Logistics penalties: new DGCCRF guidelines

Following the adoption of the March 30, 2023 law aimed at reinforcing the balance in commercial relations between suppliers and distributors, the DGCCRF has updated its guidelines, the new version of which is published today, September 21, 2023.

What's new:
➡ logistics penalties are now capped at 2% of the value of products ordered falling within the product category within which non-performance of contractual commitments has been observed. The guidelines thus clarify the notion of "product category", which refers to the homogeneity of products to be taken into account in the basis for calculating the ceiling. For example, yoghurts and butter must be considered as two distinct categories among dairy products;

➡ the French Commercial Code now stipulates that no penalty may be imposed more than one year after the occurrence of the breach giving rise to the penalty. The DGCCRF clarifies that the term "inflict" refers to the distributor's final invoice of penalties to the supplier, and not to the prior notice of penalties.

➡ Lastly, they clarify the prohibition on the "automatic deduction" of penalties, indicating that this is characterized when the distributor deducts from the amount of a supplier's invoice the sum corresponding to logistical penalties, even though the supplier has contested them within the time limit stipulated in the contract.

⚠ These guidelines correspond to the administration's doctrine, subject to the courts' assessment.