Paris Court of Appeal, Pôle 5 - chamber 5, 7 January 2021, no. 18/17376

Restrictive practice of competition and significant imbalance in the rights and obligations of the parties : an agreement of proof stipulating that only the supplier's information system is authentic between the parties is declared unenforceable.

A distance selling company had entered into an agreement with La Poste several contracts, including general terms and conditions of sale, for the delivery of parcels to its customers. Following delays, the company summoned La Poste before the Paris Commercial Court, in particular for failure to comply with guaranteed deadlines. Her claims were dismissed and she appealed.

The appellant argued that clauses relating to evidence created a significant imbalance in the rights and obligations of the parties and should be declared unenforceable. The application was based on Article L.442-6I, 2° of the French Commercial Code (now L.442-1,I,2° of the same code), which states that ". shall render the person responsible liable and obliged to make good any damage caused by (...) subjecting or attempting to subject a trading partner to obligations which create a significant imbalance in the parties' rights and obligations"

The Court of Appeal began by pointing out that " the existence of a contract of adhesion is not sufficient to characterise proof of lack of real bargaining power "and considered that submission or attempted submission can be deduced from the demonstration of " the absence of effective negotiation, or the use of threats or retaliatory measures aimed at forcing acceptance implying this absence of effective negotiation ".

The effective impossibility of negotiation is inferred from :

• " clauses [] are virtually identical in all contracts entered into by the client company and are found in all contracts entered into by companies with La Poste " ;
• " the power of La Poste in the parcel delivery sector ".

The Court went on to point out that where there are obligations that create a significant imbalance, " the proof must be provided by the party claiming to be the victim ". This imbalance can be deduced from a total absence of reciprocity or consideration for an obligation, or a significant disproportion between the parties' respective obligations ". The Court stated that " the clauses are assessed in their context, with regard to the overall structure of the contractual relationship ".

In this case, the disputed clauses stipulated that ". the various information supplied by the company's information system La Poste from the flashing of parcels, by La Posteduring the various stages of routing [...] shall be taken as evidence between the Parties to determine whether or not a delay has occurred. ".

The Court of Appeal noted that the " La Poste's information system prevails over any other evidence [...]". even though " [...] its contractual liability [...]. ". These clauses " make the starting point of the delivery time for a parcel depend exclusively on its registration in the company's information system. La Poste even though La Poste undertakes to respect minimum delivery times ". The Court of Appeal ruled that if " if such a probationary system were accepted, the result would be that the party responsible for the obligations of punctuality and delivery of parcels would be the only one to monitor compliance with its own obligations. ".

The Court concluded that these clauses " create a significant imbalance in the rights and obligations of the parties without the company La Poste provides evidence that the imbalance has been offset by other terms of the contract ". In this regard, the Court noted that " the large-scale processing of parcel distribution and the control of the costs involved in this type of processing cannot justify the sole use of the information system enabling such processing as evidence ".

The Court of Appeal therefore declared the disputed clauses unenforceable against the client company.