Royal Decree 1363/2012 of 28 September 2012 regulating the recognition of milk producers ' organisations and inter-branch organisations in the milk sector and laying down their conditions of It is the basic regulation that regulates in our country the measures of the so-called "milk package". This is a set of provisions whose main objective is to improve the balance of the value chain in the dairy sector and to strengthen the negotiating position of producers.

This royal decree was drawn up in line with the provisions of the Community reference rules, in particular Regulation (EU) No 261/2012 of the European Parliament and of the Council of 14 March amending the Regulation (EC) No 1234/2007 as regards contractual relations in the milk and milk products sector.

Following the adoption of the reform of the Common Agricultural Policy, the Regulation has been repealed by Regulation (EU) No 1308/2013 of the European Parliament and of the Council of 17 December 2013 establishing the common organisation of the markets in agricultural products and repealing Regulations (EEC) No 922/72, (EEC) No 234/79, (EC) No 1037/2001 and (EC) No 1234/2007. As the new regulation includes new provisions related to the "milk package" measures, it is appropriate to include and regulate them in national legislation.

On the other hand, Law 12/2013 of 2 August, of measures to improve the functioning of the food chain, introduced a new legal framework for the application of commercial relations between the operators involved in the food chain. food chain, from production to the distribution of food or food products, the application of which to the dairy sector, as provided for in the fifth additional provision of the same law, is to be understood in the framework of this regulation This is a specific issue, which is why its implementation must be limited to the provisions of this directive. decree.

This additional provision, fifth of Law 12/2013 of 2 August, determines that the provisions of this provision are without prejudice to the specific regulation of the milk sector, the provisions of which will prevail in the event of conflict to that law. This is a partial safeguard, which affects only those precepts that are incompatible, for which the prevalence of the legislation of the dairy sector is declared. In the absence of this regulation, the provisions of Law 12/2013 of 2 August, many of whose precepts are not only fully compatible but essential for the correct application of this legislation, are fully implemented.

Thus, in particular, Law 12/2013, of 2 August, requires the written contracting of those commercial relations of operators carrying out commercial transactions, provided that these are in the amount of more than 2,500 euros, and that they are in some of the situations of imbalance described in article 2.3 of the above mentioned law, circumstances that do not have to be present in the field of the dairy sector. It also provides that where the payment of the price is made in cash against the delivery of the foodstuffs, it is not necessary to enter into a food contract, with the parties being obliged to identify themselves as operators and to document such business relationships by issuing the corresponding invoice.

However, in dairy procurement, the written procurement of all supplies of raw milk that takes place in Spain from a producer to a processor, without exception and under stricter conditions, is required.

This Law 12/2013, of 2 August, also regulates sanctioning powers, making infringements and penalties for non-compliance, inter alia, of contractual obligations, which in the field of the milk package have to Therefore, in accordance with the provisions of this royal decree, it has been stated above.

According to Article 26 of Law 12/2013, of 2 August, it is for the General Administration of the State to exercise the power of sanction when the contracting parties have their respective main social offices in different autonomous communities; where the contract affects an area higher than that of an autonomous community for the foreseeable traceability of most of the food or foodstuff covered by the contract. Moreover, it will be up to the competent bodies of the autonomous communities to exercise the power of sanction in the other cases. Precise adaptations are thus contained in order to ensure the exercise of shared competences.

On the other hand, the experience gained over the two years of implementation of the compulsory contract in the milk sector makes it necessary to make certain changes in order to improve and adapt the procurement system after its putting in place, avoiding as far as possible some detected practices that could break the spirit that originated the measures of the "milk package".

First of all, it is necessary to establish, for the contracts between farmers and first purchasers of milk, the annual duration of the contract, without prejudice to the right of the farmer, recognised in Community legislation, to be able to reject this minimum duration.

The minimum duration of one year is the real guarantee of the stability of the collection of the milk produced for the producer and of the necessary supply of raw material for the transformer, especially in the near future, in which the Dairy contract will be the tool for the management and regulation of the market, and reduce, in this way, to a minimum the cases in which a lower duration is contracted.

Other aspects should also be regulated, such as the permitted tolerance in the volume of milk under contract, in order to avoid situations where it is excessively broad, could lead to distortions in the relationship contract. Similarly, contracts should be regulated in order to avoid, in particular, changes in the conditions for the procurement of milk which has already been delivered.

Also, in order to simplify, streamline and improve transparency, the deadlines and content of the communications should be adapted to the contract database. In addition, in addition to the above, in order to facilitate the inspection work of the competent authorities, although only two copies of the contract are deemed necessary, certain exceptions should be laid down in which the three copies, as it happens now.

The last adaptation, also with the aim of optimising the system of contracts in the sector, is to have a mediation mechanism that acts by mutual agreement in those cases where after a process of negotiation between a producer organisation and a milk buyer would not be able to agree on any element of the contract, but the willingness to reach it was maintained.

As far as the sanctioning regime is concerned, it is necessary to clarify the system, given that, in various aspects, the Law 12/2013 of 2 August, and the rest, the legal rules for the classification of infringements and Sanctions applicable in this respect, state or regional.

This royal decree has been submitted to the autonomous communities and affected sectors.

In its virtue, on the proposal of the Minister of Agriculture, Food and Environment, with the prior approval of the Minister of Finance and Public Administrations, heard the Council of State, and after deliberation of the Council of Ministers at their meeting on 27 February 2015,

DISPONGO:

Single item. Amendment of Royal Decree 1363/2012 of 28 September 2012 on the recognition of the organisations of milk producers and inter-branch organisations in the milk sector and laying down their conditions of use procurement.

Royal Decree 1363/2012 of 28 September 2012 regulating the recognition of milk producers ' organisations and inter-branch organisations in the milk sector and laying down their conditions of procurement, is amended as follows:

One. Article 2 (d) is replaced by the following text:

"(d) Producer: Any natural or legal person or any group of natural or legal persons, regardless of the legal status granted that is the holder of a livestock holding dedicated to dairy production."

Two. The following paragraphs (f), (g), (h) and (i) are added to Article 2:

" f) Receiver: the one who receives raw milk from cow and/or sheep and/or goat in the subscription of a contract to buy raw milk.

g) Supplier: a supplier who supplies raw cow and/or sheep's milk and/or goat's milk to a buyer involved in the subscription of a purchase contract for the sale of raw milk.

h) Headquarters of the effective management: the place where the key business and management decisions are made, necessary to direct the business of the entity.

(i) Intermediary: the one who mobilizes or transports raw milk from a farmer or other intermediary to a processor or other intermediary, producing in each case a transfer of the ownership of the raw milk. "

Three. In Article 5 (1), the words 'The reference period for the calculation shall be the period corresponding to the 12 months preceding the submission of the application for recognition' shall be replaced by the following: ' The calculation shall be made using the last 12 declarations of milk deliveries available at the time of verification of compliance with the minimum annual marketable production, by the competent authority ".

Four. The following paragraph (e) is added to Article 6 (2):

"e) The conditions under which the outsourcing of activities will be performed in the event of the use of Article 9a of this royal decree."

Five. The following Article 9a is

:

" Article 9a. Outsourcing of activities.

1. Producer organisations, and associations of producer organisations, may outsource any of their activities, other than production, to any undertaking, including their subsidiary undertakings, under the conditions laid down in the set up by the European Union legislation.

A subsidiary undertaking shall be understood as a subsidiary undertaking for the purposes of the preceding paragraph, which is controlled directly or indirectly by an organisation or association as follows:

(a) By means of a significant participation, exceeding 50% of the share capital or voting rights.

(b) Ö for the right to appoint or revoke the majority of the members of the administrative, management or control body.

(c) Ö for the right to exercise a dominant influence on it, under a contract concluded with it or a statutory clause thereof.

2. In the case of application of the above paragraph, the organisations and associations shall be responsible for ensuring the performance of the outsourced activity and for the control and supervision of the trade agreement relating to the performance of the activity. "

Six. The following Article 9b is

:

" Article 9b. Agreements, decisions and concerted practices of milk producer organisations and associations.

1. Recognised organisations and associations may reach agreements, decisions and concerted practices which relate to the production or sale of milk products or the use of common storage, treatment or processing of milk products, provided that they do not jeopardise the objectives of Article 39 of the Treaty on the Functioning of the European Union.

2. Agreements, decisions and concerted practices which entail the obligation to charge an identical price or through which competition is excluded may not be reached.

3. Agreements, decisions and concerted practices which comply with the above conditions shall not be subject to or require prior approval by the competent authorities. '

Seven. Article 11 is replaced by the following:

" Article 11. Minimum contract requirements.

1. The contract shall be concluded before the supply of the raw milk is made and shall include at least the elements set out in Annex III.

2. All elements of the contract must be freely negotiated by the parties and previously known to the firm. Contracts in which a producer participates as a producer shall have a minimum duration of one year.

To do this, the milk recipient must make a written contract offer with a minimum duration of one year. The tender must be submitted at least two months before the end of the contract in force and in the case of a new contractual relationship, at least two months before the start of the milk deliveries.

The offer must be identified as such and include all the data included in Annex III, as well as the filing date. Two copies of the offer shall be made, which shall be signed and retained by both parties, at least for a period of two years after their submission.

3. By way of derogation from paragraph 2 of this Article, the producer may refuse that minimum duration in duly justified cases and notified by the producer to the competent authority of the autonomous community where he/she is operation as soon as possible. This communication shall be accompanied by a copy of the initial one-year contract offer submitted by the recipient.

In case the recipient who submitted the offer has the seat of its effective address in an autonomous community other than that of the producer, the competent authority receiving the notification of the refusal shall communicate this circumstance and the recipient concerned to the relevant competent authority.

4. If the price established in the contract is variable and is calculated by combining several factors established in the contract, the parameters to which the price is referenced will be objective, verifiable, non-manipulable and will be sourced from sources. public and accessible by the parties, which shall also be specified in the contract.

No bonuses or depreciations may be applied to the price that are not reflected in the contract.

5. Concurrent contracts between the same supplier and the same receiver are not allowed. To this end, a mechanism will be developed that makes it impossible to write to the database established in Article 16 of this royal decree. "

Eight. The following Article 11a is

:

" Article 11a. Formalization of the contract.

1.Two copies of each contract must be signed, with a copy held by each of the signatory parties. Copies of the contracts entered into must be retained for at least two years after the end of the contract.

2. The contract may include, if so agreed by the parties, a clause relating to the conciliation and prior hearing by a monitoring committee set up within the Dairy Interprofessional Organisation, in the event of differences in the interpretation or execution of the contract.

The Monitoring Commission shall ensure the confidentiality of the information contained in the contracts, and may delegate to an independent contributing entity and accredited solvency the custody of the contracts and the data corresponding confidential.

3. In the case referred to in paragraph 2, three copies of the contract shall be signed, the third copy remaining in the custody of the Commission for the monitoring of the milk interbranch. These circumstances should be reflected in the contract.

4. If the milk-buying undertaking has its head office of the effective management in an autonomous community other than that in which the milk is received, an additional copy of the contract, which must be maintained, must be maintained. in the reception establishment. "

Nine. The following Article 11b is

:

" Article 11b. Amendments to the signed contracts.

1. The conditions initially laid down in the contract may be exceptionally modified by means of contract signed by both parties, and always before the end of the contract being amended. Amendments which aim to change the initial conditions of the contract relating to milk which has already been submitted shall not be valid, nor may the dates of entry into force and/or termination of the contract be amended.

2. By way of derogation from the above paragraph, neither the agreed price nor the price type (fixed, variable, mixed) may be amended either.

3. Where the quantity of milk corresponding to the agreed volume has been exhausted before the end of the term of the contract, once the agreed tolerance has been applied, it may be amended once and after agreement between the parties, the volume by means of addendum, while maintaining the remaining elements of the contract, in a proportion that amounts to a maximum of 25 per cent of the volume initially agreed.

4. Contracts that include amendments or cross-cuts shall not be considered valid for the purposes of this royal decree.

5. For contracts which are automatically renewable, renewable or indefinite, and regardless of the renewal or extension conditions included in the contract, if one of the parties wishes not to renew or not to extend the contract, communicate it to the other party in a manner that is at least two months prior to the date of conclusion of the contract, with the exception of force majeure.

6. In the event of a change in ownership of the production holding of the milk under contract, the new holder may be subrogated to the existing contract in force, if he so decides and notifies the other party, and the other party does not express his opposition in the Ten days 'time limit.'

Ten. Article 12 (2) is replaced by the following:

" 2. In compliance with the derogations provided for in Article 11a (3) and (4), in the case of cooperatives receiving milk from their producer partners, the copies of the contract laid down in those paragraphs shall be replaced by a copy of their statutes and/or agreements where such terms of the contract are established. '

Once. The following Article 13a is

:

" Article 13a. Mediation system.

If during a process of negotiation of the terms of a contract, no agreement is reached between a producer organisation and the recipient of the milk, in cases where there is a prior written offer or by any other means which allows for the consistency of their content, both parties, by mutual agreement, may benefit from a mediation system.

The mediation system shall be carried out by means of the corresponding mediation act, by any of the mediation institutions established under Law 5/2012 of 6 July of mediation in civil matters and trade, in accordance with the procedure laid down in Title IV of that Law.

All elements of the contract may be the subject of mediation, in particular the price and volume of milk covered by the contract. "

Twelve. Article 16 is replaced by the following:

" Article 16. Duty of information.

1. The recipient of the raw milk which has contracted its purchase with a supplier who is a producer shall, by means of computer support, communicate to the supply declaration database existing in the Spanish Agricultural Guarantee Fund of the Ministry of Agriculture, Food and the Environment, or the one believed to replace it, the data included in Annex IV of this royal decree, within a minimum period of seven days before the date of the beginning of the contract and always before starting the delivery of the milk subject to the contract.

2. In addition, all the adendas made in the contracts, as well as the changes in ownership of the holding within the minimum period of seven days before the start date of the contracts, shall also be notified to the database.

3. In the case of craft cheese and in those other where the competent authority of the autonomous community considers it appropriate, the data included in Annex IV may be submitted by means of a paper registered on paper, the autonomous community responsible for writing the same to the database.

4. To this end, the Ministry of Agriculture, Food and Environment shall establish a model for the submission of data, as well as the description of the structure of the computer file to be used for the submission.

5. The competent authorities of the autonomous communities or cities of Ceuta and Melilla, will communicate annually to the Directorate General of Agricultural Productions and Markets of the Ministry of Agriculture, Food and Environment, before 15 March. February of each year, the total volume of milk subject to collective bargaining during the previous year, which has been communicated to them by the organizations or the association, pursuant to Article 14 (6) of this royal decree. "

Thirteen. In Article 24, the reference to the Ministry of Agriculture, Food and the Environment should be replaced by the mention of the Ministry of Agriculture, Food and the Environment and the Food and Information Agency in the field of their powers.

Fourteen. Article 25 shall be replaced by

following:

" Article 25. Sanctioning regime.

In the event of non-compliance with this royal decree, the sanctioning regime established by Law 12/2013 of 2 August, of measures to improve the functioning of the food chain, and, in all cases, will be applicable. (a) the provisions of the State or regional rules of application shall apply, without prejudice to the civil, criminal, or administrative responsibilities of another order which may arise. "

Quince.A new item, 26, is added with the following content:

" Article 26. Collaboration between Public Administrations.

1. The various competent public administrations will adjust the actions they develop in the framework of what is foreseen in this royal decree to the principles of mutual information, cooperation and collaboration.

2. In addition, the competent public authorities shall ensure, in the application of this royal decree, compliance with the rules in force on the guarantee of the market unit, by adopting the regulatory, cooperation and cooperation which is necessary in the exercise of its own powers.

3. In the event that in the development of its control activities, the competent authorities of the Autonomous Communities will detect non-compliance with other aspects not related to the obligation of hiring, regulated in Law 12/2013, of 2 of August, they will be brought to the attention of the Agency for Food Information and Control. "

Sixteen. Annex III is replaced by the following:

" ANNEX III

Minimum Contract Data

1. Identification of the parties.

2. Object of the contract.

3. Price to be paid for the supply, which may be:

-fixed,

-variable and calculated by combining several factors established in the contract, which may include market indicators reflecting changes in market conditions, the volume provided and the quality or composition of the raw milk supplied or

-mixed, including a fixed part and another variable.

In all cases, prices may also include an adjustment based on factors that are dependent on factors such as: volume supplied, physical-chemical or sanitary quality, or other parameters.

4. Volume in litres to be supplied: the margin of tolerance shall be included as a percentage, which shall not exceed 10%.

5. Supply schedule. At least the frequency of milk supply or collection may be indicated, for example, for example, the maximum period (days) after milking.

6. Duration of the contract. The duration, which in the case of contracts concluded between a producer and a recipient, must be specified shall be at least one year, without prejudice to Article 11 (3). An indefinite duration contract with a termination clause will be accepted.

7. Conditions for renewal, modification and extension, where applicable.

8. Payment terms: time limits and procedures:

Deadline: The maximum time limit for payment and applicable interest should be indicated in case of delay.

Procedure: The form of payment must be indicated: transfer, check, and the date on which it will take place (for example, "before the day ...... of each month").

9. Collection or provisioning modes.

According to where the milk ownership change takes place:

-In origin: The collection of the milk is done at the supplier's premises.

-At destination: The transport of the milk is processed by the supplier for storage at the receiver's premises.

10. Rules applicable in case of force majeure. The force majeure cases and rules to be applied in this case will be indicated.

11. Rights and obligations of the contracting parties.

12. Causes, formalization and effects of extinction. "

seventeen. A new Annex IV is included with the following content:

" ANNEX IV

Minimum contract data to be communicated by the buyer to the delivery declarations database

DECLARATION RECEIVER IDENTIFICATION:

DNI or NIF.

Last name and name or social reason.

Domicile, locality, municipality, postal code, Autonomous Community.

PRODUCER IDENTIFICATION:

DNI or NIF.

Last name and name or social reason.

Domicile, locality, municipality, postal code, Autonomous Community.

DATA BY RECORD:

Contract first offer date.

Producer's Renunciation to the minimum duration of one year: yes/no.

Effective date.

Effective End Date.

Species.

Contracted volume (litres).

Contracted Volume Tolerance (%).

Price Type. Fixed, variable, mixed. "

First transient disposition. Adaptation of the contracts in force.

The contracts in force signed before the entry into force of this royal decree affecting quantities delivered after the entry into force of this royal decree, will be adapted to the provisions of the present one in the a maximum of one month.

Second transient disposition. Database and communications.

As soon as the database and the communications system are not operational, as set out in Article 16 (1) of Royal Decree 1363/2012 of 28 September 2012, in the wording given to the same by Paragraph 12 of the only article of this royal decree, the provisions of paragraphs 1, 2 and 3 of Article 16 of Royal Decree 1363/2012, of 28 September, in its wording before this royal decree, shall apply.

It will be communicated to those interested in the operation of the aforementioned database, by the publication of an announcement on the website of the Ministry of Agriculture, Food and Environment in the section corresponding to the dairy cattle.

Single end disposition. Entry into force.

This royal decree will enter into force on the day following its publication in the "Official State Gazette".

Given in Madrid, on February 27, 2015.

FELIPE R.

The Minister of Agriculture, Food and the Environment,

ISABEL GARCÍA TEJERINA