Newsflash | Decision of the Constitutional Council and Judicial Review of the Prize

Decision of the Constitutional Council n ° 2018-749 QPC of November 30, 2018

The Constitutional Council validates the possibility of a control by the judge of the contractual price in the event of significant imbalance

On November 30, 2018, the Constitutional Council issued a decision n ° 2018-749 QPC on the constitutionality of article L. 442-6, I, 2 ° of the Commercial Code which sanctions the fact, by any producer, trader , industrialist or person registered in the trades directory, "to subject or attempt to subject a commercial partner to obligations creating a significant imbalance in the rights and obligations of the parties". 

The priority question of constitutionality (QPC) concerned the concept of significant imbalance as interpreted by the Court of Cassation in its Galec judgment [I] delivered on January 25, 2017. The latter in fact ruled that this article did not exclude that "the significant imbalance may result from a mismatch of the price to the good sold", thus authorizing "a judicial control of the price, since this does not result from free negotiation and characterizes a significant imbalance in the rights and obligations of the parties ”.

The regime of significant imbalance in competition law is now distinguished from that of consumer law, which does not authorize such judicial price control. However, in its decision n ° 2010-85 QPC of January 13, 2011, the Constitutional Council was based on the fact that the “legislator referred to the legal notion of significant imbalance between the rights and obligations of the parties which appears to article L.132-1 of the consumer code ”, the content of which has“ already been specified by case law ”to declare this article in conformity with the principle of legality of offenses and penalties.

By its decision n ° 2018-749 QPC of November 30, 2018, the Constitutional Council confirms for the second time the validity of article L.442-6, I, 2 ° of the Commercial Code with regard to the principle of legality of offenses and penalties but also freedom of enterprise and freedom of contract, despite the new understanding of the concept of significant imbalance.

Regarding the compliance of the system with the principle of legality of offenses and penalties, the Constitutional Council is content to refer to recital 4 of its previous decision of January 13, 2011 according to which the concept of significant imbalance was defined "under conditions which allow the judge to speak out without its interpretation incurring arbitrary criticism ”.

On the other hand, the Constitutional Council confirms the conformity of the system with the freedom of contract and the freedom to undertake, after having noted that the limitations to these freedoms resulting from the contested text were justified by the general interest and that it was not did not result in any disproportionate harm with regard to the general interest objective pursued. The Constitutional Council thus notes that:

i. maintaining a balanced relationship between partners is an objective of general interest,
ii. the appreciation of the price is an element allowing to characterize the existence of a significant imbalance in the obligations of the trading partners.

The Constitutional Council thus concludes by reconciling, on the one hand, the freedom to conduct business and the freedom of contract and on the other hand the general interest, the limitations imposed on these freedoms by the legislator within the framework of Article L. 442-6, I, 2 ° of the Commercial Code are not disproportionate with regard to the objective of general interest pursued. 

Companies must therefore bear in mind that the judge is authorized to control the contract price as long as this does not result from free negotiation and characterizes a significant imbalance in the rights and obligations of the parties. It should also be remembered that the violation of Article L.442-6, I, 2 ° of the Commercial Code is punishable by a civil fine of up to 5 million euros. The judge can also order the annulment of the contract, the recovery of the undue payment and compensation for the damage caused.

 

[I] Cass. com., 25 Jan. 2017, n ° 15-23547