In a ruling dated 7 January 2026, the Commercial Chamber confirmed that Article L. 442-6, I, 2° (former) of the Commercial Code does not require any structural asymmetry of economic power between the parties.

A distributor may attempt to subject its suppliers to a significant imbalance even when they have strong brands and alternative outlets.

On the other hand, the Court firmly reiterates the limits of the administration’s investigative powers: the minutes of hearings may only be disregarded if they constitute an effective complaint, particularly in relation to the existence of self-incriminating statements.

Court of Cassation, Commercial, Financial and Economic Chamber, 7 January 2026, No. 23-20.219

The case pits ITM Alimentaire International, the parent company of the Intermarché and Netto chains, against the Minister of the Economy. Following an investigation by the DGCCRF (French General Directorate for Competition Policy, Consumer Affairs and Fraud Control) conducted in 2013-2014 in the context of the ‘price war’, the administration accuses ITM of having implemented a national action plan aimed at obtaining, during the year, additional discounts from its suppliers, without any real compensation, in order to offset a loss of margin.

The Minister sued ITM on the basis of Article L. 442-6, I, 2° (former), for attempting to cause a significant imbalance. The Paris Court of Appeal upheld the offence for five major suppliers (Colgate, Henkel, Mondelez, Johnson and Aoste) and imposed a civil fine of €2 million, while dismissing certain evidence produced by the administration.

Both parties appealed.

Significant imbalance does not imply a structural power imbalance

ITM argued that its suppliers were not economically dependent on it, which ruled out any notion of submission. According to ITM, the suppliers had powerful brands, their turnover with ITM represented a small proportion of their overall turnover and these suppliers had alternative outlets.

The Court of Cassation ruled that:

« The absence of asymmetry in the respective economic power of the parties does not preclude the application of the provisions of Article L. 442-6, I, 2° of the Commercial Code. « 

In other words, the text does not aim to punish a state of dependence, but rather a behaviour. An attempt at submission may exist even between economically powerful partners, when one imposes or attempts to impose obligations that create a contractual imbalance.

An overall assessment that may focus on a key moment in the relationship

ITM also criticised the Court of Appeal for conducting a ‘term-by-term’ analysis, focusing on the discounts requested and the absence of consideration, without examining the overall economics of the relationship or the positive results of the suppliers.

However, the Court validated the approach taken. It noted that the dispute did not concern the balance of the initial annual agreements, but rather a unilateral action plan, which by its nature was intended to upset the balance resulting from the annual negotiations.

It thus approved the analysis that:

‘The assessment of significant imbalance can be reduced to a comparison of the discounts requested and the quid pro quo offered, the absence or derisory nature of the latter implying in itself a significant imbalance.’

The Court also emphasised that the disputed practice tended to allow the distributor to:

‘unilaterally modify or attempt to modify, at its discretion, the agreements resulting from the annual negotiations, for no other reason than the pursuit of greater profitability, a discretionary power that would undermine the entire commercial relationship.’

In this context, the subsequent economic effects, such as increased purchase volumes or positive results for suppliers, are deemed irrelevant.

Administrative investigation: no automatic exclusion of minutes

However, the Court partially overturned the Court of Appeal’s decision to exclude several hearing minutes.

The Court of Appeal had excluded from the proceedings several hearing reports containing, in particular, confessions.

The Court reiterated the strict framework of Article L. 450-3 of the Commercial Code. Agents do not have general powers of hearing and cannot seek confessions.

« The agents referred to in Article L. 450-1 of the same code may require the disclosure of books, invoices and other professional documents and obtain or take copies of these documents by any means and on any medium. They may also collect, on site or by summons, any information, document or justification necessary for the inspection.

These provisions do not confer on officers a general power of interrogation and must be aimed at obtaining information voluntarily and not at obtaining a confession. ‘

However, the Court specifies that the alleged irregularities only lead to the exclusion of evidence on one condition:

’Evidence gathered in violation of these provisions may only be excluded from the proceedings if it infringes on the rights of the accused. ‘

However, in this case, the Court of Appeal merely noted the sometimes “tense” or ’self-incriminating‘ nature of the questions, without specifically investigating ’the existence, for each piece of evidence excluded, of self-incriminating statements in the answers given to the officers during the interviews« .

In the absence of an actual infringement, the exclusion of the minutes was censured, resulting in the quashing of the provision limiting the number of suppliers affected by the conviction.

This decision therefore confirms a demanding approach towards large retailers, with effective control against attempts to circumvent annual negotiations in order to impose illegitimate renegotiations during the year.

By Olivier Vibert

Attorney at the Paris bar association