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ANIA - Relaciones comerciales en la cadena alimentaria en Francia


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Presentación realizada por Rachel Blumel, Directora del Departamento Legar en ANIA (Federación Francesa de Industrias Alimentarias) sobre las relaciones comerciales en la cadena agroalimentaria en Francia en el marco del Seminario "Las relaciones comerciales en la cadena agroalimentaria: buscando soluciones en España y la UE" de FIAB y Cajamar. 8 de marzo de 2012

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ANIA - Relaciones comerciales en la cadena alimentaria en Francia

  1. 1. Commercial relations French case Seminar « Trade relations in the food chain : looking for solutions in Spain and the European Union »Madrid, 8 March 2012 1
  2. 2. Outline of the presentation  French food industry and French retailers’ market  Long process to develop our specific law to ensure fair commercial relations  The specific French law  Legal tools to enforce the specific law  Assessment of the law’s application Madrid, 8 March 2012 2
  3. 3. French food industry  1st French industry with a turnover of € 143.6 billion in 2010  More than 10,000 companies of which 90% are SMEs  Second national employer with 477,000 jobs  1st partner of French farmers using 70% of French agricultural resources (raw materials)  4th world exporter after the U.S., Germany and the Netherlands  80 % of food products consumed in France are produced locally (the only industry in this case at the national level)Madrid, 8 March 2012 3
  4. 4. French retailers’ market Food trade is dominated by retailers (hypermarkets and supermarkets) which represent around 70% of the market. Source : panorama des IAA du MAAP In 2010, French families bought 66.6 % of their food products in hypermarkets (more than 2500 m²) and in supermarkets (more than 400 m²) [compared to 67.2 % in 2009]. Source INSEE Madrid, 8 March 2012 4
  5. 5. French retailers’ market Retailers market shares for food products Groupe Carrefour 21,8 % Galec / Leclerc 17,6 % Groupe Intermarché 13,3 % Groupe Casino 12,9 % Groupe Auchan 11,1 % Système U 9,3 % Lidl 4,7 % Cora / Provera 3,1 % Aldi 2,4 % Dia 2,2 % Source : Kantar Worldpanel (consolidation Linéraires) Cumul annuel mobile au 27/11/11 PGC + frais LS – En valeur – Hypers + supers + supérettes + hard discountMadrid, 8 March 2012 5
  6. 6. French retailers’ market  The French retailer’s market is organized around integrated and independent retailers. The consequences are very important in terms of liability and agreements  Integrated retailers such as Carrefour, Auchan, Cora, Casino negotiate at the national level and have the same range of products in each supermarket.  Independent retailers such as Leclerc, Système U and Intermarché : the producers have to negotiate at national level and at regional level before negotiating with each supermarket. Each supermarket’s manager can choose his range of products.  The French food market’s characteristic is an imbalance of economic relations between 7 retailers and 10 000 producers. This imbalance creates difficulties for producers and farmers and facilitates the occurrence of unfair practices.Madrid, 8 March 2012 6
  7. 7. Long process for a specific law 5 laws in 20 years to progressively develop and adapt our legislation to stakeholders’ practices :  Loi Galland in 1996 : beginning of specific legislation for commercial negotiations to take into account the unbalanced relations between retailers and producers  Loi NRE in 2001 : identification of several unfair practices with penalties (fines)  Loi Dutreil in 2005 : disconnecting the loss leading threshold from the invoice price, taking into account the payment of services such as end of aisle display, catalogue …  Loi Chatel in January 2008 : finalizing this evolution initiated by the Dutreil law  Loi LME in August 2008 : to facilitating negotiation and competition among retailers by eliminating the discrimination ban. Madrid, 8 March 2012 7
  8. 8. Specific French law  A  A negotiation based on the producer’s offer  An annual written agreement before 1st March  A list of prohibited unfair commercial practices Madrid, 8 March 2012 8
  9. 9. Specific French lawA negotiation based on the producer’s offer  General sales conditions must be communicated to all retailers General sales conditions remain the base of negotiation with the compulsory minimum content: sales conditions (delivery conditions, transfer of risk, retention clause), price list, discounts and payment terms. Suppliers can develop their General Sales Conditions in particular for logistic issues….  General sales conditions must be organized by category and communicated to all retailers in the same category Differentiating General sales conditions for each category of clients (retail, cash and carry, distance selling, export…) is possible. Each producer can organize his own general sales conditions by category of clients if he can justify them. A retailer as Carrefour or Leclerc cannot be considered as a category of client.  Special conditions of sales negotiated and communicated only to the retailer concerned Possibility to negotiate special conditions of sales, which must be justified by true counterparts. It is the only way to differentiate between clients. Madrid, 8 March 2012 9
  10. 10. Specific French lawAn annual written agreement before 1st March  This annual written agreement has to formalize the results of the negotiation to ensure real controls of its balance. Each commitment must be clearly exposed in this agreement : price reductions granted by the producers and counterparts given by the retailers.  The compulsory content of the annual agreement is : - Sale conditions negotiated on the base of the general sale conditions - Special sale conditions such as rebates, discounts or year-end bonuses - Sales cooperation or trade services which are provided by the retailer and paid by the supplier such as end of aisle display, product highlighting...The object, the date and the conditions of the agreement as well as the price and the list of products concerned. - Other obligations to develop the commercial relation such as statistics, trade shows…  Penalties Joint obligation to sign this annual agreement before 1st March : € 75,000 and € 375,000 for legal entities Madrid, 8 March 2012 10
  11. 11. Specific French lawList of prohibited unfair commercial practices  The French legislation prohibits several unfair commercial practices, for example: - Submitting (Imposing) or trying to submit (impose) a commercial partner to obligations which create a significant imbalance between contractual rights and obligations. - Obtaining or trying to obtain an advantage, prerequisite or condition in order to place an order, without written commitment about a proportional volume of products. - Obtaining or trying to obtain under threat the total or partial delisting of products, unfair conditions concerning prices, payment deadlines or services. - Submitting or trying to submit a partner to abusive payment conditions. - Refusing to indicate the supplier’s name and address on private label products if the supplier requires it. - Asking for an alignment of the contract terms with the best commercial conditions obtained by the competitors. - Stopping commercial relations without observing a notice period which is the double for private labels etc …. Madrid, 8 March 2012 11
  12. 12. Specific French lawList of prohibited unfair commercial practices  Penalties ₋ Refund of unduly paid sums - Civil fine (limited to € 2 millions) can represent three times the amount of sums unduly paid. - Publication, distribution or display of the Court’s decision. Madrid, 8 March 2012 12
  13. 13. Legal tools to enforce the specific law  Investigations and legal actions by public authorities  A commission in charge of analysing commercial practices Madrid, 8 March 2012 13
  14. 14. Legal tools to enforce the specific lawInvestigations and legal actions by public authorities  The French Ministry of Economy : ₋ has investigation powers and organizes each year, 2 investigations of both suppliers and retailers to check commercial practices (content of annual written agreement, invoices, documentary evidences ….) ₋ In case of unfair practices, the French Ministry of Economy can file claims on behalf of the producers who fear being delisted. ₋ Case laws increase each year and the most dissuasive tool for retailers is the publication of Court’s decisions.  A few examples of case laws ₋ 9/02/2010: Condemnation of Carrefour for an imprecise written agreement concerning services invoiced to suppliers. ₋ 22/11/2011: Condemnation of Leclerc to refund € 23 millions unduly paid to 28 suppliers. ₋ 24/01/2012: Condemnation of Casino for abusive contractual commitments (return of unsold products to suppliers) to a fine of € 400,000. Madrid, 8 March 2012 14
  15. 15. Legal tools to enforce the specific lawA commission in charge of analysing commercial practices  This public authority was created in 2001 to give recommendations about unfair or fair practices between suppliers and retailers.  The president of this Commission is a member of Parliament.  Members of this Commission represent equally retailers, suppliers, the Minister of Economy, experts, members of Courts.  All stakeholders or members of government can report a matter to this Commission which writes and publishes positions. The Commission can also investigate a matter on its own initiative.  Judges can refer to this doctrine for their judgment  Stakeholders can also refer to it in their relationships  The difficulty is to obtain a consensus for important issues and, sometimes, some topics cannot be resolved. Madrid, 8 March 2012 15
  16. 16. Assessment of our specific law  We are fortunate and proud to have a specific and useful legislation justified by our national context.  Unfortunately, commercial relations are always difficult and become more and more strained particularly since the entry into force of the last law in 2008 and the beginning of the increase of raw materials prices in 2007: retailers continue to refuse price conditions, to negotiate advantages without real counterparts, to impose abusive contracts and transfer costs and liabilities to suppliers.  Anyway, each condemnation is very useful to remind retailers about their obligations even if, often, they find solutions to get round legal obligations.  For French suppliers, our law has 3 weaknesses : ₋ Contradictory interpretations by retailers and suppliers ₋ Slowness of Court’s decisions ₋ Increase of settlements made outside courts with the assistance of public authorities but which are not made public (no Name and shame disincentive)  We hope that our government will be very attentive and reaffirm its will to apply our legislation. Madrid, 8 March 2012 16