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 Code states that an invoice shall mention “any price reduction obtained at the date of sale or service delivery and directly connected with this sale or service delivery”. 
1) Unconditional price reductions: a price reduction is considered unconditional if the customer holds a definite indisputable claim, the amount of which is already expressed in precise figures, and which may be immediate …

Unconditional price reductions directly linked to the operation

Article L. 441-9 provides that “all purchase of products or all provisions of services for a professional activity must be covered by an invoice”. As competition law rules apply to “all production, distribution and services activities, included those which carried out by public persons” (Article L. 410-1), the obligation to invoice applies to all operations concerning the sale or purchase of products and all services performed by a private or public person  except where other specific provisions are applicable. 

The provisions of former Article L. 441-3 were criminally sanctioned prior to the entry into force of the Ordinance of 24 April 2019, so that invoicing was required for all activities carried out on French territory, as French criminal law applies to offenses committed in the territory of the Republic under the provisions of the Criminal Code (Article 113-2). The Court of Cassation had held that the obligation applied to products bought in France even if they were to be distributed and sold abroad . Similarly, the French importer had to make sure that his supplier abroad provided an invoice in compliance with the provisions of former Article L. 441-3 of the Commercial Code . Under new Article L. 441-9, non-compliance with the rules on invoicing no longer constitutes a criminal offense, which is now subject to an administrative fine. However, as administrative sanctions are subject to the principles applicable in criminal law, the geographic scope of Article L. 441-9 should remain the same as former Article L. 441-3.

The obligation to issue an invoice only applies to those persons acting in a professional capacity and thus only to dealings between professionals, whether the companies involved belong to the same group or not . Excluded from this obligation are intermediaries who act on behalf of a principal. This, however, is not the case for commercial agents  or forwarding agents  who, in their capacity as service providers are subject to the obligation to issue invoices. A central purchasing organization is also bound by the obligation when, buying in its own name and on behalf of its members, it is the sole seller of the merchandise to those members . Private individuals are not required to invoice for services where the sales to professionals acting in their professional capacity “are not significant as regards the quantity or number of times the service is offered” . Sales to consumers do not come within the scope of Article L. 441-9.

The obligation to invoice concerns only sales and purchases of products and services. Thus, an assignment of lease rights does not come within the scope of its application . Consignment sale contracts also fall outside the scope of Article L. 441-9 . Line 2 of the provision specifies that, “the seller shall issue the invoice immediately on realization of the sale or provision of the service”. For consignment sales, property is not transferred from the supplier to the depositary, as the latter merely receives the goods and is mandated to sell them. As the sale is transacted on behalf of the supplier by the depositary, the supplier is not required to provide an invoice for the sale.

See Cass. crim., 10 October 1994, LawLex200200000115JBJ. 

Cass. com., 16 June 1998, LawLex200200000207JBJ. 

Cass. crim., 18 June 1998, LawLex200200000113JBJ; See also CA Montpellier 8 April 1999, LawLex200200000177JBJ, on the obligation of a French importer to require a correct invoice.

Cass. crim., 24 March 1999, LawLex200200000151JBJ.

Cass. crim., 10 November 1999, LawLex200200000117JBJ.

Cass. crim., 19 February 2003, LawLex200300000964JBJ. 

CA Paris, 21 May 2001, LawLex200200000050JBJ. 

DGCCRF service note No 5322 of 3 February 1988, LawLex200200000014JBA.

Cass. com., 9 May 2001, LawLex200200000413JBJ.

Cass. crim., 3 June 1991, LawLex200200000085JBJ.

Duty to invoice

Under Article L. 441-9 of the Commercial Code, an invoice must be provided as soon as the delivery or the provision of services is completed. Former Article L. 441-3 required the invoice to be issued once the sale was concluded or the service offered but the Ordinance of 24 April 2019 aligned the provisions of the Commercial Code relating to the issuing of invoices with the tax rules (Art. 289, I, 3 of the General Tax Code). However, prior to the reform initiated by the EGalim Law, it was common commercial practice to require an invoice once the goods were delivered or once the service was completed. There are, however, three exceptions to this principle . 

First, when an element essential to the invoice cannot be known at the time of billing, for example, the price or weight, the requirement to issue an invoice can be deferred. However, a substitute document such as a receipt of delivery should be prepared in duplicate, with the same information that would normally be found on an invoice, with the exception of that information not yet known. Thus an amended invoice can be issued where the prices invoiced correspond to provisional volumes of orders that have not been reached during the current financial year . The law also confirmed the validity of the practice of deferred invoicing for certain intra-Union supplies and summary invoices to align the commercial rules with the tax regulations; the issuance of a deferred invoice is therefore authorized for the delivery of certain goods dispatched or transported from France to the territory of another Member State or, in the case of a service provider established in France, when the purchaser is located in another Member State. The deferred invoice can be established periodically for several deliveries of goods or services carried out separately for the same purchaser or client for which the tax is chargeable in the same calendar month; the invoice is established at the latest at the end of the same month. 

Second, notes summarizing the contents of a number of invoices are allowed so as not to impose excessive invoicing costs on undertakings making frequent deliveries of small quantities, for example, a baker or milkman. 

Third, an invoice statement summarizing the contents of invoices already sent in conformity with the requirements of Article L. 441-9 may be used to facilitate payment.

Article L. 441-9 imposes reciprocal obligations - the vendor must issue an invoice meeting all legal requirements and the buyer must ask for an invoice meeting these same requirements . The invoice should be prepared in duplicate and retained by both the buyer and the seller. The Code requires that invoices be “drafted” which would seem to imply that they must be in writing. However, increased use of computers has given rise to a new method of issuing invoices via the internet. This type of invoice that only exists electronically may be an acceptable form of invoice under certain conditions. The authorities must give prior approval for this type of invoicing. The information contained in the invoice should be identical at the time of sending and receipt, and must appear in the same chronological order in which it was sent. Finally, a list summarizing the messages on paper should be available so as to allow monitoring. The drafting of new Article L. 441-9, paragraph 3, resulting from the Ordinance of 24 April 2019 has been updated. It now states that “the invoice in paper form shall be produced in duplicate”.

See DGCCRF service note No 6032 of 28 March 1994 and information note No 2014-185 of 22 October 2014.

CA Nimes, 28 October 2010, LawLex201000001366JBJ.

Cass. crim., 20 June 1994 ; 18 June 1998. 

Methods of invoicing

The invoice must in principle be in French  and must comply with certain specific requirements as regards its content. These include “the names of the parties and their address, their billing address  - if different, the date of the sale or service provision, the quantity, a precise description and the unit price excluding VAT of the products sold and services provided and also any price reduction applying on the date of the sale or provision of services and directly linked to this sale or service provision, excluding discounts not specified on the invoice” (Article L. 441-9, I, paragraph 4). It should also state the date by which payment must be made and the discount terms applicable in the event of payment prior to the deadline set by the general terms of sale, as well as the penalty rate applicable after the payment date has passed and “the amount of the fixed sum compensation for recovery costs due to the creditor in the event of late payment”  (Article L. 441-9, I, paragraph 5). The rate of the legally applicable VAT must also be included and, since the Ordinance of 24 April 2019, the purchase order number if one has been attributed by the buyer.

The Court of Cassation has indicated that the “precise description of the product”, includes not just the nature of the product but also its characteristics, so as to ensure price transparency . Merely communicating the general conditions of sale to the purchaser does not fulfill the obligation to precisely state the service supplied, especially the hourly rate, the time spent, the supplies provided and their price . In effect, invoices must fully meet all requirements regarding content and cannot be supplemented by external information . 

Law No 94-665 of 4 August 1994. The government has been more flexible, considering that "the obligation to use French does not apply to documents (invoices for example) exchanged by professionals, persons under French and foreign private law who are not consumers or end users of goods, products and services  (DGCCRF, Practical guide on the use of the French language, December 2018). From the point of view of taxation, Article 289, IV, paragraph 2 of the General Tax Code provides that "when [an invoice] is drafted in a foreign language, the tax office may, for review purposes, require a French translation".

The CEPC (Commission for the review of commercial practices) accepts, for the sake of simplification and consistency with fiscal doctrine, that the address of the buyer mentioned on the invoice may be that of the secondary establishment with which the seller has a relationship and which ensures the payment of the invoice, and not the address of the registered office, see Opinion No 20-3 of 18 June 2020, LawLex202000000004JBA.

Law No 2012-387 transposes Directive No 2011/7 of 16 February 2011 on combating late payment in commercial transactions which lays down the principle of compensation in the form of a fixed sum. Article D. 441-5 of the Commercial Code has fixed the amount at EUR 40.

Cass. crim., 10 March 1999, LawLex200200000122JBJ; See also CA Paris, 10 May 1999, LawLex200300002982JBJ; 23 March 1999, LawLex200200000164JBJ; CA Poitiers, 25 February 1994, LawLex200200000001JBJ.

CA Paris, 9 December 1999, LawLex200300000499JBJ.

Cass. 2e civ., 6 July 2017, LawLex201700001689JBJ.

Mandatory content

The unit price exclusive of VAT is the price per product sold or service rendered before any price reductions are applied, and not the price finally paid . Regarding currency, since 1st January 2002, a price stated in EUR has been mandatory.

Cass. crim., 12 June 1997, LawLex200200000114JBJ.

Unit price

The Code states that an invoice shall mention “any price reduction obtained at the date of sale or service delivery and directly connected with this sale or service delivery”. 

1) Unconditional price reductions: a price reduction is considered unconditional if the customer holds a definite indisputable claim, the amount of which is already expressed in precise figures, and which may be immediately and unconditionally claimed. The criminal chamber of the Court of Cassation has asserted that conditional rebates, like end-of-season rebates that only apply if the distributor has reached certain turnover or promotional thresholds, cannot be considered as applicable at the time of sale insofar as the condition has not been met . Thus price reductions that depend on the fulfillment of a condition precedent should not be included on the invoice. However, the commercial chamber of the Court of Cassation has a position which differs from that of the criminal chamber. According to the commercial chamber, Article L. 441-9 of the Commercial Code provides that the invoice should mention any price reduction which is applicable on the date of the sale, but does not prohibit from also including a conditional rebate .

2) Price reductions directly linked to the sale or service: the requirement that the reduction has a direct link to the invoiced sale or service has been added to invoicing rules. This addition is meant to fight more effectively against resale below cost, as the threshold thereof may be determined using the invoice. Requiring that the reduction be directly linked prevents parties from noting commercial cooperation on the invoice in order to reduce the below-cost cutoff point. Such agreements must be invoiced separately by the distributor . This rule also prevents the “nest egg” practice, whereby distributors capitalize the rebates by means of an artificially high price, using those amounts subsequently to compensate for very low resale prices during promotional operations . 

Cass. crim., 12 June 1997, LawLex200200000104JBJ. 

Cass. com., 6 September 2011, LawLex201100001455JBJ, issued regarding target premiums, which states that the conditional nature is assessed having regard to the parties' agreement and the fact that the invoice contains a rebate the condition of which is not applicable yet does not remove its conditional character and does not preclude from giving it back if the condition is not met.

CA Angers, 26 February 1998, LawLex200200000255JBJ.

See CA Amiens, 25 May 1999, LawLex200200000402JBJ.

Early payment discounts which are part of a prior agreement between the buyer and seller, and therefore are considered as automatically applicable on the date of sale, qualify as price reductions that must be mentioned on the invoice.

Early payment discounts amounting to a price reduction  

The invoice must mention the final date for payment. It must outline the discount conditions for payment in advance of the date mentioned in the terms of sale if the payment date agreed upon is different from the one set by the general terms of sale (Article L. 441-9). If payment is made immediately, the invoice must indicate that payment was made in this way . Immediate payment in full does not relieve the parties of the obligation of establishing an invoice stating payment terms. Payment is deemed to have occurred on the date that the purchaser makes the funds available.

CA Paris, 25 February 1998, LawLex200200000154JBJ.

Payment terms

The original invoice or an authentic copy, for example, on microfilm, must be kept for a period of three years from the date of sale or service. However, the tax authorities can require accounting documents going back six years , and businesses are at any rate under a general duty to keep all billing and accounting documentation for a period of ten years (Article L. 123-22(2)).

Article L. 102 B of the Livre des procédures fiscales (administrative document on fiscal procedure).

French Competition Law

157. Unconditional price reductions directly linked to the operation

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157. Unconditional price reductions directly linked to the operation

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Les décisions de justice citées dans ce paragraphe :

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