Key Benefits:
Audiences concerned: economic operators in the agri-food sector.
Subject: list of products of which certain sales contracts must include a price renegotiation clause in the event of fluctuation in prices of agricultural raw materials; how to report this renegotiation.
Entry into force: the text comes into force on the day after its publication.
Notice: Article 1 of the Decree defines the list of products whose contracts of sale for a period of more than three months must include a clause to take into account changes in the production price in the event of fluctuation in the prices of agricultural raw materials as well as the reporting procedure of the negotiations. Article 2 codifies the criteria for appreciation of the high rise in prices of certain agricultural raw materials, initially set by the Decree No. 2008-534 of 5 June 2008. Section 2 also defines the list of products for which, in situations of high rise in prices of certain agricultural raw materials, the fact for a reseller to require its supplier unfairly low disposal prices is responsible and requires it to repair the damage caused.
References: the Trade code can be accessed at the Légifrance website (http://www.legifrance.gouv.fr).
The Prime Minister,
On the report of the Minister of Economy, Industry and Digital Affairs and the Minister of Agriculture, Agri-Food and Forestry, Government Spokesperson,
In view of Commission Regulation (EU) No 936/2013 of 12 September 2013 establishing, for 2013, the "prodcom list" of industrial products provided for in Council Regulation (EEC) No 3924/91;
Vu le Trade codeincluding articles L. 441-8 and L. 442-9,
Decrete:
Chapter I of Book IV of the Commercial Code (regulatory part) is supplemented by two articles D. 441-6 and D. 441-7 as follows:
"Art. D. 441-6. - For the purposes of Article L. 441-8, the list of products set out in the second paragraph of Article L. 442-9 and set out in Article D. 442-7 is supplemented as follows, by reference to the "prodcom list" of industrial products provided for in Regulation (EEC) No. 3924/91 of the Commission:
" - 10.73 : Manufacture of pasta, excluding fresh pasta:
" - 10.73.11: Macaronis, noodles and other similar products based on flour;
" - 10.73.12 : Couscous.
"Art. D. 441-7. - I. - The written record of the renegotiation under the clause provided for in Article L. 441-8 includes:
" - Part 1 justifying the implementation of the clause and the encryption of the resulting price change request;
" - part 2 presenting the response to this request;
" - part 3 presenting the terms and result of renegotiation.
“II. - Part 1 is filled freely by the contractor who requested the implementation of the clause. It contains:
« 1° The demonstration that the conditions for triggering renegotiation, as defined by the parties in the clause provided for in Article L. 441-8, are met;
« 2° The encryption, circumstantial and argued, of the demand for variation of the agreed price between the parties, in force at the time of the renegotiation;
« 3° The date of the application to implement the clause.
"III. - Part 2 is freely filled by the contractor who is not at the origin of the renegotiation request. Except where it accepts the request for renegotiation without reservation, and expressly indicates that it contains:
« 1° Demonstrate that the conditions for triggering renegotiation, as defined by the parties in the clause provided for in Article L. 441-8, are not met;
« 2° Either, where appropriate, the encryption, circumstantial and argumented, of the variation in the price agreed between the parties in the convention, as it should, in his view, be fixed, or the reasons for refusing any variation;
« 3° The date of receipt of the application for implementation of the clause.
"IV. - Part 3 is prepared jointly by the two contractors.
"When the implementation of the clause results in an agreement of the parties on a change in the agreed price between them, in force at the time of the renegotiation, Part 3 states:
« 1° The encryption of the variation as decided by the parties after the renegotiation;
« 2° The date of entry into force of the new agreed price.
"In the opposite case, Part 3 sets out the finding of disagreement.
"V. - The record is dated and signed by each of the parties to the contract at the end of the renegotiation, whether or not it results in an agreement of the parties on a variation in the price agreed between them in force at the time of the renegotiation.
"The signature of the record attests to the effectiveness of the renegotiation and is not acceptable to the party requesting renegotiation on Part 2 or agreement of its partner on Part 1. »
Chapter II of Book IV title IV of the Commercial Code (regulatory part) is supplemented by three articles D. 442-5 to D. 442-7, as follows:
"Art. D. 442-5.-The agricultural raw materials referred to in the second paragraph of Article L. 442-9 are defined as milk, cereals (orge, tender wheat, hard wheat, corn) and oilseeds (colza, sunflower, soy, peas proteagineux).
"Art. D. 442-6.- The following increases in prices of agricultural raw materials, within the meaning of Article L. 442-9, are reported annually and recorded for three consecutive months, compared to the average of the courses observed during the corresponding periods of the last five campaigns, excluding the two periods in which the courses were the lowest and the highest respectively:
“Wat: 30%;
"-orge, tender wheat, hard wheat, corn: 40%;
"-colza, sunflower, soy, proteaginous peas: 30%.
"A decree of Ministers responsible for the economy and agriculture determines the indicators selected for the implementation of the preceding paragraphs.
"Art. D. 442-7.-I.-For the purposes of the second paragraph of Article L. 442-9, the list of products concerned includes:
"-bovin, calf, pork, ovin-caprin, horse, poultry and rabbit: carcasses and their pieces, meats and abats, chopped meats, fresh sausages and meat preparations;
"-products of fish farming or from the first transformation of these products;
"milk and dairy products from the first milk processing;
"eggs and ovo-food from their first transformation.
"II.-Products referred to in III, IV, V and VI of this Article shall be classified by reference to the "Prodcom list" of industrial products, as provided for in Council Regulation (EEC) No. 3924/91.
"III.-The fresh sausages and meat preparations mentioned in the second paragraph of I are the following:
"-10.13: Preparations and meat products:
"-10.13.11: Cut, salted, dried or smoked pork meats and smoky meats (bacon and ham);
"-10.13.12: Salted, dried or smoked beef meats;
"-10.13.13: Other salted, dried or smoked meats and edible abats;
"-10.13.14: Sausages and similar scutters;
"-10.13.15: Other meat, abat and blood preparations and cans, excluding prepared dishes.
"IV.-Products derived from the first processing of fish farming products referred to in the third paragraph of I are the following products, provided they are derived from fish farming and not from fishing:
"-10.20 Fish Transformation and Conservation:
"-10.20.11: Fish fillets and other fish meats (including chopped), fresh or chilled;
"-10.20.12: Fresh or chilled fish and eggs;
"-10.20.21: Dried, salted but not smoked fish fillets;
"-10.20.22: Dried, salted or smoked fish, flours, powders and pellets of fish for human food;
"-10.20.23: Dried fish, salted or not in brine;
"-10.20.25: Other fish-based preparations and cans, excluding prepared dishes.
"V.- Dairy products from the first milk processing mentioned in the fourth paragraph of I are:
"-10.51: dairy and cheese products:
"-10.51.11: Liquid milk;
"-10.51.12: Milk and cream containing more than 6% fat, not concentrated or sweet;
«-10.51.30 : Beurre et pasta à tartiner laitières ;
"-10.51.30.30: Fat content ≤ 85%;
«-10.51.40 : Cheese ;
"-10.51.51: Milk and cream, concentrated or containing added sugars or other sweeteners, in other than solid form;
"-10.51.52: Yaourts and other fermented or acidified lactation products.
"VI.-Egg food products derived from the first egg processing referred to in the fifth paragraph of I are the following:
"-10.89.12: eggs, canned, and egg yolks, fresh and canned; cooked eggs, in shell; ovalbumine. »
The Decree No. 2008-534 of 5 June 2008 referred to in Article L. 442-9 of the Commercial Code and setting out the conditions defining the high rise in prices of certain agricultural raw materials and the list of products concerned is repealed.
The Minister of Agriculture, Agri-Food and Forestry, spokesperson for the Government, and the Minister of Economy, Industry and Digital Affairs are responsible, each with respect to him, for the execution of this Order, which will be published in the Official Journal of the French Republic.
Done on 17 October 2014.
Manuel Valls
By the Prime Minister:
Minister of Economy, Industry and Digital,
Emmanuel Macron
Minister of Agriculture, Agri-Food and Forestry, Government Spokesperson,
Stéphane Le Foll
