United States: Trade Relationships After The "Sapin II Law"

One year after the "Macron Law", the Law for transparency, prevention of corruption and modernisation of the economy adopted on 8 November 2016 and currently under scrutiny by the Constitutional Council following referral on 15 November 2016, once again amends the rules applicable to trade relationships as regards payment terms and commercial negociations.

Commercial negotiations: what changes

  • Duration of the single written agreement: it may be multiannual, but the price will be revisable

The new law preserves the obligation for suppliers and distributors under Article L. 441-7 of the Commercial Code to sign a single agreement or a framework agreement setting out the obligations the parties undertake to perform at the end of the negotiation (particular terms and conditions of sale, commercial cooperation obligations, and other obligations facilitating the commercial relationship). A similar framework, although less restrictive, is set out for the relationship between supplier and wholesaler (Article L. 441-7-1 of the Commercial Code).

The single agreement or framework agreement had to be concluded every year before the 1st of March or within two months of the beginning of the marketing period for goods and services subject to a specific sales cycle.

This will no longer necessarily be the case after the entry into force of the Sapin II Law, which grants suppliers, distributors and wholesalers the possibility to conclude multiannual agreements and framework agreements. As amended by the Sapin II Law, Articles L. 441-7 and L. 441-7-1 of the Commercial Code now provide that: "the written agreement is concluded for a duration of one year, two years or three years, at latest on 1 March of the year during which it takes effect or within the two months following the beginning of the marketing period of products or services subject to a specific sales cycle. When it is concluded for a duration of two or three years, it specifies the terms under which the agreed price is revised. Such  erms may take into consideration one or several public indexes reflecting the evolution of the price of production factors".

The new provisions are applicable to agreements concluded as of 1st of January 2017, and therefore apply to the annual negotiation cycle beginning on 1st of December 2016.

The opportunity to conclude single agreements or framework agreements of a duration reaching up to three years will have the benefit of no longer constraining companies who choose this option to undergo annual negotiations, which will facilitate the setting up of stable business and investment plans within suitable timeframes adapted to their activities and which will reduce negotiation costs. The risk deriving from the possible fluctuation of production costs, which weighs both on the supplier and on the distributor/wholesaler, will have to be managed by fixing the appropriate price revision terms to react to an increase or decrease of production costs during the contract.

For contracts of a duration superior to three months covering the sale of certain goods, the obligation to renegotiate the price set out under Article L. 441-8 of the Commercial Code in the event of a fluctuation in the price of agricultural and foodstuff raw materials will apply, as the case may be, in conjunction with the price revision clause included in the single agreement. The law introduces several other measures in the food processing sector concerning prices of agricultural products.

  • New penalties for restrictive practices

The very strict framework for sanctions in case of non- compliance with the rules and formalism governing commercial negotiations remains unchanged: the violation of Articles L. 441-7, L. 441-7-1 and L. 441-8 of the Commercial Code is punishable by administrative fines reaching up to 375,000 euros for legal persons, and double this amount in case of repeated violation.

However, the Sapin II Law modifies the long list of restrictive practices prohibited under Article L. 442-6 of the Commercial Code by introducing two new forbidden practices:

  • Subjecting or seeking to subject a trading partner to late delivery penalties in case of force majeure;
  • Imposing a price revision clause as provided for under Articles L. 441-7 and L. 441-7-1 of the Commercial Code or a price renegotiation clause under Article L. 441-8 of the same code by reference to one or several public indexes with no direct link to the contractual goods or services.

The practices prohibited under Article L. 442-6, I, 1° of the Commercial Code, consisting in obtaining from a trading partner any advantage unrelated to a commercial service effectively rendered or which is clearly disproportionate to the value of the service rendered, are extended to the participation in the financing of promotional activities and the remuneration of services rendered by an international central facility grouping distributors.

The civil fine incurred in case of a violation of Article L. 442-6 of the Commercial Code is increased from 2 to 5 million euros and this fine may also be increased to the triple of the sums unduly paid or to 5 % of turnover generated in France.

Adjustment Of Payment Terms

  • Goods delivered outside the European Union

The Sapin II Law introduces a new derogation from the 60-day cap from the date of the invoice, provided for under Article L. 441-6, I, ninth indent of the Commercial Code for payment terms agreed between professionals. The new maximum term comes in addition to the optional cap of 45 days end of month from the date of issue of the invoice for the term which can be agreed by the parties on condition that it is not grossly unfair to the creditor, and in addition to the maximum 45 days from the date of issue of the invoice provided for summary invoices, i.e. for invoices issued monthly for several separate deliveries of goods or services provided to the same person during a calendar month.

For the payment of VAT-free purchases of goods that are to be delivered outside the European Union, without being processed or transformed, the maximum term that can be agreed between professionals is now set at 90 days from the date of issue of the invoice. Late payment penalties apply if

the goods are not actually exported in the end.

The new measure aims to support small and medium firms exporting outside the EU and therefore the 90- day cap does not apply to purchases made by "large companies", a concept which is not clearly defined.

  • Reinforcement of penalties

The Sapin II Law significantly reinforces the sanctions incurred for violations of the rules applicable to payment terms: the maximum administrative fine provided for under Article L. 441-6, VI of the Commercial Code is increased from 375,000 euros to 2 million euros for legal persons.

Sanction decisions adopted by the DGCCRF (the governmental agency for competition policy, consumer affairs and fraud control) for violations of the rules applicable to payment terms will systematically be published (Article L. 465-2, V of the Commercial Code).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.