The Constitutional Council will have to rule on penalties which strain the relationship between E.Leclerc and suppliers

Already in 2022, the government had pointed out the logistical penalties inflicted by several large retail groups, believing that they were using them to “restore their financial health”.

Seized by the E.Leclerc group, the Council of State relies on the Constitutional Council to resolve the question of the logistical penalties that the distributor inflicts on its agro-industrial suppliers. According to a press release sent on Friday February 9 by the Council of State,The Sages have been seized of a priority question of constitutionality concerning this practice, which had earned the brand an injunction from the authorities in 2022. The Constitutional Council confirmed it Friday evening.

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 Department (DGCCRF), estimated that certain distributors were misusing these penalties. “to regain financial health” on the backs of suppliers.

A “margin of error” to set

At the end of September 2022, the government therefore called for a “moratorium on logistics penalties”. At the time, the authorities declared 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”.

An organ of the Ile-de-France region, DRIEETS, had also imposed on E. Leclerc to “modify the clauses of contracts entered into with its suppliers relating to logistics penalties”recalls the Council of State.

But the Council of State considered that the legal texts do not “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 logistical penalty, a central point to determine whether these are abusive or not.

This point “raises a question of a serious nature” and so there is “instead of referring the priority question of constitutionality invoked to the Constitutional Council”decided the Council of State.