Enforcement relating to unfair trading practices
A person who contravenes or fails to comply with a provision of Agri-Food Unfair Trading Regulations commits an offence and is liable:
on summary conviction to a class A fine, or on summary conviction, to a class A fine or to imprisonment for a term not exceeding 6 months, or to both, or on conviction on indictment, to a fine not exceeding the greater of €10,000,000 or 10 per cent of the aggregate turnover of the person in the financial year in which the offence was committed, or to a term of imprisonment not exceeding 3 years, or to both.
There is provision for the submission of complaints to the regulator, communications between the complainant and the regulator, as well as grounds for why the regulator may decide not to investigate a complaint.
A complaint may be submitted by—
- a supplier,
- a supply trade organisation, and
- another not-for-profit organisation on behalf of suppliers whom it represents
A supplier may make a complaint if the supplier is established in the State, or the buyer is established in the State.
There is provision for confidentiality of the complainant and their information. The Minister, with the consent of the Minister for Public Expenditure and Reform, may make regulations imposing fees to be paid by complainants while having regard to the purpose of meeting expenses properly incurred by the regulator in the performance of its functions. The Regulations may provide for rates of fees payable, the keeping of records and making of returns and the collection and recovery of fees,
The Act provides for the conduct of investigations of an alleged or suspected unfair trading practice in response to a complaint or carried out on the Regulator’s own initiative. The regulator may promote the use of alternative dispute resolution mechanisms for settling unfair trading disputes.
The Act provides for the appointment of authorised officers. It provides warrants of appointment which should be produced on request by authorised officers. An authorised officer may at any reasonable time enter premises where the officer has reasonable grounds for believing that there are (a) records relating to agricultural and food products, or anything used in connection with agricultural and food products.
An authorised officer may enter premises if the officer has reasonable grounds for believing that.
- an offence under this Act has been, is being, or is about to be committed on the premises, or
- evidence of an offence under this Act is likely to be found on the premises (or in anything on the premises).
There are powers to carry out such an investigation. An authorised officer may examine, inspect and require the production of records or any other thing related to an agricultural and food product, the name and address of the owner or person in control of such records or things, and related matters regarding copies and ownership of records and ownership and use of premises.
There are powers for persons to accompany an authorised officer and matters relating to equipment or materials required, seizure, and the use of reasonable force to enter premises.
The regulator may issue a compliance notice for contravention of provisions of this Act, the serving of such a notice, the damage, defacing or removal of such a notice, the content of a notice including dates, offence of non-compliance with a notice, withdrawal of a compliance notice and appeal against a compliance notice to a judge of the Circuit Court.
There are offences of non-cooperation with the regulator in the course of its functions including obstruction, interference, failure to comply with a requirement or direction of an authorised officer and failure to assist an authorised officer. It is an offence to make a statement known to be false, misleading or made recklessly.
Enforcement and supplementary regulations
There are regulations for enforcement and supplementary matters including.
- enforcement functions,
- complaints procedures,
- enforcement powers,
- publications of decisions, offences, penalties and fines,
- alternative dispute resolution mechanisms,
- any additional agricultural and food products to be covered by the Act,
- collection of price and market information,
- giving effect to European Union legislation relating to unfair trading practices in the Agri food sector and reporting of market prices in the sector.
A person who contravenes or fails to comply with a provision of regulations made under this Section commits an offence and is liable:
- on summary conviction to a class A fine, or
- on summary conviction, to a class A fine or to imprisonment for a term not exceeding 6 months, or to both, or
- on conviction on indictment, to a fine not exceeding the greater of
- €10,000,000 or 10 per cent of the aggregate turnover of the person in the financial year in which the offence was committed or
- to a term of imprisonment not exceeding 3 years, or to
Summary offence proceedings may be instituted at any time within three years from the date on which the offence was alleged to have been committed. Offences concerning employees of a body corporate where an offence committed by a body corporate is proved to have been committed.
For offences other than offences of unfair trading practices and other than offences created under regulations made under the Act a person who commits an offence is liable:
- on summary conviction, to a class A fine or imprisonment for a term not exceeding 6 months, or to both, or
- on conviction on indictment, to a fine not exceeding €500,000 or imprisonment for a term not exceeding 3 years, or to both.
In addition to any fine or penalty the court may impose, the court shall order the person to pay to the regulator costs and expenses incurred by the regulator in relation to the investigation, detection and prosecution of the offence.
The regulator may institute summary proceedings in the District Court.
The Act provides for the serving of a fixed payment notice on a person whom an authorised person has reasonable grounds for believing is committing or has committed an offence. The regulator is not obligated to issue a fixed payment notice. A designated officer may serve a fixed payment notice of €250 to the person concerned and to be paid within a 28 day period.
If the payment specified in the notice is made during the period specified in the notice no prosecution in respect of the alleged offence will be initiated. The Minister may by order specify an amount in place of the €250 not exceeding €1,000 including in respect of different offences.