Dark stores: last opportunities to seize!

The rise of quick commerce

Since the beginning of 2020, new fast food delivery services – the so-called quick commerce – have multiplied in the streets of several major French cities, accompanied by their - now traditional - delivery drivers and dark stores.

Dark stores are to quick commerce what dark kitchens are to their big sister, the delivery of meals by companies such as Just Eat, Uber Eats or Deliveroo. Dark kitchens are kitchens that are not intended to receive customers because their organisation is geared towards quick delivery. Dark stores are premises in which customer orders are prepared. In order to allow for rapid delivery - in 10 to 15 minutes - these premises are generally located in the delivery service area, i.e. in the heart of large cities such as Paris, Lyon or Bordeaux.

The boom in this activity is not only due to the low interest rate policy of central banks, which has enabled many investors to finance increasingly disruptive activities. It can also be explained, in a context of health crisis, by the adoption of new living and working habits by city dwellers. More inclined to telework, often juggling shifting schedules and multiple contradictory constraints, many are adept at placing quick online orders via ergonomic applications.

As is often the case with activities such as those carried out by start-ups, the legal framework applicable to the premises in which quick commerce is carried out does not appear to be entirely appropriate. With regard to town planning law in particular, it is not always easy to determine the purpose of dark stores.

The building purpose’s issue

As a reminder, the former article R. 123-9 of the urban planning code provided that the local urban plan (the "PLU") could set the requirements applicable to buildings according to their purpose. Among the 9 contemplated purposes were in particular trade, craft industry or warehouse.

These rules have been modified by decree following the entry into force of law no. 2014-366 of 24 March 2013 for access to housing and renovated urban planning (known as "ALUR law"). Thus, 5 purposes, broken down into 21 sub-purposes, have been substituted for the 9 previous purposes. The purposes relevant to dark stores are likely to be the following: "shops and service activities" and "other activities in the secondary or tertiary sectors", in accordance with the provisions of articles R. 151-27 and R. 151-28 of the urban planning code. A decree dated 10 November 2016 defines these purposes and sub-purposes for the sake of harmonisation.

• "Trade and service activities" includes in particular the sub-purpose "craft and retail trade", which covers commercial constructions intended for the presentation and sale of goods directly to a clientele as well as craft constructions intended mainly for the sale of goods or services.

• "Other activities of the secondary and tertiary sectors" includes in particular the sub-purpose "warehouse", which covers constructions intended for the storage of goods or for logistics.

Quick commerce companies face the problem to ensure that the purpose of the premises occupied by their dark stores is consistent with the nature of their activity.

Some PLUs still apply the old purposes; they are said not to have been "alurisés" (as in "loi ALUR"). Paris is concerned, although this situation remains transitory. In this case, it is possible to question the applicability of the new purposes and sub-purposes.

Trade or warehouse?

On reading the definitions set out above, one could consider that dark stores are simple warehouses intended for the storage of foodstuffs distributed by deliverymen in less than 10 to 15 minutes after the consumer's order has been registered on the appropriate application.

This is what the Government concludes in a fact sheet entitled "Dark stores regulation methods" published last month. However not all dark stores occupy premises corresponding to this purpose.

Beyond the ‘warehouse’ purpose, dark stores can also correspond to the "trade and service activities" purpose and to the "craft and retail trade" sub-purpose, depending on their characteristics. This may in particular be the case when the premises allow the reception of customers, in particular for the withdrawal of purchases. In this hypothesis and despite the anglicism defining it, the dark store corresponds to a traditional grocery shop, with the addition of design and marketing 2.0 (or 3.0).

This evolution of dark stores could be an answer to the local residents and some local authorities’ criticism, who would rather see attractive shop window open to the outside instead of opaque façade. It is also not totally unprecedented insofar as quick commerce operators have often developed an ancillary activity of withdrawal of purchases, particularly through the Too Good Too Go anti-waste application.

Risks and opportunities

The requirements - and therefore the risks - may vary depending on each location as well as the specificity of each quick commerce. This analysis is a starting point to be adapted on a case-by-case basis.

The main risks lie in the criminal penalties (offence giving rise to a fine, regularisation or demolition of the dark store) but also in the administrative penalties (formal notice to regularise, under penalty, any lack of conformity) likely to be applied in the event of premises failing to comply with the requirements of their purpose.

In this respect, the current offensive launched by few municipalities against several quick commerce companies highlights the high level of risk currently weighing on this activity, and the need for these companies to rapidly define either a compliance strategy or a litigation strategy. It should be remembered, for example, that the Paris municipality has implemented an online ‘dark store reporting form’ for the use of its citizens.

This recourse to a "citizen" reporting also highlights the need for dark store companies to include in their strategy a section relating to the acceptance by local residents of their premises, all the more crucial since the return to " friendliness" in town centers is in tune with the times.

Quick commerce companies would therefore benefit from anticipating the opening of their premises to the public. Anticipating this constraint would allow them to define their own modalities (opening hours, completion on time of the required works) and to reduce the costs of the project (accelerated installation, reduced conflict).

The current context, although hostile in some municipalities, seems to be favourable to the implementation of these changes. As is clear from the fact sheet issued by the Government (which is not binding on the municipalities), the time has come for local consultation and the organisation of a "transition period" to enable quick commerce companies to comply with the regulations.

There is little doubt that the above is only a step in the legal framework applicable to an activity that is likely to evolve rapidly, or even to become concentrated, given the number of operators on the market.