Anne-Cécile Martin

An interesting decision rendered by the Paris Court of Appeal on June 29, 2022 reminds us of the virtues (and vices?) of good "contractual engineering". In this case, several companies of a group, respectively franchisor, central purchasing agency and lessor of goodwill, had entered into (...)

Of note this quarter was a decision rendered by the Rennes Court of Rennes Court of Appeal regarding a commercial agent contract, in which the judges reconsidered the assessment of the on the assessment of the agent’s negotiating power and on the consequences of the termination of the (...)

In a context marked by the entry into force on June 1, 2022 of the new 2022, the new block exemption regulation for vertical agreements for vertical agreements (EU Regulation No. 2022/720: see Ph. Vanni, see above), a decision by the Paris Court of Appeal on the of Paris on the treatment of (...)

In three rulings handed down on the same day, concerning refusals to approve former approved distributors by suppliers of selective automotive distribution networks, the French Supreme Court confirmed that the supplier of a selective distribution network is not obliged to approve all (...)

A franchisee in the car wash sector challenged the validity of a clause prohibiting him, without time limit, from using the colors blue and white after the termination of his franchise agreement in 2008. On appeal, the disputed clause was deemed unwritten on the basis of article L. 341-2 C. (...)

The question of payment by the commercial agent for the provision of a customer file by the principal at the beginning of the contract may be a contractual concern for drafters of commercial agency contracts. It is not uncommon, in fact, for the principal to transmit a list of clients to his (...)

The representation by the commercial agent of a company competing with that of his principal during the commercial agency contract is the subject of a classic and recurrent dispute, about which a decision rendered by the Court of Cassation last quarter is worth noting (see N. Mathey, Contrats (...)

The question of the coherence of the franchise network and especially that of the prices charged by the network’s retailers is posed with renewed acuity in a context of online sales. The transparency that the Internet allows and the resulting omniscience for the consumer and, more broadly, the (...)

In a decision handed down on May 27, 2021, the French Civil Supreme Court confirms its position concerning the impossibility for the supplier to obtain reimbursement of the sums that remunerated the services performed by the legal entity distributor in execution of the distribution contract, (...)

In a decision rendered on March 17, 2021, the Paris Court of Appeal returned to the delicate issue of the obligation to enable its distributors to charge competitive prices. The case, which is reminiscent of the famous Huard decision (Cass. com. Nov. 3, 1992, No. 90-18547), opposed a supplier (...)

In a landmark decision, the Competition Authority sanctioned a supplier of premium teas for imposing online resale prices on its distributors. Relatively classic in this respect, the decision is less so with regard to the failure to pursue the cartel grievance for prohibiting online resale by (...)

According to a decision of 4 June 2020, the Court of Justice of the European Union had adopted a broader concept of the commercial agent’s bargaining power (V. CJEU, 4 June 2020 No. C-828-18, Concurrences 2020-3, p. 107, note N. Ferrier) in order, in particular, to prevent an excessively (...)

The qualification of a commercial agent contract remains at the heart of current case law, as evidenced by a decision of the Colmar Court of Appeal handed down on 19 August 2020 (see note S. Bréna, Lettre de la distribution, Sept. 2020). One recalls, of course, the recent decision of 4 June (...)

A franchise agreement had been unilaterally terminated prior to its term by the franchisee who had transferred his business. The transferee of the business had in this case not wished the franchise agreement to be transferred to him. The franchisor had then claimed compensation for early (...)

The dispute over the legality of refusing to approve distributors within selective distribution networks is not drying up, as shown by an interesting decision handed down on 24 June 2020 by the Paris Court of Appeal. The facts of this case are classic. The promoter of a selective (...)

This In Memoriam pays tribute to Professor Didier Ferrier. On January 5, 2020, Professor Didier Ferrier passed away. He was one of the fathers of distribution law. He was also its watchdog. His exceptional career bears witness to this. It’s not just the university professorship he held for (...)

The consequences of the application of the status of branch manager to the benefit of the representative, a natural person, of a legal person bound by a distribution contract have not finished being written about. As a reminder, under the terms of Article L. 7321-2 of the Labour Code, the (...)

This quarter’s case-law news programme includes the continuation of the "Stihl case". The time for an epilogue has not yet come since the decision handed down by the Paris Court of Appeal on 17 October 2019 has been appealed to the Court of Cassation. For the record, the Competition (...)

By a decision of August 30, 2019 rendered on referral after cassation (Cass. com., May 16, 2018, appeal No. 16-20.040, Concurrences No. 3-2018, obs. A.-C M. p. 110), the Paris Court of Appeal rules again on the liability action brought by a well-known supplier of cosmetic products against an (...)

The vigilance of the competition authorities with regard to online sales restrictions in selective distribution networks is not weakening. This quarter, the Competition Authority sanctioned the promoter of a selective distribution network for top-of-the-range cycles for having prohibited its (...)

While the collective dimension of distribution networks is an undeniable asset for the development of omnicanality, the legal independence of distributors can be a source of questioning especially through the prism of "unfair commercial practices law" (new title of Chapter II of Title IV of (...)

A commercial agent complained of various breaches by his principal and sued him in order to obtain, inter alia, the judicial termination of his contract and compensation for various damages. He complained in particular about a discount policy practised by the principal with respect to, among (...)

By a decision rendered on October 24, 2018In a case involving a selective distribution network in the motorcycle equipment sector, the Competition Authority had sanctioned the promoter of a selective distribution network in the motorcycle equipment sector for having - by requiring the (...)

The regime for regulating online sales on the websites of distributors who are members of a selective distribution network and those via third-party platforms is gradually being built up. For the record, the Court of Justice of the European Union had accepted the possibility of prohibiting (...)

A telephone subscription distribution company, represented by its manager, had entered into a distribution agreement with a telephone company. The contract had not been renewed at the end of its term. The manager of the distribution company had claimed and obtained the application, in his (...)

The issue of the supervision of online sales and more specifically those made via platforms remains at the heart of the jurisprudential news. According to a decision handed down on July 13, 2018, the Paris Court of Appeal confirmed (CJEU, 6 Dec. 2017, Coty Germany v. Parfümerie Akzente, case (...)

In two different cases, the promoter of a well-known selective distribution network for branded luxury cosmetics and perfumery products had sought an injunction to cease their activities and to obtain compensation for damages against an internet site and a market place where he had found that (...)

In a groundbreaking decision handed down on May 3, 2018, the French Supreme Court of Appeal revisits the issue of the validity of preference (or priority) clauses stipulated in favor of the promoter of a distribution network - in this case franchised - in the event of a sale of the business by (...)

In line with the decision handed down by the Court of Justice of the European Union last December (Cf. 6 Dec. 2017, case C-230/16, obs. A.-C. Martin, Concurrences n° 1-2018), the Paris Court of Appeal considers that the limitation on the use of third party platforms does not constitute a (...)

In the area of franchising and, more broadly, distribution networks, the Court of Cassation has also ruled that the network as an "economic entity" is not liable for civil liability. In this case, the promoter of a franchise network had sued several of its competitors for acts of unfair (...)

The decision, which was eagerly awaited, marks an important step in the recognition by competition law of the importance of protecting selective distribution networks from selling behaviour on the Internet which is perceived as parasitic. Unsurprisingly (cf. Cass com., 13 Sept. 2017, Caudalie (...)

A franchisee operating a do-it-yourself store had become aware of a decision by the Commission départementale d’aménagement commercial (CDAC) authorising the creation of a major shopping centre, including a competing do-it-yourself store, in the immediate vicinity of its own. He had informed (...)

The Court of Cassation has approved the decision of the trial judges to have annulled a management lease contract on the grounds that the exemption from personal use of the business, which had been granted by the lessor because of the state of health of the manager of the tenant company, had (...)

The question of the freedom of selection of members of a selective distribution network is still under discussion. It is, in fact, in a jurisprudential context (Cf. CA Paris, 19 Oct. 2016, obs. N. Eréséo Cass. com. 21 June 2016, No. 15-10438, obs. D. Ferrier obs. N. Eréséo, Lettre de la (...)

Selective distribution: the law of obligations to the rescue of the rejected distributor!* The issue of the freedom to select members of a selective distribution network has not finished spilling ink. It is, indeed, in a jurisprudential context (cf. CA Paris, 19 Oct. 2016, Concurrences (...)

Compensation for victims of anti-competitive practices: the emergence of a special law of liability for anti-competitive practices?* The efficiency of procedures is a central concern of anti-competitive practices law and more broadly of competition law (cf. A.-C. Martin, "Les procédures du (...)

Ratification law of the ordinance to recast the Consumer Code: final adjustments to the law ... ?* On 21 February 2017 (L. n°2017-203), Parliament ratified the ordinance recasting the legislative part of the Consumer Code (Ord. n°2016-301 of 14 March 2016) in force since 1 July 2016 (for the (...)

It is now generally accepted that the legal independence of companies is not such as to prevent the recognition of a reclassification group, the relevant criterion being that of staff rotation. It now seems equally classical - even if questionable - to consider that the activity under a (...)

The company Concurrence - which is active in the retail sale of electronic products intended for the general public through a store located in Paris and an online sales website called "concurrence.fr" - is constantly fuelling litigation over the prohibition of resales via marketplaces, in (...)

Prior to the signing of the franchise agreement, the franchisor must communicate to the prospective franchisee information intended to enable him to join the network with full knowledge of the facts (art. L. 330-3 C. com.). After the conclusion of the contract, the franchisor must still (...)

The co-manager of a mini-mart had sued the distributor for compensation, alleging that the distributor had wrongfully breached its co-management contract and failed to fulfil its reclassification obligation and that it had not paid the distributor any financial compensation under the (...)

Unlike the concession contract, territorial exclusivity is not the essence of the franchise contract. It can, however, become one. Case law considers that such exclusivity must be granted when it is necessary for the commercial success of the franchisee (cf. Cass. com. 28 Jan. 1980, JCP G. (...)

In the current events of this quarter, we will again note a decision of the Commercial Chamber of the Court of Cassation of 20 September 2016 (cf. Letter of the distribution Oct. 2016, p. 5, obs. K. Biancone) concerning the effectiveness of pre-emption clauses in franchise networks. These (...)

Litigation over the application of employment law provisions to non-employee distributors is steadily increasing. This quarter’s jurisprudential news is further evidenced by decisions relating to the application of the status of branch manager to tenant managers (Cass. soc. 14 Apr. 2016, 2 (...)

Because it stands at the crossroads of other rights, distribution law is likely to be affected by reforms which, at first glance, do not concern it directly. The Labour Act of 8 August 2016 (known as "El Khomri") is an illustration of this. Its Article 64 provides, under certain conditions, (...)

The digital transition is definitely not sparing selective distribution networks. As proof, the question of their protection against the perceived parasitic behaviour of online sales platforms continues to feed the lines of this column. The Coty international group’s distribution network is (...)

The evolution of the know-how and identification elements of the franchise network during the course of the contract always raises many questions. A decision of the Paris Court of Appeal is worth noting as it provides an interesting illustration. In this case, a franchisor had decided to (...)

The integration achieved by the management lease contract (see above CA Rennes, 10 May 2016, p. 3) is a further illustration of this.) exposes the network, considered as a group, to the application of certain provisions of social law. This movement of application of social law to the (...)

The management lease contract - by which the owner or operator of a business grants a lease to a manager who operates it at his own risk - enables the promoter of a distribution network to organise integrated distribution while using independent traders. However, in order to ensure that the (...)

A decision of the Paris Court of Appeal concerning a request for the reclassification of a contract for the management of a business (art. L. 146-1 C. com.) as a contract of employment should be noted, not for the solution it provides but for the solution it does not provide. In the present (...)

The Internet is "a powerful tool to reach a greater number and variety of customers than through more traditional sales methods alone" (cf. Guidelines accompanying Regulation 330/2010, pt. 52). This explains why the Competition Authorities welcome it very favourably and are vigilantly (...)

From the point of view of competition law, the selective distribution contract constitutes a cartel only if the stipulated selection criteria and their implementation have the object or effect of restricting competition on the market. This is not the case where the criteria meet a "legitimate (...)

The franchisor - like any person who makes a trade name, trademark or sign available to another person, requiring him to give an exclusive or quasi-exclusive undertaking for the exercise of his activity - must provide any prospective franchisee with information enabling him to make an informed (...)

If the content of the pre-contractual information transmitted by the franchisor is crucial to enable the franchisee to make an informed commitment (cf. supra, Cass. com. 5 Jan. 2016), the conclusion of the agreement creates an obligation of assistance on the part of the franchisor for the (...)

An employer who dismisses an employee for economic reasons or incapacity is required to seek a reclassification post in the enterprise and, where appropriate, in the "group" to which the enterprise belongs (arts. L. 1233-4 and L. 1226-2 C. trav.). In the present case, the employee of a (...)

From the point of view of competition law, the selective distribution network constitutes an agreement between the promoter of the network and the distributors it has selected. Regulation 330/2010 defines it as "a distribution system in which the supplier undertakes to sell the goods or (...)

Article L. 7321-2 C. trav. is increasingly invoked by independent distributors wishing to benefit from the protective provisions of social law. Two decisions specifying the conditions (sale of goods supplied exclusively or almost exclusively by a single company in premises supplied or (...)

The protective arrangements for commercial agency allow agents to receive an end-of-contract indemnity to compensate for the loss suffered as a result of the termination of relations with their principal. This so-called termination indemnity is a matter of public policy (cf. L. 134-12 c. com. (...)

Following the termination of his management lease by the lessor, the manager of a service station had sought the application of the status of branch manager (Art. L. 7321-2 C. trav.) in order to obtain payment of various sums. In particular, he argued that he was not free to determine his (...)

Labour law is constantly interfering in franchise law and, more broadly, in distribution law. Alongside the now classic litigation concerning the reclassification of franchise contracts as employment contracts or the application of the provisions of Article L. 7321-2 of the Labour Code to (...)

If the commercial agent is entitled to an indemnity in the event of termination of his contract, it does not have to be paid by the principal when the termination of the agency contract is justified by the commercial agent’s serious fault (art. L. 134-13 c. com). The qualification of serious (...)

A supplier, one of whose distributors had sold some of the products supplied on his - unauthorised - site, had sued him for damages for breach of the selective distribution contract which provided that the distributor had to "contact the supplier in order to obtain his specific terms and (...)

One franchise agreement contained a post-contractual non-competition clause according to which "in the event of termination of this agreement before its term for any reason whatsoever and without prejudice to any damages resulting for the franchisor from such termination[…], the franchisee (...)

The basis of unfair competition is a now recurrent argument of network distributors wishing to obtain compensation for damage caused by third parties to the network (cf. above for low price Internet sales: Paris, 21 January 2015, note D.F.). In this respect, a decision of the Commercial (...)

A franchisee, whose profitability had proved to be much lower than the forecasts transmitted by the franchisor until his company went into receivership, had sued him for nullity of the franchise agreement for failure to comply with the pre-contractual disclosure obligation (Art. L. 330-3 c. (...)

CA Lyon, 9 December 2014, Protisfi-EMC Elyse c/ TT Immobilier, RG n° 13/09690 A franchisor had been the subject of a receivership which had resulted in a plan to sell the business to a purchaser. A franchisee was then challenging the assignment of its contract without its agreement. The (...)

CA Paris, Nov. 5, 2014, MT SP Gestion Restauration Rapide c/ Socorest, RG n° 12/13457 A franchisor had been sued by a franchisee for nullity of the franchise agreement for fraud or error. He invoked, on the one hand, unrealistic forecasts and, on the other hand, the absence in the (...)

Under the terms of Article L. 134-12 C. com. the commercial agent may claim, by reason of the common interest which colours the agency contract, an indemnity for "termination of contract" intended to compensate him for the loss which the disappearance of the contract causes him for the future. (...)

Cass. com, Nov. 4, 2014, FdG and Camargo c/ Larzul, n° 11-14.026 An exclusive supply contract provided for the possibility for a supplier of snail meat to unilaterally fix the selling price of its products in return for a commitment to make every effort to enable its customer to compete. (...)

Cass. com, 7 October 2014, Ms X. v. Bench, Appeal No. 13-23.119 CA Versailles, September 18, 2014, Panoptic c/ Lynx optique, RG n° 13/01408 In a first case, a distributor bound by a commission-affiliation contract blamed its principal for failing to submit the pre-contractual information (...)

The promoter of a distribution network can protect it against the disloyalty of its distributors by stipulating preference, non-competition or, for example, non-reaffiliation clauses in its favour. He can also protect the network against the disloyalty of third parties through the action of (...)

Cass. com, Sept. 23, 2014, John Deere v. Établissements Pinchon, No. 13-18.938 A concession contract provided that, in the event of succession of the manager of the concessionaire company, the latter was obliged to submit an "acceptable" candidate for the takeover to the grantor for approval (...)

[ Cass. com, September 23, 2014, France restauration rapide c/ Qualité service propreté, appeal no. 13-20.454 Cass. com, 23 September 2014, Carrefour and CSF v. Francap and Ségurel, appeal no. 13-22.624 Two cases are noteworthy as regards the conditions for assessing the proportionality of (...)

The Paris Court of Appeal, hearing a case brought by a franchisor alleging that its former franchisee had breached the non-affiliation clause, held that such a clause, prohibiting its reaffiliation "with a sign of national or regional renown", did not apply to reaffiliation with a sign which (...)

Labour law is constantly interfering in franchise law and, more broadly, in distribution law. Alongside the now classic litigation concerning the reclassification of franchise contracts as employment contracts or the application of the provisions of Article L. 7321-2 of the French Labour Code (...)

In a decision handed down on 3 June 2014 - which, although it does not have the honours of the Bulletin, nevertheless deserves attention - the Court of Cassation returned to the delicate question of the possibility for franchisees to avail themselves of their own clientele, distinct from that (...)

A franchisor had entered into a franchise agreement with a new franchisee under which the franchisor would not "permit the opening of other outlets under [its] name without the prior consent of the franchisee". The franchisee had complained that the franchisor was providing, in violation of (...)

CA Bordeaux, April 30, 2014, RG n° 12/06406, Bambou et compagnie c/ Les Ateliers des cotonniers The commission-affiliation contract seemed to be protected from being reclassified as a commercial agency contract (cf. Cass. com., 29 June 2010, No. 09-66.773, aff. Chattawak, supra, note 2, at (...)

Following the termination of his franchise agreement, a franchisee had sued his franchisor for nullity of the agreement for lack of elements characteristic of a franchise (know-how, technical and commercial assistance). The Rennes Court of Appeal dismissed his claims, noting "that the (...)

CA Bordeaux, March 27, 2014, RG n° 13/00013, Mrs P. c/ Rogaray Val de Loire The Bordeaux Court of Appeal accepted the claim for compensation for dismissal without real and serious cause made by a branch manager, on the ground that the evidence adduced to justify his dismissal on economic (...)

The Court of Cassation has censured, with reference to the "fundamental principle of the free exercise of a professional activity", a court of appeal that rejected a branch manager’s claim for compensation for his non-competition undertaking in the event that he did not have the status of (...)

The Paris Court of Appeal confirmed the decision of the French Competition Authority (dec. no. 12-D-23 of December 12, 2012) relating to practices implemented by Bang & Olufsen in the selective distribution of hi-fi and home cinema equipment, obs. D. Ferrier) condemning Bang & Olufsen, (...)

CA Versailles, January 30, 2014, RG n° 12/08575, Rapid’ Auto Albi c/ Speedy France In a decision handed down on 30 May 2012, the Court of Cassation (cf. Cass. com., 30 May 2012, no. 11-18.779, obs. A.-C. M.) had censured judges on the merits who had dismissed the application of a franchisor (...)

An employee had been transferred from company code A to company code B in the same group. Each of the two employment contracts successively concluded with these two companies imposed on the employee a post-contractual non-competition obligation from which he could be released by the employer (...)

A wholesaler who bought fresh fruit and vegetables to resell them to professional customers had been criminally prosecuted before the entry into force of the LMAP on the basis of Article L. 441-2-1 of the Commercial Code for having concluded 130 contracts with suppliers with discounts but (...)

In early 2013, the Competition Authority had asked for an opinion to examine the sector of urban distribution of medicinal products for human use. Last December, it published an opinion in which it made a number of observations and proposals "which form part of a coherent approach to promoting (...)

ADLC, 18 September 2012, Opinion No. 12-A-20 on the Competitive Operation of Electronic Commerce In an opinion of 18 September 2012 on the "competitive functioning of electronic commerce", the Competition Authority reaffirms its desire to see online sales develop freely. Without waiting (...)

Cass. civ. 2, 7 June 2012, Grenke location v. Rubenzo car, appeal no. 11-13.105 The Court of Cassation approved a court of appeal for having, in order to declare this clause unenforceable as not being "specified in a very apparent manner", noted "that the original leasing agreement[has], on (...)

CJEU, 07.02.2013, Slovenska Sporitelna, Case C-68/12 A bank that had been convicted of a cartel by a national competition authority contested the amount of the fine on the grounds, firstly, that the cartel did not infringe the competition rules since the "victim" was a company operating (...)

The validity and conditions of implementation of the clauses limiting the possibility for distributors to change brands at the end of the contract raise a number of questions. From a competition point of view - whether it concerns pre-emption rights or preferential rights for the benefit of (...)

A franchisor which had granted territorial exclusivity to one of its franchisees had, after having been integrated into a group of companies, allowed a store under another name of the group to be established in its exclusive territory. The franchisee had sued the franchisor for breach of the (...)

Cass. com, 22.10. 2013, Co Motoworld c / Moto PC, dec. no. 12-22.281 An "exclusive concessionaire" accused a "off-network" reseller, who was competing with him, of acts of unfair competition and the "licensor" of not "sealing the network". On the first grievance, the Court of Cassation (...)

The question of the breach of distribution contracts is nowadays dealt with more from the point of view of practices restricting competition than from that of contractual liability. Article L. 442-6, I, 5° of the Commercial Code, which penalises the fact of "abruptly terminating an (...)

A court of appeal annuls a management lease and a franchise agreement entered into concurrently on the grounds that : – in the context of the management lease, had violated Article L. 330-3 of the French Commercial Code due to the lack of pre-contractual information; – in the context of (...)

In a first case, the Court of Cassation approved a Court of Appeal which had dismissed a franchisee’s application for the nullity of the franchise agreement (concluded in 2003) for failure to comply with the pre-contractual disclosure requirement of Article L. 330-3 of the Commercial Code, (...)

A franchisee who had failed to regularise a commercial lease within the time limit set out in the franchise agreement took advantage of the ambiguity of the agreement to request its termination and, consequently, the return of the sum paid to the franchisor as a deposit on the entrance fee. (...)

One franchisor had granted a territorial exclusivity to its franchisee, "in order to] guarantee [him in terms of clientele an area of sufficient attractiveness in relation to the concept". The franchisor had opened an Internet site for the sale of its products and had distributed catalogues (...)

An exclusive concessionaire had wished to relocate its point of sale from the city centre to the outskirts to achieve its objectives. When the grantor objected, the concessionaire then sued the concessionaire, inter alia, for wrongful refusal. A court of appeal ruled out any abuse on the (...)

Article L. 330-3 of the Commercial Code obliges the franchisor to transmit a pre-contractual disclosure document to the prospective franchisee. If the provisional accounts are not part of the information to be included in the document, they must nevertheless - if they are communicated (...)

If the projected accounts are not included in the information to be included in the pre-contractual disclosure document to be submitted by the franchisor to the prospective franchisee (pursuant to Article L. 330-3 of the Commercial Code), the state and development prospects of the market (...)

The issue of the legal treatment of online sales and, incidentally, the delicate classification of e-shops is now classically illustrated by the prohibition on the promoters of distribution networks to prohibit, in an absolute manner, passive resales by their distributors from their own online (...)

CA Douai, 24 January 2013, LEHOUCQ c/ Mr and Mrs X, RG 11/06247 The question of the scope and application of Articles L. 330-1 and L. 330-3 of the French Commercial Code is the subject of a decision by the Court of Appeal this quarter which deserves attention because of the contractual (...)

CA Besançon, 9 January 2013, Euro Distri Baby v/ Smoby Toys, RG 11/02515 The Besançon Court of Appeal rejected the application of a commercial agent who claimed that his contract had continued with the purchaser appointed by the Commercial Court of Lons Le Saunier on the terms previously (...)

Cass. soc., 9 January 2013, Distribution Casino France, n° 11-26.418 The Court of Cassation censured the Court of Appeal of Aix-en-Provence for having dismissed a former branch manager who claimed compensation from the retail chain that had entrusted him with the management of a store, (...)

CA Aix-en-Provence, 10 January 2013, Comme Ulysse, RG 11/14007 The Court of Appeal of Aix-en-Provence granted the request of a franchisee to have his franchise agreement cancelled because he was unable to operate his business on a permanent basis without having received sufficient and (...)

CA Montpellier, 11 December 2012, Caplau c/ France Boissons Languedoc, RG 11/05139 Ruling on referral after cassation, the Montpellier Court of Appeal again rejected a distributor’s claim for breach by the supplier of the clause guaranteeing that the price of the supply would be "that (...)

Following a franchisee’s decision to terminate the franchise agreement early, a franchisor had filed a summary judgment against him to force him to continue the agreement until the end of its term and prevent the removal of the sign and the transition to competition. A court of appeal had (...)

The promise of repeated commercial success is a fundamental element of the franchise agreement. The franchisor must provide its franchisee with the means of success it proposes and control its development. The franchisor is therefore responsible to his franchisees when he does not intervene to (...)

Cass. com, 26 March 2013, BMW / RETIF, Appeal No. 12-12685 A car manufacturer had signed an audit contract with a company wishing to join its network of authorised repairers, the purpose of which was to have the latter audited by a third party service provider in order to determine whether (...)

CA Douai, 19 March 2013, Mrs X. v. Christian DIOR et al, RG 10/06955 The question of the marketing of products on the Internet in a distribution network is a constant source of case law on selective distribution contracts. After the negative answer given by the Court of Justice of the (...)

CA of Montpellier, 16 October 2012, Théraform c/ M. X, RG n° 11/°1745 The assessment of the validity and regime of post-contractual non-competition clauses with regard to their purpose is, in several respects, at the forefront of the case law. If unjust enrichment cannot lead to any (...)

The issue of compensation for independent distributors at the end of a contract is again in the forefront of the legal scene this quarter. In two decisions handed down on the same day, the Court of Cassation denied independent distributors the possibility of obtaining compensation for loss of (...)

CA Paris, 31 January 2013, Sté Pierre Fabre Dermo-Cosmétique, RG 08/23812 In a decision dated January 31, 2013, the Paris Court of Appeal finally handed down its "verdict" in the now famous Pierre Fabre case (to our knowledge at the time of writing, no appeal to the Supreme Court had been (...)

CA Paris, 27.06.12, News Parfums c/ Parfums Christian Dior, Guerlain and LVMH Frangrance Brands, RG n°10-04245 In the wake of the publication by the Competition Authority of its long-awaited opinion on the competitive functioning of e-commerce Aut[. Conc. opinion No. 12-A-20 of 18 September (...)

Cass. com, 10.07.12, Alimentation Gouardère Lafitte Aquitaine c/ CSF, n° 11-22.301 The question of the franchisee’s exit from the distribution network remains a central issue in franchise law. Most often in this case, either the franchisee wishes to leave the franchise network and his (...)

CA Paris, May 9, 2012, Waris Télécom and Mim Com c/ Orange France, RG n° 09/19381 The Paris Court of Appeal rejected the application of telephone subscription distributors whose contracts had been terminated by an operator and who claimed the benefit of the status of commercial agents, their (...)

Board of Directors Paris, May 31, 2012, Frig’Invest v. Boulenger, RG n° 11/10619 A sales agent received two types of commission, one for promoting sales of floor coverings and the other for monitoring the installation of floor coverings by his principal. The agent considered that the (...)

CA Colmar, July 17, 2012, ZR Diffusion c/ Groupe Exo TIC, RG n° 09/06006 Upon termination of his "commercial agent contract" by the principal, an agent in charge of setting up new distributors and participating in the animation of the principal’s network requested payment of the termination (...)

Cass. com, 12 June 2012, PCAS v. Markinter, No. 11-16.109. The Court of Cassation censured a court of appeal which had declared the parent company of a principal jointly and severally liable for the latter’s breaches after having noted that "the parent] company[ has constantly interfered in (...)

Cass. com, 30 May 2012, Lioser c/ ITM région parisienne, n° 1-18.024 The articles of association of a public limited company that operated a department store made the termination of the sign contract concluded with the holding company of the distribution group subject to the prior approval (...)

CA Paris, June 27, 2012, DB Services v/ France Débosselage, RG n° 11/00342 The Paris Court of Appeal granted the claim of a franchisee who wished to obtain compensation for the damage suffered as a result of the abusive breach of contract by the franchisor, noting, on the one hand, that "it (...)

CA Aix-en-Provence, 11 October 2012, Pierre Fabre Dermo Cosmetics, RG n° 11/12322 A company operating a selective distribution network had obtained in summary proceedings the cessation of Internet sales of its products by the agent of one of its selected distributors. A court of appeal (...)

Cass. com, 3 April 2002, The Bread of Plenty v. SFBC, Appeal No. 11-14.001. A franchisee who had been ordered to pay the franchisor arrears of fees had applied to the court to have the franchise agreement annulled for fraud by the franchisor. The Court of Cassation approved a Court of (...)

Cass. com, 30 May 2012, Speedy France v Rapid’auto, n° 11-18779 The validity and effectiveness of the stipulation of a non-reaffiliation clause is constantly being updated in the case law on distribution contracts. The Court of Cassation had seemed to reserve for this clause, which "merely (...)

Cass. soc., May 16, 2012, M. X... c/ Leclerc, n° 11-10712 If the assessment of the non-reaffiliation clause (cf. supraAgence commerciale : La Cour de cassation approuve une cour d’appel d’avoir annulé une clause de non-concurrence post-contractuelle stipulée dans un contrat d’agence (...)

Cass. civ. 1, 23 November 2011, Prédica, appeal no. 10-16.770 A service provider had undertaken to carry out, on behalf of a universal legatee, all the legal procedures necessary to have his rights in a succession recognized and to bear the costs, if any. The Court of Cassation censured (...)

Cass. com, 21 February 2012, Marina Europe v Bénéteau, No. 11-13653 Article L. 330-3 of the French Commercial Code is still at the heart of this quarter’s jurisprudential news. The pre-contractual obligation of information that it imposes, in the event of making available know-how, a (...)

Cass. com, January 31, 2012, Distribution Casino France v/ Asinat distribution, n° 11-10834 Contractors disappointed by the profitability of the operation they have undertaken are also, once again this quarter, at the heart of the Court of Cassation’s case law. After having censured, under (...)

Cass. com, September 20, 2011, Esso Raffinage v. Tina, No. 10-30567 In the 1990s, an oil company had concluded several fixed-term contracts with an operator for the operation of a service station under the dual system of management lease for the ancillary activities of the service station (...)

Cass. com, October 4, 2011, Mr. X... c/ Sodecob, n° 10-20956 Cass. com, October 18, 2011, Lina’s development c/ K3, n° 10-23524 The object of the franchise contract is the "reiteration" (D. Ferrier, Droit de la distribution, 5th ed. Litec, 2009, p. 302) of a commercial success: that of the (...)

Constitutional Council, 13 May 2011, QPC No. 2011-126, Société Système U The company Système U had been assigned in 2007 by the Minister of the Economy for fictitious services billed to a supplier ... It is in this context that on 8 March 2011, the Court of Cassation referred to the (...)

CJEU, Opinion of the Advocate General, 3 March 2011, Case C-439/09, Pierre Fabre Dermo-Cosmétique. The Advocate General’s conclusions on the reference for a preliminary ruling made by the Cour d’appel de Paris before the Court of Justice of the European Union in the case of Pierre Fabre (...)

Cass. com, October 15, 2010, Expédia inc, No. 10-14.888 Cons. const. 18 October 2010, No. 2010-55 QPC Cons. const. 3 December 2010, No. 2010-74 QPC Cons. const. 13 January 2011, No. 210-85 QPC With respect to anti-competitive practices, on October 15, 2010, the Cour de cassation (...)

CA Paris, September 3, 2010, eBay Inc. and eBay International AG c/ Parfum Christian Dior, Kenzo Parfums, Parfums Givenchy et Guerlain, RG n°08/12822 Facts Several promoters of selective fragrance distribution networks had assigned an electronic auction platform, finding that a significant (...)

Annual Report of the Competition Authority for 2009, Annex "Thematic Studies". Autorité de la concurrence, Opinion No. 10-A-11 of 7 June 2010 on the Conseil interprofessionnel de l’optique (Interprofessional Optics Council) Draft Guidelines on the applicability of Article 101 TFEU to (...)

Cass. civ. 1, March 25, 2010, UFC Que choisir 38, Appeal No. 09-12.678 A consumer association had assigned a distributor and installer of kitchens and bathrooms on the basis of Articles L. 421-2 and L. 421-6 of the Consumer Code, because he had the quotation drawn up before a precise survey (...)

Concordant Aut. 25 February 2010, Q&A on the protection of business secrets CA Paris, 26 January 2010, Adecco France and others v Randstad, RG n°2009/0352 Cass. com, 2 February 2010, Appeal No. 08-70.449. Cass. com, 2 February 2010, Appeal No. 08-70.450. Cass. com, 2 February 2010, (...)

Facts The managers of a company operating a household goods shop under the name of a cooperative group of independent traders had been assigned as guarantors by a bank during the compulsory liquidation of their company. They had then called in the cooperative as a guarantee, accusing it of (...)

Organic Law No. 2009-1523 of 10 December 2009 on the application of Article 61-1 of the Constitution Since the entry into force on 1 March 2010 of Organization Act No. 2009-1523 of 10 December 2009 on the application of article 61-1 of the Constitution, individuals may invoke the (...)

CA Paris, November 10, 2009, Beauté Prestige International and others, RG n° 2008/18277 Facts At the end of 1998, the Competition Council took up the competition situation in the luxury perfume distribution sector on its own initiative. It was not until four and a half years after the (...)

Commission d’examen des pratiques commerciales, activity report for 2009 The publication of the CEPC’s latest annual activity report (transmitted to the Government and Parliament pursuant to the Act of 2 August 2005) shows, once again (see the CEPC report for 2006, 2007 and 2008), in the (...)