COMPETITION • FRENCH LAW • RESTRICTIVE PRACTICES
Under Article L. 442-3, a) (formerly Article L. 442-6, II, a) of the Commercial Code, clauses or contracts that provide for the possibility of retroactive discounts, rebates or commercial cooperation agreements are void. The purpose of this provision is to prohibit so-called “wedding basket” (corbeille de la mariée) practices, which consist of renegotiating the supplier’s financial participation in the financing of an acquisition or investment by the distributor and making the continuation of the relationship conditional on the acceptance of additional conditions compared to those previously accepted. Commercial cooperation agreements concluded after the services have been provided, whether those services have in fact been provided or are actually specific or parity clauses – which automatically grant a partner the more favorable conditions that its co-contractor grants to third parties – are also automatically null and void. On the other hand, the text does not prohibit all rebates calculated on sales or services previously performed: end-of-year rebates or requests for provisional payment of rebates remain lawful.
