Updated summary of the intervention of Me Muriel LE FUSTEC, Lawyer specialized in economic law, Cabinet ARTLEX

visa of article L 442-6 I 2° of the French Commercial Code »

 

It is within the framework of the transposition of directive 93/13/EEC of April 5, 1993 relating to unfair terms in contracts concluded with consumers, that the French legislator integrated, by law n°95-96 of 1 February 1995, the notion of significant imbalance in former article L 132-1 of the Consumer Code, now article L 212-1.

​

It was only thirteen years later that this notion was taken up in commercial law. Thus, the law n°2008-776 of August 4, 2008 known as Law of Modernization of the Economy (LME) modified the second point of article L 442-6 I of the Commercial Code, adding to the list of restrictive practices, the fact "  of subjecting or attempting to subject a commercial partner to obligations creating a significant imbalance in the rights and obligations of the parties._cc781905-5cde- 3194-bb3b-136bad5cf58d_”.

​

More recently, the notion of significant imbalance has been incorporated into common law of obligations in article 1171 of the Civil Code, by the reform of the law of obligations which entered into force in October 2016. This new article disposes_cc781905-5cde-3194-bb3b- 136bad5cf58d_: “In a contract of adhesion, any clause which creates a significant imbalance between the rights and obligations of the parties to the contract is deemed unwritten. The assessment of the significant imbalance does not concern either the main object of the contract or the adequacy of the price to the service. ”

​

The articulation of the three legal mechanisms for apprehending significant imbalances raises new questions about the respective scope of their application and the possibility of simultaneously invoking the general law of obligations, and the special law of consumption or that of restrictive practices of competition.

​

With regard to the application of Article L 442-6 I 2° of the Commercial Code, recent case law has clarified or confirmed the conditions of application of this article which is only intended to apply if_cc781905 -5cde-3194-bb3b-136bad5cf58d_:

​

• one of the operators has submitted or attempted to subject his co-contractor to obligations creating an imbalance : there is therefore no sanction if the contract, although unbalanced, has been accepted without "  submission » ;  

• the submitted part is a " partenaire commercial ": the text is therefore not intended in principle to protect civil service providers (lawyers, architects, commercial agents, etc.) or occasional co-contractors ;

• the situation of imbalance is created by the obligations to which the contracting party is subject. This requirement distinguishes the scope of application of article L 442-6 I 2° from that of article L 420-2, 2nd paragraph of the Commercial Code (which sanctions the fact of abusing the state of dependence of a partner), which involves demonstrating the existence of a situation of structural economic dependence pre-existing the abuse, and moreover potentially exogenous to any contractual relationship. Even if most often a situation of structural economic dependence of the party suffering from the imbalance exists in the cases of application of article L 442-6 I 2°, it does not constitute a condition for the application of this article, no more than the new article 1171 of the Civil Code. Indeed, if we analyze this new article 1171 literally, the judge will have to find that the significant imbalance is " créé " by the disputed clause in order to be able to declare it unenforceable.

• the imbalance is “ significatif ” : which implies that the magistrates refer to a norm_cc781905-954-1b-3-bb-3 136bad5cf58d_of what would be an imbalance “ not significant ” and therefore acceptable. Such a standard is however not possible to enact, as the situations potentially concerned are multiple and complex, but also specific, particularly according to the economic sector in which one is located. Thus, the wholesale rejection of a supplier's general conditions of sale generally appears abusive when it is the act of a large food retail group with regard to its suppliers. It is much less so when it comes from an agricultural cooperative with regard to fertilizer or seed suppliers, or even from a group of veterinarians with regard to laboratories or animal feed suppliers. It is clear that, even if theoretically the visa sanction of article L 442-6 I 2° is not linked to the pre-existing situation of balance or structural imbalance of the parties, it is an important factor in the assessment of the significant imbalance, but also of the ability of the operator who " soumet " to prevent the effective negotiation of agreements with its co-contractors. This assessment, left to the subjectivity of the magistrates, generates a hazard and therefore insecurity for the operators ;

• The imbalance must result " des obligations ", therefore from all the provisions of the agreement, which excludes a clause-by-clause analysis like the one that should be retained for the application of the new article 1171 of the Civil Code. The question then arises of the possibility of integrating, in the analysis under Article L 442-6 I 2° of the Commercial Code, the adequacy of the price to the service. The analysis of this adequacy is expressly excluded by the terms of article 1171 of the Civil Code but is not with regard to article L 442-6 I 2° of the Commercial Code.>>

 

​