Legislative and case law developments for “Dark stores” and “Dark kitchens

– Conseil d’État – 6th and 5th joint chambers – March 23, 2023 – no. 468360 ;

– Order n°TREL2233598A of March 22, 2023 modifying the definition of building sub-destinations that can be regulated in local urban plans or documents in lieu thereof ;

– Decree no. 2023-195 of March 22, 2023.

At the end of March 2023, the Conseil d’Etat and the regulatory authority put an end to the legal uncertainty surrounding the activities of “Dark stores” and “Dark kitchens” that appeared in urban centers following the Covid 19 epidemic: these activities, without the presence of consumers, are now classified as destinations and sub-destinations of non-commercial buildings that can be regulated by local town planning schemes. Translated with www.DeepL.com/Translator (free version)

After first appearing in the United States in the 2010s, the “Dark stores” and “Dark kitchens” businesses expanded rapidly in France following the Covid 19 pandemic, which turned consumer habits upside down.

Dark Stores and Dark Kitchens are based on a common concept: the preparation of orders (for ready-to-deliver products in the case of Dark Stores, and for ready-to-serve meals in the case of Dark Kitchens) placed by the consumer, who doesn’t have to go out to collect them, but has them delivered directly to him or her, very often by delivery drivers on two wheels.

In other words, the companies operating these two activities do not receive customers on their premises, which are merely a storage space for Dark Stores or a kitchen laboratory for Dark Kitchens.

Faced with the emergence of these new activities in the French capital, and the controversy they have aroused, Paris City Council has taken up the issue of the authorization of one of these activities: in June 2022, it served formal notice on two companies in the sector, Frichti and Gorillas, to restore to their original state nine premises they occupied on the first floor of buildings for their activity of Dark Stores.

The Paris City Council considered that Dark Stores’ activity constituted a change of use of premises previously operated as “shops and service activities” within the meaning of article R. 151-27 of the French urban planning code, insofar as the companies were merely stocking products awaiting delivery, even though the city’s local urban planning plan (PLU) stipulated that “The conversion of existing ground-floor premises into warehouses is prohibited.

As a result, the Paris City Council accused the companies of failing to file a prior declaration of change of use for the properties in which Dark Stores operated.

The two companies having challenged these decisions and obtained their annulment by the Administrative Court, the matter was referred to the Conseil d’Etat by the Paris City Council to settle the debate as to the destination of the property in which a Dark Stores business is located, between the two destinations and sub-destinations provided for by articles R 151-27 and R 151-28 of the Urban Planning Code: does this business come under :

(i) a “commerce and service activities” destination (sub-destinations: craft and retail trade, restaurants, wholesale trade, service activities where customers are received, cinema, hotels, other tourist accommodation) or

(ii) “Other secondary or tertiary sector activities” (sub-uses: industry, warehouse, office, convention and exhibition center)?

In a decision dated March 23, 2023, the Conseil d’Etat ruled that Dark Stores’ business was a “warehouse” on the grounds that :

“The documents in the file show that the premises occupied by Frichti and Gorillas Technologies France, which were originally used for commercial purposes, are now used for the reception and occasional storage of goods, to enable rapid delivery to customers by delivery personnel on bicycles. They are no longer […] premises “intended for the presentation and sale of goods directly to customers” and, even if pick-up points can be set up there, they must be considered as warehouses. […]. The occupation of these premises by Frichti and Gorillas Technologies France to carry on the activities in question therefore constitutes a change of use subject […] to prior declaration. The City of Paris was therefore entitled to require the applicant companies to file a prior declaration. ”

“[…] the purpose of Frichti and Gorillas […] occupying the premises is to store and repackage products not intended for sale to private individuals on these premises, which corresponds to an activity falling under the “Warehouse” destination”.

It is interesting to note that one day before the Conseil d’Etat’s decision (coincidence?), a ministerial decree dated March 22, 2023 defined the sub-destination of Entrepôt : “The “warehouse” sub-destination covers buildings intended for logistics, storage or warehousing of goods without a sales area, permanent delivery points or delivery and collection points for retail purchases ordered by telematic means […]”.

With the extension of the concept of warehouse, the law and jurisprudence have given a legal framework to Dark Stores by integrating them into the warehouse destination, which consequently obliges lessors or operators of goodwill of this type of activity to file a declaration of change of destination of the premises.

Failure to declare a Dark Store prior to its launch will constitute an infringement that mayors will be able to use to enjoin operators to restore the premises to their original use (most often as retail premises), subject to a fine. It should be noted that certain PLUs (such as that of Paris) prohibit the conversion of retail premises into warehouses.

As far as Dark Kitchens are concerned, the analysis carried out for Dark Stores and the Conseil d’Etat’s reasoning for including them in the warehouse sub-destination were not necessary.

The aforementioned ministerial decree of March 22, 2023 created a sub-destination within the destination “other activities in the secondary or tertiary sectors” (which becomes “other activities in the primary, secondary or tertiary sectors”) specifically for Dark Kitchens and different from that for warehouses: the “kitchen dedicated to online sales” sub-destination.

The decree specifies that “the sub-destination ‘kitchen dedicated to online sales’ is to be defined as follows covers buildings intended for the preparation of meals ordered by telematic means. These orders are either delivered to the customer or picked up on site. “.

Thus, the absence of a customer reception area distinguishes the Dark Kitchens activity, which corresponds to a kitchen laboratory where only the dishes are prepared without direct access to customers and delivered by a third party, from the catering activity, which is considered to be commercial.

In fact, according to the aforementioned ministerial decree of March 22, 2023, the “catering” sub-destination “covers buildings intended for on-site or takeaway catering with customer reception”.

As a result, Dark Kitchens operators, like Dark Stores operators, will have to file a declaration of change of use for premises previously used for commercial purposes.

It should be noted that in Paris, unlike Dark Stores, Dark Kitchens are not covered by the PLU’s ban on converting commercial premises into warehouses, insofar as they fall under an autonomous sub-destination, unless an amendment to the PLU takes note of the creation of this new category, which will come into force on July 1, 2023…

Consequently, the creation of a sub-destination for buildings housing Dark Kitchens and the categorization of Dark Stores in the warehouse sub-destination (which classifies these two activities as non-commercial destinations) will necessarily have an impact in the future on commercial leases and goodwill operated for these activities, due to the establishment constraints that may be dictated by the PLU of each locality.

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