E.Leclerc: why the distributor contacted the Constitutional Council

The leader of mass distribution in France E.Leclerc raised a priority question of constitutionality (QPC) with the Constitutional Council on the file of logistics penalties inflicted on agro-industrial suppliers which earned him an injunction from the authorities in 2022. distributor believes that the administration's decision ignored in particular "the principle of legality of offenses and penalties".

These logistics penalties are requested from suppliers when they fail to ensure distributors are restocked on time. At the end of 2022, E.Leclerc was targeted by an injunction under penalty emanating from the regional and interdepartmental direction of the economy, employment, work and solidarity (DRIEETS) of Île-de-France, imposing on him “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.

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.

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 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 ".