The Constitutional Council will have to rule on the logistical penalties inflicted by E.Leclerc on suppliers

Europe 1 with AFP / Photo credit: Andrea Savorani Neri / NurPhoto / NurPhoto via AFP 12:14 p.m., February 10, 2024

The Constitutional Council was seized of a priority question of constitutionality (QPC) concerning the logistical penalties inflicted by E.Leclerc on agro-industrial suppliers, and which earned him an injunction from the authorities in 2022, according to press releases on Friday evening. At the end of 2022, E.Leclerc was targeted by a sub-strict injunction emanating from the regional and interdepartmental directorate of the economy, employment, work and solidarity (DRIEETS) of Ile-de-France, imposing on him to “modify the clauses of contracts concluded with its suppliers relating to logistics penalties”, indicates the Council of State in a decision rendered on February 9.

Priority question of constitutionality

The highest administrative court specifies that the leader of large-scale food distribution in France raised a priority question of constitutionality, considering that the administration's decision ignored in particular "the principle of legality of offenses and penalties". The Council of State considered that the legal texts do not "define the 'sufficient margin of error' that the distributor is required to grant to its supplier in the contracts concluded with it" before imposing a logistics penalty. This point "raises a question of a serious nature" and there is therefore "reason to refer the priority question of constitutionality invoked to the Constitutional Council", decided the Council of State.

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The Constitutional Council confirmed Friday evening that it had been seized of this question. Logistics penalties are provided for in the contracts that supermarkets sign with their suppliers. As part of commercial negotiations, both parties agree on the purchase price of a product, but also on its delivery terms. If the contract is not respected, penalties may apply.

But the government, relying in particular on the work of the Fraud Repression Agency (DGCCRF), estimated that certain distributors are diverting these penalties “to restore their financial health” at the expense of suppliers. At the end of September 2022, he called for a “moratorium on logistical penalties”, a call which was in no way binding. At that time, the authorities indicated that four food distribution brands, whose identities had not been made public, had to comply with the regulations, "under penalty of financial penalties of several million euros ".