Royal Decree 125/2015 Of 27 February, Amending Royal Decree 1363/2012, Of 28 September, By The Recognition Of Milk Producer Organizations And Interbranch Organizations In Regulating Secto ...

Original Language Title: Real Decreto 125/2015, de 27 de febrero, por el que se modifica el Real Decreto 1363/2012, de 28 de septiembre, por el que se regula el reconocimiento de las organizaciones de productores de leche y de las organizaciones interprofesionales en el secto...

Read the untranslated law here: http://www.boe.es/buscar/doc.php?id=BOE-A-2015-2118

Royal Decree 1363/2012, of 28 September, by the recognition of milk producer organizations and interbranch organizations in the dairy sector is regulated and contract conditions are established, is the basic rules governing in our country measures called "milk package". This is a set of rules whose main objective is to improve the balance of the value chain in the dairy sector and to strengthen the negotiating position of producers.

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

Following the adoption of the reform of the common agricultural policy, that regulation has been repealed by Regulation (EU) No 1308/2013 of the European Parliament and the Council of 17 December 2013, by which the common organization of markets in agricultural products is created and Regulations (EEC) No 922/72, (EEC) No 234/79, (EC) No 1037/2001 and repealing ( EC) No 1234/2007. Since the new regulation includes new provisions related to measures of "milk package" comes to include and regulate them in national legislation.

Moreover, Law 12/2013, of 2 August, on measures to improve the functioning of the food chain, introduced a new legal framework applies to trade relations between the operators involved in the food chain, from production to distribution of food or food products, the application of the dairy sector, as stated in the fifth additional provision of the Act, must be understood in the context of this specific regulation, so that its application is to be understood confined to the provisions of this royal decree.

The fifth additional provision of Law 12/2013, of August 2, it determines that the provisions thereof are without prejudice to the specific regulation of the dairy sector, whose provisions prevail in case of conflict with the Act . This is a partial safeguard that affects only those provisions that are incompatible, for which the prevalence of rules in the dairy sector is declared. In matters not covered by this regulation it is fully subject to the provisions of Law 12/2013, of 2 August, many of whose precepts are not only fully compatible but essential for the proper application of those rules.

So, specifically, the Law 12/2013, of August 2, requires written hiring those commercial relations operators conducting commercial transactions, provided that they are exceeding 2,500 euros, and they they are in some of the imbalance situations described in Article 2.3 of the Act, circumstances do not have to compete in the field of the dairy sector. It also provides that when the price payment is made in cash upon delivery of foodstuffs will not be necessary to sign a food contract, given the parties the obligation to identify themselves as operators and document such commercial relations by issuing an invoice.

However, in the dairy recruitment hiring written all deliveries of raw milk that take place in Spain from a producer to a transformer, without exception and stricter conditions are forced.

This Law 12/2013, of 2 August, also regulates the sanctioning power, typifying offenses and penalties for noncompliance, among others, of the contractual obligations in the field of dairy package are to be understood therefore, accordance with the provisions of this royal decree, as noted above.

According to article 26 of Law 12/2013, of August 2, corresponding to the General State Administration exercising disciplinary powers where contracting parties have their respective major social sites in different regions; when the contract affects a higher level of an autonomous community because of the foreseeable traceability of most of the food or food product under contract. Moreover, it is for the competent bodies of the autonomous communities exercise of sanctioning powers in other cases. Thus they contained precise to guarantee the exercise of shared competence adaptations.


Moreover, the experience accumulated over the two years of the binding contract in the dairy sector make necessary modifications to improve and adapt the recruitment system after its implementation, avoiding, insofar possible, they detected some practices that could break the spirit that originated measures 'milk package'.

First, it is necessary to establish for contracts between farmers and first purchasers of milk, the annual duration of the contract, without prejudice to the right of the farmer, recognized in Community law, it may reject this minimum duration.

The minimum duration of one year is the real guarantee of the stability of the collection of milk produced for the producer and the supply of raw materials necessary for the transformer, especially in the near future, in which the milk contract will tool for management and market regulation, and reduce thus at least the cases in which a shorter duration is hired.

They must also regulate other aspects such as the allowable tolerance in the volume of milk under contract to avoid situations where being too broad and could lead to distortions in the contractual relationship. They should also be regularized contracts addenda to avoid, in particular, changes in the conditions of employment of milk has already been delivered.

Also, in order to simplify, streamline and improve transparency, must adapt the timing and content of communications to the database of contracts. Also, besides the above, in order to facilitate the work of inspection by the competent authorities, while only making two copies of the contract it is deemed necessary, should be regulated certain exceptions in which three copies are maintained, as it happens now.

The latest adaptation, also with the aim of optimizing the system of contracts in the sector, is to have a mediation mechanism act by mutual agreement in cases in which after a process of negotiation between an organization producers and a buyer of milk did not get to reach agreement on any element of the contract, but the will to achieve it should be maintained.

As regards the sanctions regime, it is necessary to clarify the same, given that in several aspects will apply Law 12/2013, of 2 August, and the rest, the legal regulations typing offenses and penalties applicable thereto, national or regional.

This royal decree has been subject to consultation of the autonomous communities and the sectors concerned.

By virtue of a proposal from the Minister of Agriculture, Food and Environment, with the prior approval of the Minister of Finance and Public Administration, having consulted the Council of State and after deliberation by the Council of Ministers at its meeting on February 27, 2015,

DECREE:

Sole Article. Amendment of Royal Decree 1363/2012, of 28 September, by the recognition of milk producer organizations and interbranch organizations in the dairy sector is regulated and contract conditions are established.

Royal Decree 1363/2012, of 28 September, by the recognition of milk producer organizations and interbranch organizations in the dairy sector is regulated and contract conditions are established, it is amended as follows :

One. paragraph d) of Article 2 is replaced the following:

"D) Producer:. Any natural or legal person or group of natural or legal persons, whatever legal status granted to the holder of a cattle farm for milk production"

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

"F) Receiver: one that receives raw cow's milk and / or sheep and / or goat in the signing of a contract for sale of raw milk.

G) Supplier: one that provides raw cow's milk and / or sheep and / or goat to a buyer involved in the signing of a contract for sale of raw milk.

H) Place of effective management: the place where key management and commercial decisions necessary to conduct the business of the entity are taken.

I) Intermediary: one that moves or transports raw milk from a farmer or another intermediary to a processor or other intermediary occurring in each case a transfer of ownership of the raw milk '
.

Three. In paragraph 1 of Article 5, the expression: "The reference period for the calculation shall be that preceding the filing of the application for recognition 12 months" is replaced by the following: "The calculation is performed using the latest twelve statements of milk deliveries available at the time of verification of compliance with minimum annual marketable production, by the competent authority ".

Four. the following paragraph e) is added to paragraph 2 of Article 6:

"E) The conditions under which outsourcing activities should make use of Article 9a of this Royal Decree will be done."

Five. The following Article 9a is added:

'Article 9a. Outsourcing activities.
1.The
producer organizations and associations of producer organizations may outsource any of its activities, other than production, any company, including its subsidiaries, under the conditions established by the regulations of the European Union.

Shall mean a subsidiary for the purposes of the preceding paragraph entity that is directly or indirectly by an organization or association controlled as follows:

A) Through meaningful participation exceeding 50% of capital or voting rights.

B) or the right to appoint or remove a majority of the members of the board, management or control of it.

C) or the right to exercise a dominant influence over it, under a contract concluded with it or a statutory clause it.

2. If implemented the previous section, organizations and associations will be responsible for ensuring the performance of the outsourced activity and the control and supervision of the commercial agreement on the implementation of the activity. "

Six. The following Article 9 is inserted:

'Article 9b. Agreements, decisions and concerted practices of organizations and associations of milk producers.

1.The recognized organizations and associations may enter into agreements, decisions and concerted practices relating to the production or sale of dairy products or the use of joint facilities for storage, treatment or processing of dairy products, provided that jeopardize the objectives of Article 39 of the Treaty on the Functioning of the European Union.

2. They can not be reached agreements, decisions and concerted practices involving the obligation to charge an identical price or through which competition is excluded.

3. Agreements, decisions and concerted practices which fulfill the above conditions not be subject, nor require prior approval by the competent authorities. "

Seven. Article 11 is replaced by the following:

"Article 11. Minimum requirements of the contract.

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

2. All elements of the contract should be freely negotiated by the parties and previously known signature. Contracts in participating as a supplier producer shall have a minimum duration of one year.

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

The tender must be identified as such and include all the information listed in Annex III as well as the filing date. They should be two copies of the offer, which must be signed and retained by both parties, at least for a period of two years after the presentation made.

3. Notwithstanding the provisions of paragraph 2 of this Article, the producer may reject such a minimum duration in duly justified cases and notified by the producer to the competent authority of the autonomous community where their exploitation as soon as possible. This communication shall be accompanied by a copy of the initial offer of one-year contract by the receiver.

If the receiver who submitted the offer has established its effective management in a different autonomous community producer, the competent authority receiving the notice of denial communicate this and the receptor affected the competent authority corresponding.


4. If the price established in the contract is variable and is calculated by combining various factors set forth therein, the parameters that is referenced price shall be objective, verifiable, non-manipulable and come from public and accessible sources by the parties, they must also be specified in the contract.

No increases or reductions on the price that are not reflected in the contract may apply.

5. the simultaneous existence of contracts between the same supplier and the same receiver is not allowed. To this end a mechanism that prevents recording in the database established in Article 16 of this Royal Decree will develop. "

Eight. The following Article 11a is added:

"Article 11a. Formalization of the contract.

1.Se must sign two copies of each contract, leaving a copy in the possession of each of the signatories. Copies of contracts must be kept, at least for a period of two years after the completion.

2. The contract may include, if agreed to by the parties, a clause on conciliation and preview by a monitoring committee constituted within the Interprofessional Organization Way, in case there are differences in the performance of the contract .

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

3. In the case referred to in paragraph 2 shall be signed three copies of the contract, leaving the third copy in the custody of the Commission to monitor the milk interprofessional. These circumstances should be reflected in the contract.

4. In the event that the buyer of milk has its place of effective management in a different autonomous community to one in which the reception of milk is performed, an additional copy of the contract, which must be maintained in setting should be performed reception. "

Nine. The following Article 11b is added:

"Article 11b. Amendments to contracts.

1. The conditions initially established in the contract may be exceptionally modified by addenda signed by both parties, and always before the end of the contract being modified. Not valid modifications that aim to change the original contract conditions concerning the milk has already been delivered, nor can change the dates of entry into force and / or termination of the contract.

2. Notwithstanding the provisions of the preceding paragraph, it may not be altered by addendums, the agreed price, or the price type (fixed, variable, mixed).

3. In the case before the end of the contract period has been exhausted the amount of milk corresponding to the agreed amount, after application of the established tolerance may be amended only once and prior agreement between the parties, the volume with addenda, keeping unchanged the other elements of the contract, at a rate involving at most a change of 25 percent of the initially agreed volume.

4. shall not be considered valid for the purposes of this Royal Decree contracts including amendments or deletions.

5. In automatically renewable, renewable or permanent contracts, irrespective of the conditions for renewal or extension included in the contract, if one party wishes not to renew or not to renew it, it shall notify irrefutably to the other party with at least two months prior to the date of conclusion of the contract, except in cases of force majeure.

6. In case of change of ownership of the farm of production of milk under contract, the new owner may be subrogated to the existing contract in force, if it so decides and notifies the other party, and it has no objections to the within ten days. "

Ten. Paragraph 2 of Article 12 is replaced by the following:

'2. In compliance with the exceptions set out in paragraphs 3 and 4 of Article 11a, in cooperatives that receive milk from their producing partners, copies of the contract of those paragraphs will be replaced by a copy of its bylaws and / or agreements where establish such conditions of the contract. "

Once. The following Article 13a is added:

"Article 13a. Mediation system.


If during a process of negotiating the terms of a contract is not reached an agreement between a producer organization and recipient of milk, in cases where there is a previous offer in writing or by any other means which allows to record its content, both parties, by mutual agreement, they may benefit from a system of mediation.

The mediation system will be made by the corresponding act of mediation by any mediating institutions established under the Law 5/2012, of 6 July, mediation in civil and commercial matters, following the procedure established title IV of the Act.

May be the subject of mediation all elements of the contract, including the price and the 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 that has contracted purchase with a supplier who is a producer, communicated by computer support, the database statement existing deliveries in the Spanish Agricultural Guarantee Fund of the Ministry of Agriculture, Food and Environment environment, or is believed to replace it, the data included in Annex IV of this royal decree, within a minimum period of seven days before the start date of the contract and always before delivery milk under contract.

2. Also, they will also be notified to the database all addenda made in the contracts as well as changes in ownership of exploitation at least seven days before the start date of validity of the same.

3. In the case of artisanal cheese factories and in those where the competent authority of the autonomous community deems appropriate, the data listed in Annex IV may be submitted by registered paper document, the region being responsible for recording the same in the database.

4. To this end, the Ministry of Agriculture, Food and Environment will establish a model for sending data and the description of the structure of the data file to be used for forwarding.

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

Thirteen. In Article 24, the reference to the Ministry of Agriculture, Food and Environment should be replaced by a reference to the Ministry of Agriculture, Food and Environment and Information Agency and Food Control in the scope of its powers.

Catorce. Article 25 is replaced by the following:

"Article 25. Penalty system.

In case of breach of this Royal Decree shall apply the sanctions regime established by Law 12/2013, of 2 August, on measures to improve the functioning of the food chain, and in all cases not provided for in it shall apply the provisions of state or regional rules apply, without prejudice to other civil administrative order that could compete responsibilities, criminal, or. "

Quince.Se adds a new article 26, with the following contents:

"Article 26. Collaboration between public administrations.

1. The various competent public authorities will adjust the actions developed in the framework of the provisions of this royal decree to the principles of mutual information, cooperation and collaboration.

2. Similarly, the competent public authorities ensure in the application of this Royal Decree, compliance with the current regulations on assurance unit market, thereby adopting policy measures, cooperation and collaboration that are accurate in the exercise of their competence.

3. Should the development of its control activities, the competent authorities of the autonomous communities detect violations of other aspects unrelated to the obligation of contracts, regulated by Law 12/2013, of August 2, they shall inform Agency for Information and Food Control. "

Sixteen. Annex III is replaced by the following:

'ANNEX III


Minimum contract details

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 various factors set forth in the contract, which may include market indicators reflecting changes in market conditions, the volume delivered and the quality or composition of the raw milk supplied or

- Mixed, including a fixed part and a variable.

In all cases prices may further include an adjustment of premiums dependent on factors such as the volume supplied, physical chemistry or health and hygiene quality, or other parameters.

4. Volume in liters to be delivered: the tolerance be included as a percentage, which shall not exceed 10%.

5. Calendar of supplies. It must be indicated, at least the supply frequency or milk collection and can refer for example to the maximum period (days) post milking.

6. Contract period. It shall specify the duration, in the case of contracts between a producer and a receiver must be at least one year, subject to the provisions of paragraph 3 of Article 11. a contract of indefinite duration with clause shall be allowed termination.

7. Conditions for renewal, modification and extension, if necessary.

8. Payment Terms: deadlines and procedures:

Deadline: the deadline for payment and the interest payable in case of delay should be indicated.

Procedure: must indicate the method of payment: transfer, check, and the date on which will take place (for example, "before ...... day of each month").

9. Collection or delivery modalities.

According to where you place the change of ownership of milk:

- In origin: milk collection is done on the premises of the supplier.

- On arrival: Transporting milk is processed by the supplier for deposit in the premises of the receiver.

10. Rules applicable in case of force majeure. cases of force majeure and the rules that apply in this case be indicated.

11. Rights and obligations of the contracting parties.

12. Causes, formalization and effects of extinction. "

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

'ANNEX IV

Minimum contract details communicated by the buyer to the database deliveries statements

IDENTIFICATION OF RECEIVER Witness:

DNI or NIF.

Surname and name or company name.

Address, city, county, zip code, independent community.
PRODUCER'S IDENTIFICATION
:

DNI or NIF.

Surname and name or company name.

Address, city, county, zip code, independent community.
REGISTRATION DATA
:

Filing date first contract offer.

Disclaimer producer the minimum duration of one year: yes / no.

Start date effect.

End date effect.

Species.

Hired Volume (liters).

Tolerance contracted volume (%).

Price type. Fixed, variable, mixed. "

First transitional provision. Adaptation of existing contracts.

The contracts entered into force before the entry into force of this royal decree affecting quantities delivered after the entry into force of this Royal Decree, adapted to the provisions of the same within a maximum period of one month .

Second transitional provision. Database and communications.

As long as not operational database and communications system to it, set out in paragraph 1 of Article 16 of Royal Decree 1363/2012, of 28 September, as amended at the same by paragraph twelve single article of this royal decree shall apply the provisions of paragraphs 1, 2 and 3 of Article 16 of Royal Decree 1363/2012, of September 28, in his earlier writing this royal decree.

Stakeholders on the operation of that database will be communicated by posting a notice on the website of the Ministry of Agriculture, Food and Environment in the section corresponding to dairy cattle.

Single final provision. Entry into force.

The Royal Decree shall enter into force on the day following its publication in the "Official Gazette" day.

Given in Madrid, on 27 February 2015.
FELIPE R.


The Minister of Agriculture, Food and Environment

ISABEL GARCIA TEJERINA