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

For various reasons (differentiation of the product offering, inter-brand competition, requirement for traceability of certain products for quality reasons), the marketing of a product may require the provision of services that the distributor is best placed to provide and for which it can be remunerated by its suppliers. This practice was described as “commercial cooperation” in the Delors circul …

Commercial cooperation agreements and services separate from the written commercial agreement

For various reasons (differentiation of the product offering, inter-brand competition, requirement for traceability of certain products for quality reasons), the marketing of a product may require the provision of services that the distributor is best placed to provide and for which it can be remunerated by its suppliers. This practice was described as “commercial cooperation” in the Delors circular of 22 May 1984 , replaced by the Dutreil Circular of 16 May 2003 . Commercial cooperation services are governed by the principle of contractual freedom. They differ from general terms and conditions of sale in that they are not subject to the disclosure obligation of Article L. 441-6; they do not have to be published or provided to any professional purchaser who requests them. They are covered by business secrecy.

Commercial cooperation was first defined by former Article L. 441-7, I, created by Article 42 of the Dutreil Law, as “an agreement by which a distributor or service provider undertakes to a supplier, on the occasion of the resale of its products or services to consumers, to provide services to promote their marketing that do not fall under the purchase and sale obligations”. Until now, there has been no legal definition of commercial cooperation. Rather curiously, this definition limited the scope of commercial cooperation to services provided “on the occasion of the resale... to consumers”, so that wholesalers were in principle excluded even though they were considered to provide such services according to administrative theory and case law prior to the Dutreil Law . Wholesalers were therefore forced to abandon commercial cooperation services and turn to the new category of “separate services” (services distincts).

Prior to the Chatel Law of 3 January 2008, operators had recourse, outside the general terms and conditions of sale, varied where applicable, to special terms and conditions of sale agreed with certain buyers according to the consideration offered under the obligations arising from the buying and selling transaction, and to service contracts going beyond buying and selling transactions: commercial cooperation services and separate services. In some cases, on the initiative of mass retail undertakings, all or some of these documents were merged into a single agreement intended to bring together the parties' various agreements for the year. This practice probably inspired the legislator during the reform of commercial relations by the Chatel Law.

The Chatel Law of 3 January 2008 in effect, instituted a single written commercialization agreement with a very broad scope since it is binding on suppliers (producers, service providers, wholesalers or importers) in their relations with any distributor (or service provider) and concerns not only the conditions of sale, but also services not falling under the purchase and sale obligations or other obligations intended to promote the commercial relationship .

The LME Law of 4 August 2008 amended the scope of Article L. 441-7 of the Commercial Code by requiring that a single document set out the conditions of  sales, the conditions under which marketing services will be provided, as well as other obligations intended to promote the commercial relationship. It also broadened the scope of commercial cooperation by adding that it may involve services rendered on the occasion of resale to business professionals. Then, in its wording resulting from the Hamon Law , which significantly enriched the content of the written agreement, the former Article L. 441-7 made it compulsory to provide for the following in a single document:

1°) the terms of sale of products or services as they result from the commercial negotiation, in accordance with Article L. 441-6, including price reductions;

2°) the conditions under which the distributor or service provider renders to the supplier, on the occasion of the resale of its products or services to consumers or with a view to their resale to professionals, any service likely to promote their commercialization that does not fall under the purchase and sale obligations, specifying the object, the planned date, the terms of execution, the remuneration of the obligations as well as the products or services to which they relate;

3°) other obligations intended to promote the commercial relationship between the supplier and the distributor or service provider, specifying the remuneration or overall price reduction relating to these obligations.

The provision specified that the purpose of the written commercial agreement was to set out the obligations of the parties in order to determine the price at the end of the commercial negotiations. To ensure that these negotiations were conducted based on the supplier's general terms and conditions of sale, former Article L. 441-7 of the Commercial Code, as amended by the Hamon Law, stipulated that the agreement “indicates the price scale as previously provided by the supplier, along with the supplier's general terms and conditions of sale, or the terms and conditions for consulting this scale in the version used as the basis for negotiation”. 

The Sapin II Law of 9 December 2016 , authorized the conclusion of multi-year agreements with a duration of two or three years. In such a case, the parties had to provide for the modalities of revision of the agreed price.

The Ordinance of 24 April 2019 retained only two systems for the agreement: a simplified general system applicable to any relationship between suppliers and distributors, including wholesalers (Art. L. 441-3) and a more stringent system specific to fast-moving consumer goods, not applicable to wholesalers (Art. L. 441-4). Specific provisions have also been devoted to subcontracting, as was already the case previously, and to food products sold under distributor brands (Art. L. 441-7). According to the report to the French President on Ordinance No 2019-359, the amendments made aimed at improving the consistency and clarity of the provisions applicable to written agreements, which have been the subject of multiple reforms over the past fifteen years.

The ASAP Law  of 7 December 2020 introduced new formal requirements for the remuneration of services rendered by international hubs, in order to combat circumvention of French law through the relocation of entities invoicing services of questionable utility.

The Sapin II Law of 9 December 20167, authorized the conclusion of multi-year agreements with a duration of two or three years. In such a case, the parties had to provide for the modalities of revision of the agreed price.

The EGalim 2 Law  introduced, in Article L. 443-8 of the Commercial Code, a new written agreement specific to food products and products intended for the use as pet food for which the general conditions of sale are subject to section I of Article L. 441-1-1.

The EGalim 3 Law  introduced a new written agreement for logistics services  and, without making any changes to its regime, re-established a specific text for the wholesalers agreement .

Finally, the Le Maire Law of 17 November 2023 , introducing urgent measures to combat inflation, brought forward the annual negotiation calendar in order to encourage a more rapid impact on in-store prices of the decreases in the cost of certain raw materials.

Law No 2023-1041 of 17 November 2023 on emergency measures to combat inflation in relation to consumer products, OJ 18 November 2023.

The situation can, however, become more complex when wholesalers provide sales promotion services to suppliers when reselling to consumers.

The Q&A published by the Administration concerning the formalities of the single commercial agreement and invoicing issues specifies that the legislation, which applies to the supplier, distributor or service provider, excludes products or services intended to be processed by them. The legislation concerns the provision of services in the context of commercial cooperation or other obligations directly or indirectly rendered by the distributor.

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

Law No 2016-1691 of 9 December 2016 on transparency, the fight against corruption and the modernization of the economy.

Law No 2020-1525 of 7 December 2020 on the streamlining and simplification of public action.

Law No 2021-1357 of 18 October 2021 on the protection of farmers' incomes, OJ 19 October 2021.

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

Commercial Code, Article L. 441-3, II bis.

French Competition Law

138. Commercial cooperation agreements and services separate from the written commercial agreement

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Les notions juridiques connexes

138. Commercial cooperation agreements and services separate from the written commercial agreement

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