG).Even if contractual clauses and practices are neither explicitly prohibited nor fall under the prohibition of circumvention this does not mean that the practices in question are always permitted. Rather, such contractual clauses and practices may, under certain conditions, be prohibited under other laws, e.g. the prohibitions of abuse under antitrust law that apply to market-dominating or powerful companies (Sections 19 et seq. of the Act against Restraints of Competition) or the provisions of the Act against Unfair Competition.

It is the responsibility of other authorities – e.g. the Federal Cartel Office for the prohibitions of abuse under cartel law – to enforce these prohibitions.

24. What if my contract contains unfair trading practices?

Unfair trading practices are prohibited by law.

Contracts containing prohibited unfair trading practices may therefore be partially invalid. In that case, large commercial and public buyers of agricultural, fishery and food products cannot invoke such contractual clauses against their suppliers who are smaller in terms of turnover. The Civil Courts are responsible for deciding on the validity of contracts.

The BLE may pick up on violations following complaints from market operators, ex officio, or on the basis of requests for administrative assistance from enforcement authorities of other EU Member States and may issue the orders necessary to remedy the violations and prevent future violations. In addition, the BLE may impose fines of up to 750.000 Euros per violation.

The BLE can also order that the buyer must reimburse the benefits that he gained from the illegal behavior to the affected suppliers.

25. My contract seems to be in order, but my buyer is not abiding by it. Does the prohibition of unfair trading practices apply even if the contract does not contain any prohibited clauses?

Yes, it is not the wording of the contract that is decisive but the actual behaviour of the buyer. Obligated buyers act unfairly even if the content of the contract is faultless, e.g. if they

do not make payments owed (purchase prices or removal costs) or do not make them on time (unless they have a right to refuse performance),

demand services (storage costs, payments or price reductions) to which they are not entitled in the absence of a valid agreement,

refuse to confirm verbally concluded delivery agreements in writing,

obtain, use or disclose any trade secrets without the consent of the supplier; or

threaten retaliation against suppliers who exercise their contractual/legal rights.

26. I do not have a written contract with my buyer. What can I do?

You can demand that your buyer confirms the content of a verbally concluded supply contract or a verbally concluded framework agreement in text form. Refusal to confirm verbally concluded supply agreements in text form is a violation of the prohibition of unfair trading practices.

27. How can I complain if I am a supplier affected by unfair trading practices?

You can file a complaint with the BLE via mail, fax, e-mail, telephone or our online complaint form. The contact details can be found under item 35.

The same right of complaint is available, at your request, to associations of which you are a member and, at your request, to organisations that have a legitimate interest in representing you. Such organisations are, for example, district farmers' associations with legal capacity and other producers' associations with legal capacity at the state or federal level.

You can also use our anonymous tip off system to inform the BLE about unfair trading practices.

28. Which information do I have to include in a complaint to the BLE?

In order for us to act on your complaint it is very helpful if you include the following information:

a) The Supplier concerned
b) The Buyer, who is suspected to have infringed the prohibition of unfair trading practice
c) The Behaviour of the buyer suspected to have infringed against the prohibition of unfair trading practices.

Furthermore, it is also helpful if you provide us with your contact details so that we can address any queries to you and keep you informed about the status of your complaint

If you do not provide all the information necessary for a complaint, e.g. cannot or do not want to disclose the identity of the supplier concerned, the BLE will treat your information as an indication and check whether it will take action on its own initiative.

29. Can the BLE protect my identity and confidential information from disclosure to my buyers?

Yes. We know that suppliers affected by unfair trading practices are usually confronted with buyers on whom they are economically dependent.

The BLE therefore protects your identity and any other information the disclosure of which you believe would harm your interests. The legal basis for this is provided by Section 26 AgrarOLkG. All that is required is for you to tell us what information from the complaint is to be kept confidential.

If, in a particular case, we come to the conclusion that we could not complete the investigation of the complaint without disclosing your confidential information, we will let you know. You can then decide whether to disclose your confidential information and how to proceed: if you agree to disclose the information, the proceedings may continue; if you do not agree, they will be discontinued.

30. Will a complaint to the BLE cost me anything?

No, lodging a complaint with and processing of the complaint by the BLE is free of charge.

31. Do I have to hire a lawyer to file a complaint with the BLE?

No, you do not have to hire a lawyer. In very complex cases, however, it may be advisable to consult a lawyer.

32. What will the BLE do with my complaint?

The BLE will examine whether there is a violation of the prohibition of unfair trading practices and whether it is going to initiate proceedings in this regard. The BLE will keep you informed about the status, progress and outcome of your complaint.

33. Can I contact the BLE anonymously?

Yes, if you are affected by or have knowledge of unfair trading practices, you can contact the BLE completely anonymously via our anonymous online tip-off system. In addition to the anonymous online tip-off system, you can use the following channels:

You can write us an anonymous letter.

You can call us with a suppressed phone number and without mentioning your name.

You can address your request to the BLE via your association.

34. What can the BLE do against unfair trading practices?

If the BLE initiates proceedings, it may conduct further investigations to clarify the facts.

If the BLE becomes convinced that a violation of the prohibition of unfair trading practices has occurred, it will issue appropriate orders to remedy the violation and prevent future violations.

In addition, the BLE will publish identified violations on its website for up to three months, stating the name of the buyer, unless the violation is minor.

Finally, the BLE can also impose fines of up to 750,000 euros on buyers who have violated the prohibition of unfair trading practices.

The BLE can also order that the buyer must reimburse the benefits that he gained from the illegal behavior to the affected suppliers.

35. Who can I contact if I have questions about unfair trading practices or want to file a complaint?

With questions or complaints about unfair trading practices, please contact the team of Unit 516:

Telephone: +49 (0)228-6845

-3606 (Dr. David Jüntgen, Head of Unit)
-3311 (Barbara Jeannot, Deputy Head of Unit)
-3639 (Lucas Schöneck, Desk Officer)

Fax: 030-1810 6845-330

Email: 516@ble.de

Federal Office for Agriculture and Food - Unit 516 -
Deichmanns Aue 29
53179 Bonn

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