A scale tipping under the weight of crates, opposite a sheaf of tender documents

On Act no. 2026-796 of 18 August 2026 (emergency measures for the protection and sovereignty of agriculture), Article 54

The French Agricultural Emergency Act of 18 August 2026 deals with collective catering, water storage, wolves and abusive legal challenges.

Beyond those sectoral matters, however, Article 54 of the Act makes a significant amendment to Article L. 442-1 of the French Commercial Code, one that concerns every business, well beyond the agri-food sector1.

The Act creates two new restrictive competition practices: repeated tenders and order cuts during negotiations.

In paragraph I of Article L. 442-1, a new item 6° sanctions the fact of « subjecting a commercial partner to repeated competitive bidding procedures or calls for tenders whose frequency or terms are liable to create a significant imbalance in the rights and obligations of the parties ».

In paragraph II, the home of the sudden termination of established commercial relationships, the Act of 18 August adds a new sub-paragraph: « The author of a substantial reduction, in the course of the negotiation of a contract, of the volumes ordered from a commercial partner, including where such reduction is temporary, may also incur liability if, by reason of its scale, its unusual nature or the circumstances in which it occurs, the reduction is liable to jeopardise the balance of the established commercial relationship »2.

Both provisions entered into force on 20 August 2026, without any transitional rule. They will therefore apply to the negotiations opening this autumn.

Repeated tenders

Competitive bidding is sometimes regarded as an antidote to the established commercial relationship. The case law holds that a mechanism whereby orders are awarded through systematic consultation « is exclusive of any stable relationship », regardless of the fact that the same supplier has been selected for years3.

An annual call for tenders introduces « an element of uncertainty which prevent[s] [the supplier] from having a legitimate belief in the continuity of the relationship »4.

Scholars had denounced the perverse effect of that case law. As early as 2016, some observed that large retailers had « skilfully circumvented the statutory scheme by subjecting their partners to repeated tenders in order to render the relationship precarious »5.

To put an end to this instrumentalisation of the call for tenders, the 2026 legislature did not choose to overrule the case law. It does not say that a commercial relationship is deemed established even though it is punctuated by tenders.

It creates a stand-alone restrictive practice: liability attaches to whoever subjects a « commercial partner to repeated competitive bidding procedures or calls for tenders whose frequency or terms are liable to create a significant imbalance in the rights and obligations of the parties ».

It is worth noting that, notwithstanding the origins of the provision and its insertion in an Act on « agricultural sovereignty », its scope is general. Any person engaged in production, distribution or services is concerned.

The wording, incidentally, very nearly failed to see the light of day. Deleted by the Senate, the Minister considering the notion of « economic and social precariousness » adopted by the National Assembly « too subjective » and the provision redundant with the rules on sudden termination, it was reinstated by the joint committee of both chambers, which replaced that notion with the criterion of significant imbalance6.

The wording nonetheless remains rather enigmatic and will call for a concrete, case-by-case assessment. What is targeted is neither the holding of tenders as such, nor the intention to render the relationship precarious that may lie behind it. What is targeted, it seems to us, is the abuse of that freedom. Only subjecting a partner to repeated tenders, whose frequency or terms are liable to create a significant imbalance, is sanctioned. « Subjecting » here refers to the fact of imposing a procedure, not to the pressure on consent required under item 2°7. Nor does the imbalance need to be established: it is enough that the frequency or terms be « liable to » create it.

One may wonder under what conditions subjecting a partner to tenders will be regarded as liable to create a « significant imbalance ». The travaux préparatoires target retailers who « increasingly split volumes so as no longer to depend on a single supplier » and a practice which « deprives suppliers of any visibility, discourages investment and weakens the entire chain »8. The hypothesis, it seems to us, is that of a relationship in which one party commits itself (investments, capacity, stocks) while the other reserves the right to call everything into question at each renewal.

Order cuts

Under the previous law, a reduction in order volumes was captured only through the lens of partial termination. A fall in orders resulting from « a change in purchasing policy and strategy », a halving of turnover, a reduction made « deliberately » and unrelated to the customer’s own level of activity: all were partial terminations requiring notice9. Conversely, a reduction « inherent in a market in crisis » or « not deliberate » does not give rise to liability10, and changes « which are not substantial » made in the course of an annual negotiation are not terminations11.

The law, however, could not reach a practice denounced before the Senate: the temporary, targeted cut in orders in the midst of negotiations, followed by a return to normal once the agreement is signed. Such a cut is neither a termination, since the relationship continues, nor a significant imbalance, so long as the supplier has not given in. Former Article L. 442-6, I, 4°, which sanctioned the threat of termination, was repealed in 2019 and applied only « during the currency of the contract »12.

The new provision therefore sanctions neither the termination nor the insufficiency of notice, but « a substantial reduction, in the course of the negotiation of a contract, of the volumes ordered from a commercial partner, including where such reduction is temporary, if, by reason of its scale, its unusual nature or the circumstances in which it occurs, the reduction is liable to jeopardise the balance of the established commercial relationship »13.

As with repeated tenders, the reduction of volumes is not condemned as such, but in its effects. Liability is incurred only where the reduction is out of the ordinary in the way it manifests itself (its scale, its unusual nature or its circumstances) and in its effects on the relationship: it must be liable to jeopardise the balance of the established commercial relationship.

Significance

The observation is inescapable: Article L. 442-1 « keeps growing, notwithstanding the objective announced at the time of the 2019 reform of concentrating the law of restrictive practices around a few clearly identified practices »14.

Those additions are not necessarily useless, however, since they make it possible to reach practices regarded as harmful.

Under Article L. 442-4, Article L. 442-1 as thus expanded may be invoked by any person with a legitimate interest, by the public prosecutor, by the Minister for the Economy or by the President of the French Competition Authority, it being specified that the author of the practice may be ordered to pay a civil fine.

Since « suppliers rarely dare to come forward and complain »15, the future of these new provisions lies in the hands of the public authorities.

Takeaways

  • Since 20 August 2026, repeated competitive bidding procedures and calls for tenders whose frequency or terms are liable to create a significant imbalance constitute a stand-alone restrictive practice (French Commercial Code, Article L. 442-1, I, 6°), without any need to prove either submission or an actual imbalance, in every sector.
  • A substantial reduction, even a temporary one, of order volumes during the negotiation of a contract renders its author liable where it is liable to jeopardise the balance of an established relationship (Article L. 442-1, II, sub-paragraph 2): neither termination nor notice needs to be established, but the court will assess the scale, the unusual nature and the circumstances of the cut.

Notes

  1. Act no. 2026-796 of 18 August 2026 on emergency measures for the protection and sovereignty of agriculture (loi d’urgence pour la protection et la souveraineté agricoles), JORF 19 August 2026, Article 54, I, 2°. ↩
  2. French Commercial Code, Article L. 442-1, as amended by the Act of 18 August 2026, in force since 20 August 2026. Our translation. ↩
  3. Cass. com., 18 October 2017, no. 16-15.138. ↩
  4. Cass. com., 11 January 2023, no. 21-18.299; see also Cass. com., 7 December 2022, no. 21-15.649. Compare, for a relationship that became stable after initial tenders, Cass. com., 3 December 2025, no. 24-15.734. ↩
  5. L. Vogel and J. Vogel, « Panorama de la rupture de relations commerciales établies : un droit à réformer », AJ contrat 2016, p. 460. See also R. Amaro, AJ contrat 2019, p. 8; N. Mathey, Contrats, conc. consom. 2023, comm. 24. ↩
  6. French Senate, sitting of 2 July 2026, identical amendments nos. 190 rect. quater and 348, statement by Ms A. Genevard, Minister for Agriculture; report no. 893 (Senate) and no. 3067 (National Assembly) of the joint committee (commission mixte paritaire), 16 July 2026, text no. 894. ↩
  7. Cass. com., 20 November 2019, no. 18-12.823: submission « requires proof of the absence of effective negotiation ». ↩
  8. Amendments CE497 (Ms H. Laporte) and CE793 (Mr É. Martineau), explanatory statement; French National Assembly, Economic Affairs Committee, minutes no. 84, 4 May 2026, statement by Ms Laporte. ↩
  9. Cass. com., 23 January 2007, no. 04-16.779, Bull. civ. IV, no. 8; Cass. com., 6 April 2022, no. 21-10.265; Cass. com., 19 October 2022, no. 21-17.653. See M. Behar-Touchais, « Réduction des commandes et rupture partielle des relations commerciales », RDC 2005, no. 2, p. 392. ↩
  10. Cass. com., 8 November 2017, no. 16-15.285; Cass. com., 12 February 2013, no. 12-11.709. ↩
  11. Cass. com., 7 December 2022, no. 19-22.538. ↩
  12. Cass. com., 20 June 2018, no. 16-24.163; repealed by Ordinance no. 2019-359 of 24 April 2019. On threats of delisting that remained without effect, L. and J. Vogel, L’Essentiel Droit de la distribution et de la concurrence, September 2024, no. DDC202m9. ↩
  13. See supra, note 2. ↩
  14. N. Mathey, « Négociation commerciale. La chèvre et le chou », Contrats, conc. consom. 2026, no. 8-9, repère 8 (commenting on the bill at the Senate stage). ↩
  15. French Senate, sitting of 2 July 2026, verbatim record, statement by Ms A. Genevard, Minister for Agriculture, on amendment no. 149 rect. ↩