French Competition Law provides a comprehensive review of the French rules relating to competition: restrictive agreements, commercial negotiation, abuses of a dominant position, procedure and merger control.

French Competition Law

The EGalim 3 Law   has, without making any major changes to the regime applicable to wholesalers, enshrined and reorganized the provisions applicable to them, previously scattered across various articles in the Commercial Code.
New Article L. 441-1-2 brings together all the provisions relating to general sales conditions, as well as the definition of “wholesaler”.  
According to part I of the text …

Wholesaler terms and conditions

Transparency in commercial transactions allows potential purchasers to compare offers made by sellers prior to making a choice. For this reason, the law requires all economic operators to produce their price lists and general sale terms to buyers acting in a professional capacity (Art. L. 441-1 Commercial Code, former Art. L. 441-6). Since the coming into force of Ordinance No 2019-359 on 26 April 2019, the duty to communicate the GTC rests with persons engaged in production, distribution or service activities having established such GTC whereas previously, any producer, service provider, wholesaler or importer was required to communicate its GTC to any purchaser of goods or services requesting them for the purposes of a business activity. The beneficiaries of such a duty are manufacturers, traders and providers of services acting in a professional capacity. The notion of a professional buyer is not limited to resellers, but it does not extend to competitors who are not buyers and who ask to be supplied with such information without any professional need . Should, however, the concept of buyer be restricted to current customers? The courts have had differing opinions on this issue. Where initially the case-law predominantly accepted potential commercial relations,  the more recent decisions have required the existence of current commercial relations . De même, un revendeur avec lequel le fournisseur ne veut pas contracter  ne peut obtenir la communication forcée des CGV de ce dernier .

Before Ordinance No 2019-359, the lack of pre-established price lists or terms of sale did not remove the obligation to indicate the discount and rebate terms actually practiced . The duty to communicate was absolute - a producer could be held liable for non-compliance or incomplete performance, and there were no exceptions, even where the prospective purchaser was acting in bad faith. However, the duty did not obligate the seller to establish such terms in the absence of any specific request . New Article L. 441-1 re-appraises the unconditional nature of the obligation to disclose the general terms and conditions of sale since it limits their production to operators having established them. This change is welcome especially since the activities of many companies do not lend themselves to the pre-establishment of general terms and conditions.

Although communication of the GTC at the request of a buyer is only mandatory if the supplier has established any, the ordinance may be interpreted as suggesting that suppliers falling under the obligation to establish a single commercial agreement with their distributors under Article L. 441-3 of the Commercial Code are required to establish GTC which they are obliged to provide to their distributors. In effect, in order to guarantee that commercial negotiations will effectively be based on the supplier's general terms of sale, as the “sole basis” of negotiations, and that they proceed in a timely fashion avoiding delays in the provision of information, the Hamon Law required suppliers to provide their general terms and conditions to distributors “at the latest three months before the cut-off date of 1 March or, for products and services subject to special marketing cycles, two months before the starting point of the sale period”. New Articles L. 441-3 and L. 441-4 are worded in the same way but lay down different conditions according to which agreement is concerned. Article L. 441-3, which governs the general written commercial agreement, provides for communication within a reasonable period of time before 1 March or, for products or services subject to a particular sales cycle, before the starting point of the period in question. Article L. 441-4 relative to the agreement for consumer goods is based on the terms of former Article L. 441-7. However, the Administration has interpreted this spontaneous communication obligation in a way that is favorable to suppliers  and considers that the provision is not intended to make the establishment of GTC mandatory although it is strongly recommended. On the other hand, if they have been established, the rule requires that they be communicated voluntarily by the suppliers required to draw up a written commercial agreement. In effect, the defaulting supplier is exposed to the risk of incurring liability for failing to conclude a written commercial agreement within the time-limit or may be accused of having concluded a written commercial agreement which is non-compliant with Articles L. 441-3 or L. 441-4 of the Commercial Code. In both cases, the defaulting supplier incurs an administrative fine of a maximum of EUR 75,000 for natural persons and EUR 375,000 for legal persons (Art. L. 441-6).

Cass. com., 1 June 1999, LawLex200200000123JBJ, upholding CA Versailles, 3 April 1997, LawLex200200000298JBJ. - V. égal. Paris, 6 oct. 2022, LawLex202200008588JBJ, retenant que la demande de communication des CGV formulée par une entreprise, qui s'inscrit dans le cadre d'un litige et non pour l'exercice de son activité professionnelle, n'a pas lieu d'être satisfaite.

CA Chambéry, 16 June 2002, LawLex200300000596JBJ. 

CA Aix-en-Provence, 31 March 2006, LawLex200600001816JBJ. See also CA Paris, 19 October 2016, LawLex201600001737JBJ.

Limoges, 14 mars 2024, LawLex202400002462JBJ.

Cass. com., 18 January 1994, LawLex200200000118JBJ.

CA Nancy, 23 June 1998, LawLex200200000118JBJ: The law does not oblige an undertaking to establish rates or general conditions of sale (in the fruit and vegetable sector). 

Duty to communicate General Terms and Conditions

Article L. 441-1 of the Commercial Code in its wording as a result of the Ordinance of 24 April 2019, provides that: “The general terms and conditions of sale include, inter alia, the payment terms and the elements used to determine prices such as the scale of unit prices and any price reductions”.

The provision defines precisely the content of the general terms and conditions while retaining the possibility to include other elements such as those terms of sale which were mentioned expressly in former Article L. 441-6. Under the Hamon Law ,  they constitute the “sole basis” of commercial negotiations and highlight the principle that the general terms and conditions of sale take precedence over any special terms and general terms of purchase. New article L. 441-1, III specifies,  that this is always the case once the general terms of sale are established. According to the Court of Cassation, Article L. 441-1 may not be interpreted as requiring a supplier to sell to a buyer who has asked for its General Terms and Conditions of Sale, but only, when entering into negotiations with the latter, to do so on the basis of the latter .

In the interests of protecting the remuneration of farmers, the EGalim 2 Law ,  has reinforced the formal nature of the general terms and conditions when the contract concerns food products and products intended for pet food. In order to guarantee the non-negotiability of the price of agricultural raw materials and processed products, the principle of which is set out in new Article L. 443-8 , new article L. 441-1-1, I of the Commercial Code, allows suppliers  to break down their rates, in their general terms and conditions of sale, in three ways:

- either it presents, for each of the agricultural raw materials and for each of the processed products composed of more than 50% of agricultural raw materials which are part of the composition of the product, their share in the composition of the latter in the form of a percentage by volume and a percentage of the tariff;

- or it presents the aggregate share of agricultural raw materials and processed products composed of more than 50% of agricultural raw materials that enter into the composition of the product, in the form of a percentage by volume and a percentage of the tariff;

-or it provides, subject to reporting a change in its rate for the product concerned compared to the previous year, for the intervention of an independent third party, at its own expense, responsible for certifying at the end of the negotiation that, in accordance with II of Article L. 443-8, the negotiation did not concern the part of this change resulting from that of the price of agricultural raw materials or processed products.

The law provides that a decree may exclude the application of these methods of presentation of the GTC for products whose aggregate share of agricultural raw materials and processed products composed of more than 50% of agricultural raw materials, which make up these products, is less than or equal to a threshold that cannot exceed 25%. Similarly, due to the specificities of their production chain, a decree of 20 October 2021 has excluded from the new rules a whole series of products, including honey, cereals, fruit and vegetables and alcoholic beverages . If there is any doubt about the accuracy of the information contained in the general terms under the first two options, the buyer may, at its own expense, ask the supplier to appoint an independent third party to attest to this accuracy. Finally, section IV of the law requires the supplier to state in its general terms and conditions of sale whether a sales contract concluded under the new provisions of Article L. 631-24 of the Rural and Maritime Fishing Code relating to the agricultural raw materials used in the composition of the food product or the product intended for pet food, has already been concluded.

Any failure to comply with the transparency obligation provided for in section I of Article L. 441-1-1 is punishable by an administrative fine of up to EUR 75,000 for a natural person and EUR 375,000 for a legal entity. The maximum fine is doubled if the breach is repeated within two years of the date on which the first sanction decision became final.

Law No 2014-344 of 17 March 2014 on consumer affairs.

Cass. com., 28 September 2022, LawLex202200007639JBJ.

Law No 2021-1357 of 18 October 2021 for the protection of farmers' income, OJ 19 Oct. 2021.

Commercial Code, Art. L. 443-8, II : “Commercial negotiations do not concern the share, in the supplier's rates, of the price of agricultural raw materials and processed products listed in section I of Article L. 441-1-1”.

Section V of Article L. 441-1-1 excludes wholesalers within the meaning of II of Art. L. 441-4 from the concept of supplier required to comply with the new conditions of form for general terms and condition of sale. 

Decree No 2021-1426 of 26 October 2021 laying down the list of food products, categories of food products or products intended for pet food excluded from the scope of Article L. 441-1-1 of the Commercial Code.

General terms of sale

A supplier may establish different general terms of sale if each is aimed at a different category of potential buyer. Indeed, it is good business sense to vary the terms of sale depending on whether one is dealing with a wholesaler or a small distributor, with distributors operating in different commercial areas or not exercising the same activity . “The diversity of purchaser situations justifies a seller establishing general terms of sale that differ according to the category of buyer”, and that “a wholesaler and a retailer may therefore receive different terms of sale offers”, and that “communication of general terms of sale is reserved for the specific addressees concerned” .

Ultimately, the LME Law of 2008 has established the freedom to negotiate general terms of sale, which can now be differentiated according to category of purchasers of products or services (now Article L. 441-11, II, paragraph 2). In this case, the communication obligation only concerns buyers or persons requesting the terms of sale of the same category . The supplier may refuse to provide them if he is able to justify the objective criteria used for defining the categories of buyers  and can show, according to those criteria, that the person does not belong to the category concerned . The turnover achieved with a category of buyers, the type of  customers, their mode of distribution, the sector of activity and the final destination of the product can justify a differentiation of the general terms and conditions of sale .

The differentiating of general terms still encounters restrictions because recognition under the law on restrictive practices does not entail legitimacy under the law on anticompetitive practices. Thus, to be permitted by the courts, differentiation must not be the result of any discriminatory vertical agreement.

Cass. com., 12 March 1996, LawLex200200000202JBJ; DGCCRF Letter of 27 December 1994.

Dutreil circular, 16 May 2003, JO 25 May 2003, 8970.

Cass. com. 28 September 2022, LawLex202200007978JBJ, ruling that a purchasing agent cannot rely on the General Terms and Conditions of Sale applicable to pharmacies, even if the transfer of ownership of the products it orders on behalf of its customers is made directly into their assets, since it is acting in its own name. Cf. Cass. com. 28 September 2022, LawLex202200007639JBJ, accepting that an undertaking acting as an intermediary in the placing of orders between a supplier and pharmacies may request disclosure of the general terms and conditions of sale granted by the supplier to independent pharmacies, since its principals, like the latter, incur storage charges.

Cass. com., 29 March 2017, LawLex201700000599JBJ.

CA Paris, 4 July 2019, LawLex201900000886JBJ, on referral from Cass. com., 29 March 2017, LawLex201700000599JBJ, cited above.

CA Paris, 4 July 2019, LawLex201900000886JBJ.

Variations in general terms

The 2 August 2005 Dutreil Law established the possibility of setting down special terms of sale within the same category of purchasers: “Furthermore, any producer, service-provider, wholesaler or importer may draft special terms and conditions with a purchaser of goods or services, justified by the specificity of the service rendered, which are not subject to the disclosure obligation”.

In order to promote the freedom to negotiate, the obligation to justify special terms of sale by special services rendered has been removed from former Article L. 441-6. The Ordinance of 24 April 2019 has retained this regime (Article L. 441-1, III, para. 1).

Does this mean that special terms of sale completely departing from the general terms of sale can be freely fixed without limit or justification? Prudence is required in this area; it may be preferable for special terms to be justified insofar as under civil law in order for a contract to be valid there must be a “lawful and certain content” ("contenu licite et certain") and non-justified special derogatory agreements may characterize an abuse of dependence. The Hamon Law of 17 March 2014 specified, in former Article L. 441-7 of the Commercial Code, that “the remuneration of the obligations falling under paragraph 2° and 3° [commercial cooperation and other services] as well as, where applicable, the overall price reduction relating to the obligations covered by paragraph 3 shall not be manifestly disproportionate to the value of those obligations”. New Article L. 441-3 essentially replicates this obligation but in a pared down version by requiring that mention be made of “the remuneration of the obligations and the products or services to which it relates and the total remuneration pertaining to all these obligations”. The rise in the review by the courts of terms and behaviors creating a significant imbalance between the rights and obligations of the parties since the 2008 LME Law should also lead to greater care in respect of the general terms and conditions of sale. In practice, it is all the more necessary to provide consideration given that, in light of the case law the courts may now review the unfair nature of terms relative to the setting of prices on the grounds that “the principle of negotiability is not without limit and the absence of any consideration or justification for the obligations undertaken by the contracting parties, even when those obligations do not fall within the category of commercial cooperation services, may be penalized under Article L. 442-1, I, 2° of the Commercial Code, where that absence is the result of subjecting or attempting to subject [a trading partner] to a significant imbalance in his/her rights and obligations” .The Court of Cassation clearly insists in its most recent case law on the provision of consideration for all price reductions. That interpretation has been validated by the Constitutional Council . The courts have moreover been engaging in more reviews of the consideration provided for price reductions  going beyond merely reviewing commercial cooperation based on a broad interpretation of the provisions of former Article L. 442-6, I, 1° of the Commercial Code (validated in current Article L. 442-1 in its wording resulting from Ordinance No 2019-359), which sanctions the obtaining or the attempt to obtain “from the other party a benefit without consideration or which is manifestly disproportionate in relation to the value of the consideration provided”. Lastly, discriminatory practices by undertakings holding a market share over the exemption threshold of 30% as laid down in Regulation No 330/2010 (which serves as a guideline in internal law) may be caught by the prohibition of restrictive agreements or even constitute abuse of dominance.

Cass. com., 25 January 2017, LawLex201700000176JBJ.

Cons. constit., 30 November 2018, No 2018-749 QPC, LawLex201800001830JBJ.

CA Paris, 13 September 2017, LawLex201800000543JBJ and 28 March 2018, LawLex201800000543JBJ.

Special terms of sale ("conditions particulières de vente")

The EGalim 3 Law   has, without making any major changes to the regime applicable to wholesalers, enshrined and reorganized the provisions applicable to them, previously scattered across various articles in the Commercial Code.

New Article L. 441-1-2 brings together all the provisions relating to general sales conditions, as well as the definition of “wholesaler”.  

According to part I of the text, which incorporates the definition stemming from the Law of 6 August 2015 , “a wholesaler is any natural or legal person who, for professional purposes, buys products from one or more suppliers and resells them, on a principal basis, to other traders, wholesalers or retailers, to processors or to any other professional who obtains supplies for the needs of his business. Central purchasing or referencing bodies for wholesalers are treated in the same way as wholesalers. Excluded from the concept of wholesaler are undertakings or groups of natural or legal persons operating, directly or indirectly, one or more retail outlets, or acting in the distribution sector as central purchasing or referencing agencies for retail undertakings”. The retention of this definition shows that it is sufficiently robust, that it covers all possible hypotheses of classification, in particular through the reference to wholesaler purchasing groups and wholesaler referencing groups, and that it prevents the notion of wholesaler from being hijacked by supermarket distribution groups. This safeguarding is to be welcomed, as wholesaling is present in most sectors, whether food, industrial or non-food, and has a number of specific features which explain why it is subject to a few adjustments and derogations. These specific features stem from the fact that, under both French and European law, wholesalers have always been considered as distinct operators playing an important and specific role in the distribution chain, and from the fact that wholesalers are intermediaries who deal with powerful upstream or downstream operators, and are therefore subject to a situation of dual constraint upstream and downstream, which should not be exacerbated by additional legal burdens.

Article L. 441-1-2, II of the Commercial Code reproduces most of the requirements applicable to the ordinary civil law general terms and conditions set out in Article L. 441-1, both in terms of their content and their compulsory communication, notably by providing for the possibility of concluding categorical and special terms and conditions of sale. Like ordinary civil law general terms and conditions, wholesale general terms and conditions are the sole basis for commercial negotiation. . Lastly, as already provided for in part V of Article L. 441-1-1, wholesalers are exempt from the application of the provisions of Article L. 441-1-1 relating to food and pet food products.

Law No 2023-221 of 30 March 2023 aimed at strengthening the balance in commercial relations between suppliers and distributors, OJ of 31 March 2023.

Law No 2015-990 of 6 August 2015 for growth, activity and equal economic opportunity, OJ of 7 August 2015, 13537 and corrigendum of 8 August 2015.

The buyer can also establish terms of purchase, e.g. for delivery, bar on retention of title, late delivery penalties, etc. If both parties have drawn up separate general terms of sale and purchase, any inconsistency between them is resolved under contract law. Where these clauses are found to be incompatible they are deemed null and void. However, the contract remains valid and operable as long as these clauses only concern a secondary aspect of the agreement. For example, if two clauses conflict on the venue for any litigation, both are deemed null and void and the question is governed by Articles 42 and 46 of the Code on Civil Procedure. Inconsistency between terms of sale and of purchase is well illustrated in the area of retention of title. In order to counter the retention of title clause in the supplier's general terms, the buyer will often include a retention of title exclusion clause in his own general terms. The courts have held that the buyer's exclusion clause prevails in virtue of the fact the seller was aware of it, unless the buyer expressly waives the exclusion ; a signature on a delivery receipt containing such a clause is not sufficient in this regard . The 1996 Galland Law modified the law providing that from now on “notwithstanding any clause to the contrary, the retention of title clause can be enforced against a purchaser or other creditor where the parties have not agreed to modify its contents or set it aside”. However, this provision was amended by Ordinance No 2006-346 of 23 March 2006 which inserted an Article 2368 into the Civil Code relative to clauses concerning the title to property. The new provision merely states that retention of title shall be agreed upon in writing. Finally, if general purchase terms are manifestly different from the sale terms but are accepted by the seller, the latter may be liable for discrimination vis-à-vis other buyers . The obligation to draft a single document determining the conditions of sale resulting from commercial negotiations should have limited the difficulties caused by the traditional conflicts between conditions of sale and conditions of purchase.

Furthermore, since the Hamon Law, the general terms of sale constitute the “sole basis” of commercial negotiations: they must be the starting point of commercial negotiations which cannot stem from the general terms of purchase. Although courts had already ruled that systematically having the distributor's general terms of purchase prevail over the supplier's general terms of sale with no possibility of negotiation amounts to the imposing of a significant imbalance in the rights and obligations of the parties , this solution is now clearly established.

In addition, by virtue of former Article L. 441-7, the single commercial agreement had to include the price list as previously communicated by the supplier with its general terms of sale, or a means of consulting the price list in the version used as the basis for negotiations. This duty had limited situations of conflict between general terms of sale and general terms of purchase. The Ordinance of 24 April 2019 seems to be less restrictive than former legislation. New Article L. 441-1 now makes the establishment of general terms and conditions subject to the principle according to which they constitute the sole basis of the commercial negotiation. In addition, new Article L. 441-3 on the general written commercial agreement under ordinary law does not mention price lists unlike the written commercial agreement for consumer goods under new Article L. 441-4.

Nevertheless, the imposing of general terms of purchase without negotiation will always fall within the subjecting or attempting to subject a partner to imbalanced obligations. The general terms and conditions of sale remain the sole basis of the negotiation. In practice, it is likely that distributors will be willing to start negotiations without excluding the GTC from the outset to avoid the risk of committing an abusive practice but will then try to have their terms of purchase prevail. The practice of suppliers including proviso letters (lettres de réserve) with agreements stipulating that the terms of purchase of the other party are subject to the contrary provisions of their GTC will certainly continue, at least for those with a certain degree of bargaining power.

Cass. com., 10 December 1991; 11 July 1995.

Cass. com., 25 October 1994; 3 December 1996.

See letter of the Head of the DGCCRF to the Presidents of ANIA, CRCA, APCA and FNSEA, of 16 March 1994.

CA Paris, 18 December 2013, LawLex201300001881JBJ.

General terms of sale or general terms of purchase

It is traditionally accepted by the courts that discounts, rebates and other reductions that the producer is willing to grant to  customers, as remuneration for the economies of scale it achieves (e.g. discounts by level of turnover, discounts for rise in turnover etc.), fall within the scope of the obligation to communicate the general terms and conditions of sale. Indeed, discounts and rebates granted, even occasionally, are part of the information customarily communicated to distributors in the interests of transparency .

Article L. 441-1, I of the Commercial Code in its wording stemming from the Ordinance of 24 April 2019 reiterates that the GTC must include “any price reductions”. However, the communication obligation does not apply to off-invoice payments granted under a marketing agreement, on an occasional basis, as remuneration for commercial commitments .

Cass. com, 27 February 1990, LawLex200200000110JBJ.

TGI Reims, 25 October 1993, LawLex200200000162JBJ.

Price reductions.

Article L. 441-1 (former Art. L. 441-6) of the Commercial Code requires the supplier to provide its payment terms with its general terms and conditions of sale. “Payment terms” ("conditions de règlement") refers primarily to payment periods, late payment penalties and the interest rate applied to those penalties.

The parties are extremely restricted in that regard however since, under European law, the time limits for payment are capped and the interest rate for late payment penalties is subject to a minimum level which must be applied.

In effect, in 1995, the Commission adopted a directive on combating late payment in commercial transactions, which it amended and replaced in 2011 . Directive No 2011/7 applies to all payments made as remuneration for commercial transactions (Art. 1), i.e. transactions between undertakings or between undertakings and public authorities which lead to the delivery of goods or the provision of services for remuneration (Art. 2). Payments made outside the contractual or statutory payment periods constitute late payments. The directive aims to combat “supplier-credit” practices which are abusively imposed on suppliers or sub-contractors (under terms which are grossly unfair: Art. 3(5) and Art. 7). Member States must ensure that the creditor is entitled to interest for late payment (Art. 3), and that procedures for redress are fast and effective (Art. 10). According to the Court of Justice, Directive 2011/7 does not preclude national legislation which allows a creditor to waive his right to interest for late payment and compensation for recovery costs in exchange for immediate payment of the principal amount of debts owed, on condition that such a waiver is freely agreed to . Member States must also provide in conformity with the applicable national provisions designated by private international law that the seller retains title to goods until they are fully paid for (Art. 9). A procedure of acceptance or verification, by which the conformity of the goods or services with the contract is to be ascertained, may be provided for. In that case, the payment period must not exceed 30 calendar days from the date of receipt of the goods or services (Art. 3(4)).

Article L. 441-10, II (former Art. L. 441-6) of the Commercial Code provides that the terms of payment which must be included in the GTC under Article L. 441-1, I, of the Commercial Code, specify the conditions of application and the rate of late payment penalties due the day after the payment date stated on the invoice. The European Central Bank rate, plus 10 percentage points, is applied to late payment penalties . In addition, a fixed sum for compensation of recovery costs, reference to which must be stipulated on the invoice, is automatically due in the event of late payment (EUR 40 under Art. D. 441-5 of the Commercial Code). Finally, to avoid circumvention of the maximum payment periods by recourse to the acceptance or verification procedures to ascertain conformity of the goods or services with the contract, the text provides that the maximum duration of that procedure must not exceed 30 calendar days from the date of receipt of the goods or services. The Hamon Law  is even more stringent, stipulating that the verification or acceptance procedure must not have the effect of increasing the duration or delaying the point of departure of the maximum payment period, unless expressly stipulated in the contract, provided that such stipulation does not constitute an unfair term or abusive practice.

Directive No 2011/7 of 16 February 2011, OJEU L 48 of 23 February 2011, 1.

ECJ, Case C-555/14 IOS Finance EFC SA, Judgment of 16 February 2017, LawLex201700000339JBJ.

The text specifies that the rate applicable during the first half of the year concerned is the rate in force on 1 January of the year in question and for the second half of the year concerned, that in force on 1 July.

Law 2014-344 of 17 March 2014 on consumer affairs.

Payment terms

Article L. 441-1 stipulates that the communication of price lists and terms must be carried out by any durable medium.

By choosing an up-to-date formal regime, pared down where necessary, the legislature has acknowledged that professionals have to be able to act quickly and enjoy flexibility in their contractual relationships. Nonetheless, communication must be complete and up to date and be carried out within a reasonable period of time. Communication is considered incomplete where it does not include “catalogues or technical documentation on the products or precise information on payment terms” . Although communication can no longer be oral, it can be digital - as long as the modes of communication used make it possible to keep a durable record of the GTC. In principle, it may be preferable to use a pre-established written document which can be useful for the supplier needing to demonstrate an absence of abusive practices. Also, the new Civil Code Article 1316 qualifies all means made available by new information technologies, along with written documents, as admissible evidence. 

In addition to the communication of the general terms of sale by express request from the purchaser, the law provides for a form of voluntary communication of the general terms and conditions of sale: they must be provided within a reasonable period of time not later than 1 March or, for products subject to a particular production cycle, before the marketing period in the context of a written commercial agreement subject to Article L. 441-3 or, where the agreement relates to consumer goods within the meaning of Article L. 441-4, within three months before 1 March or, for products subject to a specific marketing cycle, two months before the starting point of the selling period.

Cass. com., 13 February 1990, LawLex200200000116JBJ, upholding CA Grenoble, 4 February 1988, LawLex200200000397JBJ; CA Grenoble, 7 January 1988, LawLex200200000386JBJ.

Communication on request by any durable medium.

Providing incomplete general terms of sale or refusing to disclose them at all can be subject to an injunction from the DGCCRF on the basis of Article L. 470-1 of the Commercial Code.

Furthermore, failure to indicate in the terms of payment matters relating to the conditions of application and the interest rate of the late payment penalty, and the setting of non-conforming terms and conditions is sanctioned by an administrative fine of EUR 75,000 for natural persons and EUR 375,000 for legal entities. 

Article L. 441-1, IV establishes an administrative fine not exceeding EUR 15 000 for natural persons and EUR 75 000 for legal entities, for any failure to comply with the obligation to produce the general terms and conditions of sale, without including any other considerations. In the event of proceedings brought by the government, administrative sanctions have now fully replaced judicial sanctions in this area.

In addition, if the commercial relationship contains the obligation to draft a written commercial agreement, the law requires the communication of the general terms of sale in the periods laid down in Articles L. 441-3 and L. 441-4 regardless of which type of written commercial agreement is concerned. The defaulting supplier incurs an administrative fine of a maximum of EUR 75,000 for natural persons and EUR 375,000 for legal persons.

Administrative sanctions

Under former Article L. 442-6, I, 9° of the Commercial Code, refusal to communicate price lists or terms of sale, or the incomplete communication thereof, incurred civil liability. What will the situation be now since the repeal of Article L. 442-6, I, 9° by Ordinance of 24 April 2019 in favor of an administrative fine? In our view, the reform does not mean that a victim of a refusal to communicate the pre-established GTC or the refusal to communicate them under a written commercial agreement will only have recourse to the DGCCRF for redress. It will still be possible, as it was previously, to claim the breach of a public policy provision giving rise to prejudice and initiate interim proceedings to stop an unlawful disturbance and/or imminent harm. However, the alleged disturbance must be unlawful: this is not the case when a supplier refuses to provide its General Terms and Conditions of Sale to a reseller with whom it does not wish to contract, in view of the damage the latter has caused to its image in the past .

CA Limoges, 14 March 2024, LawLex202400002462JBJ.

French Competition Law

129. Wholesaler terms and conditions

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise

Les notions juridiques connexes

129. Wholesaler terms and conditions

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise