Since January 2023, Tinguely-de La Mure is serving as jurist at the General Secretariat of the Department of Culture, Infrastructure and Human Resources of the Canton of Vaud. She previously worked at Fidal and served as a trainee in two business law firms and in the European Commission. She graduated from the Law School of the University of Paris II (Master II European litigations).
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In two decisions concerning sales representatives, the Court of Cassation reaffirms the principle that professional expenses incurred by the employee must be borne by the employer: In the first decision, the employer had deducted from the salesperson’s commissions amounts corresponding to the (...)
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In three decisions concerning the real estate sector, multi-card sales representatives requested the requalification of their part-time employment contract into a full-time employment contract, in order to benefit from the remuneration at least equal to the minimum gross salary (corresponding (...)
235
The reclassification of distribution contracts as employment contracts is a major source of litigation, particularly because of the permeability of the boundaries between distribution law and employment law. Various reasons can be invoked: in general: the difficulties encountered by (...)
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The Douai Court of Appeal ruled that the principal takes the initiative to terminate the contract by imposing on the commercial agent substantial modifications of the contract with a reduction of his geographical area, an increase in his objectives "under penalty of termination of the (...)
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The Colmar Court of Appeal, considering not only the "contractual terms" but also the conditions under which "the activity[ was] actually carried out", denied the status of commercial agent to a "provider of services in commercial matters" who merely transmitted orders "without ever being able (...)
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The commercial agency contract is not only a source of litigation at the time of its termination (on this very extensive litigation, see our obs. in previous columns), but its execution is more rarely denounced. The case judged by the Court of Cassation in a decision - published in the (...)
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A principal, having discovered that his commercial agent was selling, without his consent, trademarks competing with his own, had terminated the contract for serious misconduct, claiming a violation of Art. L. 134-3 of the Code of Civil Procedure, which requires the agent to obtain the prior (...)
234
The Court of Cassation ruled that "a probationary period could not be validly stipulated" in the sales representative’s contract concluded as an extension of a commercial agency contract when the employee’s duties had remained unchanged and he had performed them for several years so that the (...)
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Cass. com, 20 Jan. 2015, Covidien, No. 13-24.231 Could it not be considered that the person who - prior to any discussion of the terms of the contract - discusses with the prospect the very principle of the conclusion of the contract and has "levers" such as the offer of benefits in kind at (...)
201
A principal, having breached a commercial agency contract, had been sued for damages by the agent company before the latter transferred its trading activity to another company as part of a partial asset contribution. The company receiving the contribution had then wanted to pursue the action (...)
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Cass. soc. 14 Jan. 2015, Ms X. c/ EDI 40, No. 13-14.752 The Court of Cassation criticised the Pau Court of Appeal for having excluded the qualification of VRP on the basis of a clause in the employment contract authorising the employer to change the geographical sector, "whereas [the] (...)
230
Cass. soc., 14 Jan. 2015, Mrs X. v. NCH France, No. 13-16.229 The Paris Court of Appeal had dismissed a sales representative’s request for termination of the contract against the employer, pointing out that it was up to "the sales representative to justify the expenses incurred in the course (...)
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CA Amiens, 18 Dec. 2014, Alain F. c/ Thierry B., RG n° 11/00490 Recalling that "the relationship between the commercial agent and the principal shall, in accordance with the provisions of Article L. 134-4 of the Commercial Code, governed by a duty of loyalty and a reciprocal obligation to (...)
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Cass. com. Dec. 9, 2014, HCF, No. 13-23.309 The termination indemnity necessarily takes into account the loss of the right of presentation of a successor as a result of the non-transmission of the contract. The commercial agent only loses his right to compensation for termination of (...)
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Cass. com, Dec. 9, 2014, CCCP c/ SRC, No. 13-28.170 and 13-28.171 The Court of Cassation agrees with the Paris Court of Appeal that the fact of having qualified as serious misconduct making it impossible to maintain contractual relations and excluding any indemnity, the fact of : manifest (...)
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CA Caen, Dec. 4, 2014, Jean-Pierre V. c/ Patrick B., RG n° 13/02063 The Caen Court of Appeal ruled that the manager of a commercial agent company, who represents a competitor of the principal in his capacity as a sales representative without having informed the latter, commits "a serious (...)
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The Court of Cassation approved the Court of Appeal of Agen for refusing to reclassify a sales representative contract as a contract of employment, since "the employee performed the function of representative on behalf of his employer in a specific sector of activity and the essential part of (...)
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Cass. com, Nov. 25, 2014, M. X. v. La Montagne, No. 13-25.266->doc27378]; Cass. com, Dec. 9, 2014, ACE v. Duravit, No. 13-22.476 In a first case, a press trustee sued by a broadcaster for damages for wrongful termination of a mandate of common interest challenged, first, the classification (...)
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The Court of Cassation censured the Rennes Court of Appeal for having imputed the breach of a commercial agency contract to the principal on the grounds that he had substantially modified the conditions of performance of the contract by preventing the agent from maintaining contact with (...)
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An intermediary, whose task was to present and promote a company’s products, without being able to conclude a contract on behalf of the company or to change the terms and conditions of sale set by the company, claimed the status of commercial agent. In order to assert that it had bargaining (...)
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The qualification of sales representative is frequently sought by agent distributors, in particular commercial agents, seeking, upon termination of the relationship, the benefit of an even more protective status (see for example CA Bourges, 14 March 2014, RG n° 13/01121, M. S. c/ Immobilier (...)
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Cass. soc., 21 October 2014, Mr X. v. Sico, Appeal No. 13-11.929 S.C.C., 21 October 2014, Ms Y. v. Sico, Appeal No. 13-11.150 The Court of Cassation approved the Courts of Appeal of Poitiers and Bourges for having requalified as employment contracts "sales representative contracts under the (...)
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A principal refused to pay commissions to its commercial agent responsible for finding building sites and supervising their execution on the basis of the clause in the contract by which, in the event of termination of the contract during the agent’s intervention, the latter could ’in no case (...)
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A principal had terminated his commercial agency contract with a company and entrusted the assignment to a former employee of the company who had set up his own structure. The company had then assigned him in payment of severance pay. In order to avoid this payment, the principal invoked the (...)
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CA Dijon, Oct. 16, 2014, Laboratoires ACI c/ Lionel G., RG n° 13/00607 One sales representative contract stipulated a post-contractual non-competition clause, the financial compensation for which was set at ’one-sixth of the monthly remuneration’, and the breach was punished for each (...)
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The Paris Court of Appeal awarded an agent a termination indemnity after considering that the termination was not attributable to him, its decision to terminate the contract being "justified by the substantial changes in the terms of remuneration imposed by his principal" (abolition of certain (...)
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The Court of Cassation points out that "regardless of the loss of his right to a termination indemnity when he has committed a serious fault, the commercial agent is liable for any fault he may have committed towards his principal".
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A commercial agent who had been hired by a company competing with that of his former principal was accused by the latter of breaching the post-contractual non-competition undertaking prohibiting him from "carrying on the same professional activity for two years from the date of termination". (...)
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The growth of online sales is not only accompanied by an increase in disputes between suppliers and distributors, in the field of competition law (anti-competitive practices and unfair competition) and contract law (for a recent case illustrating this second hypothesis, see in the field of (...)
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The growth of online sales is accompanied by a rise in disputes between suppliers and distributors. These are frequently dealt with from the point of view of competition law: that it protects the market (law on anti-competitive practices): competition authorities consider that limitations on (...)
115
A company had dismissed a sales representative for serious misconduct on the grounds that he had unknowingly accepted the representation of competing products. The Court of Cassation approved the Besançon Court of Appeal for having ruled out any serious fault making it impossible for the (...)
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A terminated sales representative to whom the judges had awarded a client allowance complained that the judges had not taken into account the fact that, since the claim for termination pay was necessarily included in the client allowance claim, the higher of the two allowances should be (...)
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The question of indemnification of the agent feeds into the dispute over the termination of the commercial agency contract, at least in the field of the agent’s right to compensation for damage arising from the loss of the right to prospect the principal’s clientele and to profit from it (art. (...)
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A principal who had terminated a commercial agency contract refused to compensate the agent for gross negligence in selling competing products in breach of the non-competition obligation in the contract. The agent had then summoned him to pay an indemnity for termination of contract. The (...)
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CA Poitiers, 27 August 2013, Barre c/ ACT Patrimoine, RG n° 12/01568 A commercial agent contract provided that "in the event of termination of the contract, the […]agent expressly refrains from representing (...) companies or consultants selling products identical to those defined [in the (...)
105
EC, 17 July 2013, Comité des constructeurs français d’automobiles, International Automobile and Motorcycle Trade Union Chamber and Conseil national des professions de l’automobile, n° 360100 The Conseil d’Etat has received an application for annulment on the grounds of excess of power of the (...)
169
CA Paris, 04.07.2013, Digicel Antilles françaises Guyane, France télécom and Orange Caraïbe / Outremer Télécom, RG n° 2012/05160 By decision 09-D-36 of 9 December 2009, the Competition Authority had heavily sanctioned the incumbent telephone operator and one of its subsidiaries for cartel (...)
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Cass. com, April 16, 2013, Expedia, Appeal No. 10-14.881. The Court of Cassation rules in the case of the partnership between Expédia and SNCF, following the answer of the CJEU of 13 December 2012 to its preliminary question on the interpretation of the European Commission’s de minimis (...)
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CA Paris, March 28, 2013, Shell, Total Réunion, Esso, ea. / Air France (so-called "jet fuel" case), RG n° 2011/13245 Four oil companies which supplied jet fuel to the airlines serving Reunion airport shared the market in a tender organised by Air France. On 1 March 2010, in the so-called (...)
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A commercial agent had summoned his principal in payment of a termination indemnity. In the course of the proceedings, the commercial agent had assigned his claims to a third company for an aggregate price of one euro. Assigned in payment of these claims, the principal exercised its right of (...)
99
Cass. com, 19.06.2012, Rambaud v. Mr. Y and Aviva, no. 11-13-176, During the execution of a public contract, a company had acquired a set of equipment for the production of bitumen products. As anomalies had been noted from the start of the construction work, the purchaser had summoned the (...)
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CA Paris, March 27, 2012, FCE Bank PLC v/ BNP Paribas, RG n° 2010/08937, A car manufacturer was claiming from a bank, as part of its guarantee commitment, the payment of sums owed by a defaulting dealer. A court of appeal declared the guarantee deed granted in 1998 null and void because it (...)
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CA Versailles, 27.10.2011, Agence D v. Toyota, RG n° 10/04733 A communications agency, which had been unsuccessful in the tender procedure launched by the car manufacturer with which it had been doing business for five years, felt that it had suffered a sudden break-up. A court of appeal (...)
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Trib. EU, 13 July 2011, ThyssenKrupp, T-144/07, T-148/07, T-149/07, T-150/07 and T-154/07 Trib. EU, 13 July 2011, Eni , T-39/07 In the first case, several subsidiaries of a company operating in the lift sector which had entered into agreements with other companies in that sector had been (...)
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> Cass. com, 21.06.2011, SNCM, n° 10-15.754 The Corsican regional authority had instructed the Corsican Transport Office (OTC) to issue an invitation to tender for the renewal of the public service delegation for maritime services to the island from Marseilles. Four tenders had been (...)
