COMPETITION • FRENCH LAW • PRICE TRANSPARENCY
Article L. 441-9 (formerly Article L. 441-3) of the Commercial Code imposes an obligation to invoice for all purchases of products or all provisions of services for a professional activity. In addition to its probative value, the invoice is one of the essential elements of the price transparency regime established by Title IV of Book IV of the Commercial Code: It fixes the price resulting from the commercial negotiation and makes it possible to verify that the products and services are not resold at a loss. The obligation to invoice concerns all sales or purchases of products, whether as is or processed, and all services, whether performed by a private person or by a public entity, subject to provisions specifically applicable to the latter (public accounting rules and the Public Procurement Code, in particular). On the other hand, it applies only to transactions between professionals carried out on the French territory. The seller must issue the invoice and the buyer must require it. It is drawn up in duplicate and handed over upon completion of the sale or provision of services. As an exception, Article L. 441-9, which refers to Article 289, I of the General Tax Code, permits the practice of deferred invoicing, periodical invoices or statements of invoices.
Invoices, which, according to the Administration, no longer necessarily have to be written in French in dealings between professionals, must include a certain number of mandatory statements. These include “the names of the parties and their address, their billing address – if different, the date of the sale or service provision, the quantity, a precise description and the unit price excluding VAT of the products sold and services provided and also any price reduction applying on the date of the sale or provision of services and directly linked to this sale or service provision, excluding discounts not specified on the invoice”. The invoice must also state the date by which payment must be made and the discount terms applicable in the event of payment prior to the deadline set by the general terms of sale, as well as the penalty rate applicable after the payment date has passed and the amount of the fixed sum compensation for recovery costs due to the creditor in the event of late payment. The rate of the legally applicable VAT must also be included and, since the Ordinance of 24 April 2019, the purchase order number if one has been attributed by the buyer.
Infringements of the invoicing rules, which until now have been punishable under criminal law, have been sanctioned, since the Ordinance of 24 April 2019, by an administrative fine not exceeding EUR 75,000 for a natural person and EUR 375,000 for a legal entity, a maximum that may be increased to EUR 150,000 and EUR 750,000 respectively if the breach is repeated within two years. The administrative authority in charge of competition and consumer affairs issues the fine.