Digitalization and unfair commercial practices in the agrifood chain
by Ferdinando Albisinni
On the 15th of may the Italian Government introduced a decree law, n. 63/2024, headed “Disposizioni urgenti per le imprese agricole, della pesca e dell’acquacoltura, nonché per le imprese di interesse strategico nazionale” (“Urgent measures for agricultural, fishing, aquaculture enterprises, as well as for enterprises of national strategic interest”). Among other things, this decree introduced, in its art. 4, some new measures that were incorporated into the original text of the legislative decree n. 198/2021, for the implementation of the EU directive on the matter of unfair commercial practices.
On the basis of the newly introduced measures, it is possible to put the category of unfair commercial practices into relation with the difficulties arising from the increasing digitalization of agricultural activities.
The issues concerning the acquisition, storage and use of digital datas in the context of agricultural and food production activities are not regulated in the European legal framework; in the Italian law system, on the other hand, there are wide possibilities to apply, also through interpretation, the existing measures; at the same time it would be useful to introduce new regulations on the subject of digital datas.
In the last few years, digitalization took on an increasing importance in relation to agricultural activities, with the adoption, for example, of digital techniques to control irrigation, seeding, the application of plant protection products or of fertilizers, the vegetation development and the presence of plant diseases. The same could be said of each step of food production, due to the use of digital instruments to control the respect of quality and sanitary standards along the supply chain.
This gave rise to well founded concerns for: - the control of the acquisition of data during the performance of agricultural activities (also through the usage of drones or of digital sensors); - the identification of the data Controller; - the storage and the possible transmission of datas that have been acquired; - the use and the aggregation of datas; - the risk of negative externalities.
For these reasons, there is the need to regulate the ownership and the usage of digital datas in agriculture and in food production, considering also the wide variety of data collection in this context. The main issues that come into prominence are those of data interoperability, of the ownership of datas in order to use them, and of the possible transfer of one agrifood producer from one supplier to another.
So far legal enactments, both EU and national, never paid a specific attention to the effects of digitalization on the activity of agrifood enterprises; the 2019 EU directive on unfair commercial practices, in the same way, does not deal with digital datas. This directive, n. 633/2019 on unfair commercial practices in the agrifood chain, aiming to define the “unfair commercial practices that are banned from buyer-seller relations along the agrifood chain” and to establish “mininum standards concerning the application of such prohibitions” indeed introduced relevant novelties; still, it only concerns the sale of agrifood products, at the end of the production process, never taking into consideration the protection of immaterial goods and services that, within the same production process, are bynow a usual part of activity and even of the organisational structure of agrifood enterprises.
The choice of the EU legislator to refer his intervention on unfair commercial practices along the agrifood chain only to sale of products is hardly surprising, deriving, in some measure, from the definition of agricutural activity which has been confirmed by the 2021 EU regulations reforming the Common Agricultural Policy (CAP), according to which agricultural activity is defined only in relation to “the production of agricultural products”, and to the performance of environmental services (cf. art. 4.2 EU reg. 2021/2115).
The Italian legislator, on the other hand, more than twenty years ago, chose to introduce a more multifaceted model, through the legislative decree n. 228 of year 2002, headed “Orientamento e modernizzazione del settore agricolo” (“Orientation and modernization of the agricultural sector”), which followed the solicitations toward the legal acknowledgement of an agricultural services enterprise. Accordingly, the current text of art. 2135 of the Italian Civil Code define the “agricultural activity” not as “the production of agricultural products”, but as the complex of “the activities aiming to take care of and to develop a biological cycle, or a necessary phase of such cycle, in relation to vegetables or animals”.
The aquisition, the collection, the storage and the usage of digital datas in agriculture are indeed included in “the activities aiming to take care of and to develop a biological cycle or a necessary phase of such cycle, in relation to vegetables or animals”, being thus a proper part of the activities of an agricultural enterprise, that as such are acknowledged and thus protected by the Italian legal order.
As the digital datas collected during the agricultural activities are considered to be assets on which one could acquire rights according to art. 810 of the Italian Civil Code, and since these assets are obtained by the means of equipment or other resources normally used in the agricultural activity, these data are goods whose ownership is naturally attributed to the enterprise which produced them, even when such production is carried out using resources that are provided by third parties (as after all, this happens in every agricultural activity, in which for exemple seeds and fertilizers provided by third parties are often used).
The same needs emerge in relation to the food producers who operate along the chain, even if for them there’s no general legal definition as that provided by art. 2135 of the Italian Civil Code.
Anyhow, it needs to be said that art. 9 of the EU directive 2019/633, headed “Norme nazionali” (“national norms”) allow stricter national measures, as well as the regulation of unfair commercial practices that are not taken into consideration in the EU directive. At the same time, it is possible to interpret the norms on unfair commercial practices in a way that extends their application also to contracts and other legal relations concerning the digitalization of the agrifood chain. This is made possible, in particular, by some norms of the legislative decree n. 198/2021: - art. 4, co. 1, lett. h), protecting “commercial secrets and any other relevant commercial information of the supplier” - art. 5 co. 1 lett. h) that bans, in general, “the adoption of any other unfair commercial conduct” .
Such measures could allow right away, by means of interpretation, to sanction unfair commercial practices followed against agrifood enterprises in relation to the sale, the use, the storage and the transfer of the digital datas of such enterprises.
Nevertheless, an intervention realized by means of mere interpretation could give rise to controversies and conflicts, damaging the enterprises, which need to operate in a juridically certain context. Another possibility, in the current situation, would be to expand the art. 4 of the already mentioned decree law n. 63/2024, headed “Interventi per il rafforzamento del contrasto alle pratiche sleali” (“Measures to reinforce the countering of unfair practices”), which at the moment of its conversion into law could be modified so as to include an explicit regulation of digital datas.
It would timely, thus, that the EU and the national legislators intervene on this topic, explicitly banning some commercial practices concerning the use of digital datas in agriculture and in food production, confirming, also under this respect, the special nature of the activities operated in the context of the biological cycle, in this many facets.