Agricultural and Food Supply Chain Act 2023

PART 1 Preliminary and General

1. Short title

1. This Act may be cited as the Agricultural and Food Supply Chain Act 2023.

2. Commencement

2. This Act shall come into operation on such day or days as the Minister may appoint by order or orders either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or provisions.

3. Definitions

3. In this Act—

“Act of 2014” means the Companies Act 2014;

“agricultural and food products” has the meaning given by section 6;

“agricultural and food sector” means the industrial sector consisting of businesses dealing in or relating to agricultural and food products (including primary producers);

“agricultural and food supply chain” means the supply chain relating to agricultural and food products;

“agri-food unfair trading law” means provisions of or under this Act, or of European Union legislation, about business-to-business unfair trading practices in the agricultural and food sector;

“authorised officer” means a person appointed under section 71;

“business-to-business” means matters arising between businesses;

“buyer” means any natural or legal person (or group of persons) irrespective of their place of establishment, and any public authority in the European Union, who buys agricultural and food products;

“chairperson” has the meaning given by section 21;

“chief executive” means the chief executive officer of the regulator appointed under section 33;

“compliance notice” has the meaning given by section 78;

“Directive” means Directive (EU) 2019/633 of the European Parliament and of the Council of 17 April 2019[^2] on unfair trading practices in business-to-business relationships in the agricultural and food supply chain;

“enforcement function” has the meaning given by section 14(7);

“establishment day” means the day appointed under section 7;

“Minister” means the Minister for Agriculture, Food and the Marine;

“perishable” has the meaning given by section 59(2);

“premises” includes land, buildings (including dwellings) and any structure (temporary or permanent) on land;

“public authority” means any national, regional or local authority (or association of those authorities) and any body governed by public law (or group of those bodies);

“record” includes all or any part of a written record or anything storing or conveying information (including data and images) by mechanical, electronic or any other means, and includes a copy of a record;

“regulator” means An Rialálaí Agraibhia established under section 8;

“sell” includes offer, expose or keep for sale, invite an offer to buy, distribute, barter or exchange (and references to sale are to be construed accordingly);

“supplier” means any agricultural producer or any natural or legal person who sells agricultural and food products irrespective of their place of establishment (including groups, organisations and representative associations of those persons);

“supply trade organisations” means organisations of producers or suppliers, and associations of those organisations;

“unfair trading practice” has the meaning given by section 57(2)(b).

4. Regulations and orders

4. (1) Regulations under this Act may contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary or expedient for the purposes of the regulations.

(2) Regulations and orders under this Act may—

(a) make provision that applies generally or only in specified cases or circumstances, and

(b) make different provision for different cases or circumstances.

(3) Every order and regulation made by the Minister under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order or regulation is passed by either such House within the next 21 days on which that House sits after the order or regulation is laid before it, the order or regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.

(4) Subsection (3) does not apply to—

(a) an order under section 2,

(b) an order under section 7, or

(c) regulations under section 49.

5. Expenses

5. The expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Public Expenditure, National Development Plan Delivery and Reform, be paid out of money provided by the Oireachtas.

6. Application of Act

6. (1) The provisions of this Act apply in relation to agricultural and food products.

(2) In this Act “agricultural and food products” means—

(a) products listed in Annex I to the Treaty on the Functioning of the European Union,

(b) other products processed for use as food using products listed in that Annex, and

(c) any other product (which may, in particular, include non-food items used in processing, packaging or other operations) specified by the Minister by regulations under section 80(2)(f).

(3) This section is subject to section 56 (which limits the application of Part 3).

PART 2 The Regulator

Chapter 1 Establishment

7. Establishment day

7. The Minister shall by order appoint a day as the establishment day.

8. Establishment

8. There shall stand established on the establishment day a body which shall be known as An Rialálaí Agraibhia (in this Act referred to as the “regulator”).

9. Status

9. The regulator shall be independent in the performance of its functions.

10. Corporate capacity

10. (1) The regulator shall—

(a) be a body corporate with perpetual succession and an official seal,

(b) have power to sue, and may be sued, in its corporate name, and

(c) have power to acquire, hold and dispose of land or an interest in land, and to acquire, hold and dispose of any other property, but the power under this paragraph may be exercised only with the consent of the Minister and the Minister for Public Expenditure, National Development Plan Delivery and Reform.

(2) The regulator shall have a seal and may authorise any of the following to authenticate the official seal by signature:

(a) the chairperson;

(b) any other member of the regulator;

(c) the chief executive;

(d) any other member of staff of the regulator.

(3) Judicial notice shall be taken of the seal of the regulator and an instrument that purports—

(a) to be an instrument made by the regulator, and

(b) to be sealed and authenticated in accordance with this section,

shall be received in evidence and deemed to be a sealed and authenticated instrument without further proof, unless the contrary is shown.

(4) Any contract or instrument, which if entered into or executed by a person not being a body corporate would not require to be under seal, may be entered into or executed on behalf of the regulator by a person authorised (generally or specially) in that behalf by the regulator.

Chapter 2 Functions

11. Fairness and transparency in supply chain

11. (1) The regulator shall promote fairness and transparency in the agricultural and food supply chain.

(2) In exercising its function under this section the regulator shall have regard to the circumstances and needs of the agricultural and food sector including, in particular—

(a) farming businesses,

(b) fishing businesses, and

(c) small food businesses.

12. Information and engagement

12. (1) The regulator shall publish analysis of information about price and market data relating to the agricultural and food supply chain in the State.

(2) In particular, the regulator shall—

(a) collect, analyse and regularly publish reports on price and market data relating to the agricultural and food supply chain, and generally in relation to the agricultural and food sector in the State, and

(b) publish regular analysis and reports on contingency issues in regard to the agricultural and food supply chain.

(3) In pursuance of its duties under this section the regulator may, in particular—

(a) conduct and commission research and surveys,

(b) publish findings and reports,

(c) consider matters outside the State (including price and market data) in so far as they are or may be relevant to the situation in the State, and

(d) seek from businesses within the agricultural and food supply chain any data impacting upon price and margins considered necessary, including—

(i) prices paid and received,

(ii) margin,

(iii) financial and accounting data,

(iv) throughput of agricultural produce,

(v) data in relation to policy and procedure,

(vi) employment status, and

(vii) salary.

(4) Data referenced under paragraph (d) of subsection (3) may be in paper or electronic form, held by a business involved in the agricultural and food supply chain, or otherwise on their behalf.

(5) The regulator shall comply with any request by the Minister to study or analyse, and report on, any specified matter relating to the agricultural and food supply chain.

(6) The regulator may, of its own initiative, conduct or commission a study or analysis of any matter relating to the agricultural and food supply chain, and publish findings and recommendations.

(7) Where the regulator believes that data relating to a business obtained under paragraph (d) of subsection (3) is or is likely to be of a commercially sensitive nature and is not in the public domain, the regulator shall not publish the data without the consent of the business (notwithstanding section 51).

13. Compliance with unfair trading law

13. (1) The regulator shall be responsible for enhancing understanding of and compliance with agri-food unfair trading law.

(2) In pursuance of its responsibilities under subsection (1) the regulator shall, in particular—

(a) encourage fairness and transparency in the agricultural and food supply chain,

(b) promote fairness in trading practices through engagement and consultation with stakeholders,

(c) publish notices and guidelines containing practical guidance on compliance with agri-food unfair trading law and related matters,

(d) promote public awareness through public information campaigns about agri-food unfair trading law and related matters, and

(e) consult and cooperate with other authorities (whether in the State or elsewhere) with responsibility for the promotion of trading fairness and transparency (whether in relation to the agricultural and food sector or otherwise).

14. Enforcement of unfair trading law

14. (1) The regulator shall be responsible for enforcing agri-food unfair trading law.

(2) In pursuance of its responsibilities under subsection (1) the regulator shall, in particular—

(a) carry out inspections, including unannounced inspections, of buyers and suppliers,

(b) investigate suspected breaches of agri-food unfair trading law,

(c) promote, where appropriate, the use of alternative dispute resolution procedures as a means of resolving disputes between buyers and suppliers,

(d) bring proceedings for offences under this Act, and

(e) refer cases to the Director of Public Prosecutions where the regulator believes that an indictable offence under this Act has been committed.

(3) Without prejudice to the generality of subsection (1), where the regulator finds that a buyer has contravened a provision of Agri-Food Unfair Trading Regulations, it shall use its powers under this Act to require the buyer to bring the prohibited contravention to an end.

(4) The regulator—

(a) is hereby designated as the enforcement authority in accordance with Article 4 of the Directive (designated enforcement authorities), and

(b) shall take any action the regulator considers necessary for the purpose of fulfilling its functions as the enforcement authority.

(5) In accordance with subsection (4), the regulator shall cooperate with the European Commission and any other enforcement authorities in accordance with Article 8 of the Directive (cooperation amongst enforcement authorities), and, in particular, the regulator shall—

(a) provide other enforcement authorities with mutual assistance in cross-border investigations,

(b) participate in the annual meetings of enforcement authorities convened in accordance with Article 8(2) of the Directive and take action for the implementation of recommendations adopted in accordance with that Article,

(c) assist the Minister with the preparation of reports for the purposes of Article 10(2) of the Directive (reporting), and

(d) assist the Minister in complying with requests for additional information in accordance with Article 12(3) of the Directive (evaluation).

(6) In performing its functions under this section the regulator shall cooperate with other authorities (whether in the State or elsewhere) with responsibility for the enforcement of laws relating to supplier protection and the promotion of fairness and transparency in the agricultural and food supply chain.

(7) A reference in this Act to an “enforcement function” is a reference to a function under this section.

15. Guidelines

15. (1) The regulator may, for the purpose of protecting supplier interests, publish guidelines for buyers about—

(a) supplier protection, and

(b) trading practices, whether generally or in a particular trade, business or professional sector.

(2) Before publishing guidelines the regulator may consult on draft guidelines.

(3) Guidelines under this section are admissible in evidence in any proceedings before a court and may be taken into account in determining any question.

(4) A failure on the part of a person to observe guidelines under this section shall not, of itself, render that person liable to any proceedings.

16. Review of codes

16. (1) A person representing one or more buyers may submit a code of practice to the regulator for review.

(2) A code shall be submitted in the form and manner specified by the regulator.

(3) A person submitting a code of practice for review shall provide the regulator with any information the regulator considers necessary or appropriate.

(4) The regulator may comment on a code of practice submitted under this section.

(5) The fact that the regulator does, or does not, comment on a code of practice submitted under this section implies neither approval nor disapproval of the code, and shall not be taken to inhibit the regulator in performing any function (including exercising any power) under this Act.

(6) A code of practice issued by one or more buyers (whether or not submitted for review under this section) is admissible in evidence in any proceedings before a court and may be taken into account in determining any question in respect of the persons issuing the code.

17. Information and advice

17. (1) The regulator shall be responsible for providing information and advice to the Minister about—

(a) the agricultural and food sector, and

(b) agri-food unfair trading law.

(2) In particular, the regulator shall comply with any request of the Minister for advice on any matter which, in the opinion of the Minister, is likely to affect—

(a) fairness and transparency in the agricultural and food supply chain,

(b) the agricultural and food sector, or

(c) any other matter relating to the functions of the regulator.

(3) A request under subsection (2) may require the regulator to—

(a) undertake or commission research and analysis, and

(b) report and make recommendations in relation to policy matters or proposals for legislative change.

(4) The regulator shall report to the Minister within 12 months of its establishment date as to its ability to acquire data under section 12(3)(d), and make any appropriate recommendation so as to ensure the regulator is empowered to access or seize such data it requires to meet its obligations.

(5) The regulator may also advise the Minister, and do anything mentioned in subsection (3), on its own initiative.

(6) In the performance of its functions under this section the regulator may identify and comment on constraints imposed by any enactment or administrative practice on the efficient operation of the agricultural and food supply chain in the economy of the State.

18. Consideration of legislation

18. (1) The Minister may consult the regulator regarding proposals for legislation relating to any aspect of fairness and transparency in the agricultural and food supply chain.

(2) The regulator shall keep under review, and comply with any request of the Minister to review, the operation of—

(a) regulations under this Act, and

(b) other statutory provisions which relate to or affect fairness and transparency in the agricultural and food supply chain.

(3) The regulator shall—

(a) make recommendations to the Minister, or another responsible Minister, for changing those regulations and provisions, and

(b) comply with any request of the Minister to assist in the preparation of draft legislation.

(4) Before making recommendations under this section the regulator shall consult—

(a) such persons as it considers appropriate, and

(b) any persons specified for that purpose by the Minister.

19. Transfer of functions to regulator

19. (1) The functions vested in the Minister by the European Union (Unfair Trading Practices in the agricultural and food supply chain) Regulations 2021 (S.I. No. 198 of 2021) are transferred to the regulator on the establishment day (together with any rights, liabilities, administration and business in connection with those functions).

(2) In so far as necessary or appropriate in connection with the transfer under subsection (1)—

(a) on and after the establishment day, references to the Minister in any Act or instrument are to be read as being or including references to the regulator,

(b) anything commenced before the establishment day by the Minister may be continued on or after that day by the regulator,

(c) where legal proceedings, to or in which the Minister is party or prosecutor, are pending immediately before the establishment day, on and after that day the name of the regulator shall be taken to be substituted for that of the Minister (and the proceedings shall not abate by reason of the substitution),