Valérie Durand

The case has already made news (Cass. com., November 28, 2018, No. 17-18.619, L’essentiel, Droit de la distribution et de la concurrence, Feb. 1, 2019, obs. O. Zakharova-Renaud; Contrats conc. consom. 1/2020, 1, obs. M. Behar-Touchais and J.-B. Gouache; Juris association 2019, n° 592, p. 9, obs. (...)

While it is traditional to distinguish between non-competition obligations according to their source (contractual or legal), it is also possible to distinguish between them according to their source (contractual or legal). See in particular. Rep. Dr. commercial, Dalloz, v Concurrence : (...)

The former article L. 442-6 of the French Commercial Code remains a particularly lively source of litigation. One of the causes of this litigation is undoubtedly the delimitation of the field of application of the sanction mechanism for the brutal rupture of established commercial relations. (...)

From 2008 onwards, the litigation arising from the practices referred to in the former article L. 442-6 of the French Commercial Code has been largely competed by the questions raised by their judicial treatment. Indeed, the reservation of this litigation to specialized courts that have been (...)

Bouygues Telecom and Tél and Com began their commercial relationship in 1999. During 2012, the two partners considered modifying the terms of their relationship with regard to the specific distribution conditions. As no agreement was reached, by letter dated November 27, 2012, Bouygues Télécom (...)

The legislator has chosen to establish a specialisation of the courts in the wake of litigation relating to restrictive competition practices. However, the implementation of this system continues to reveal its complexity. The decision rendered by the Commercial Chamber of the Court of Cassation (...)

Housed at the heart of the mechanism introduced in the former article L. 442-6, I, 5° C. com. (now, C. com., art. L. 442-1, II since Order No. 2019-359 of April 24, 2019), the condition of "commercial relationship" remains a place of tension. While some solutions promote a flexible conception of (...)

Extinctive prescription, of which Bigot de Préameneu said that ’of all the institutions of civil law, (prescription) is the most necessary to the social order’, remains a cardinal feature of litigation, against which the claims of litigants frequently come up against. The decision rendered by the (...)

The Commercial Chamber of the Court of Cassation has recently had occasion to issue a few reminders concerning the implementation of the responsibility of the author of a brutal breach. The case was very simple: a contract for the provision of collection services had been concluded between the (...)

The Goutal company has contracted the exclusive distribution of its brand products to Dispar Spa. The contract, concluded for a period of three years, contains a clause of tacit renewal for periods of one year and provides for the possibility for the parties to terminate the agreement three (...)

Following a dispute concerning a disturbance on a structure, the company Établissement Denis has terminated its commercial relations with the company Hamel, the termination having been notified by a letter dated September 2, 2009. In a first dispute, the latter made a counterclaim for (...)

It’s a very simple case. Since 1999, various agreements have been concluded between ODA, which provides training and consultancy services in the marketing of agricultural raw materials, on the one hand, and the National Confederation of Mutual Credit (CNCM) and three Swiss Federal Credit Unions (...)

If the former article L. 442-6, I, 5° C. com. - applicable to the case - provided for the possibility of termination without notice, this possibility remained subject to the occurrence of special circumstances. These circumstances included force majeure and breach of contract. In order to (...)

Although their validity and usefulness are recognised, non-competition clauses are still met with reluctance today because of their potential for substantial infringements of fundamental freedoms such as the freedom of enterprise. For this reason, the effectiveness of non-competition clauses (...)

Article 15, I, of Law No. 2018-938 of 30 October 2018 for balanced trade relations in the agricultural and food sector and healthy, sustainable and accessible food for all (known as the "Egalim Law") empowered the government to take, by means of an ordinance, "any measure falling within the (...)

Two companies operating in the leather goods sector obtain from a common partner the opening of a counter in a department store located in Osaka. The two counters, located close to each other, are open on the floors of prestigious leather goods stores. One of the counters (opened under the (...)

Although Title IV of Book IV and, with it, Article L. 442-6 C. com. have been reformed (see L. No. 2018-938, 30 October 2018 for the balance of trade relations in the agricultural and food sector and healthy, sustainable and accessible food for all, art. 17 empowering the Government to reform (...)

The activity of transporting people by car has been quite largely transformed by the contact with digital technology. The appearance of new services and new ways of providing transport services associated with the emergence of platforms have inevitably called into question the rules of various (...)

Act No. 2018-938 of 30 October 2018 on balanced trade relations in the agricultural and food sector and on healthy, sustainable and accessible food for all - known as the "Egalim Act" - is once again the subject of much attention. The Senate’s Economic Affairs Committee set up a monitoring (...)

The ruling handed down by the Toulouse Court of Appeal on 4 September 2019 is an opportunity to recall the various sources of protection for competitors against acts of unfair competition. The case concerns acts carried out by a general insurance agent following his retirement. At the end of (...)

The case between Playmédia and France Télévisions has once again made the news. The dispute arose around the offer of a live broadcasting service, free of charge and without subscription, of television channels accessible via a playtv.fr website proposed by the company Playmédia. More specifically, (...)

The termination of established commercial relations remains a particularly lively basis for litigation, as evidenced by the ruling handed down by the Commercial Chamber of the Court of Cassation on July 3, 2019. This ruling also provides an opportunity for the Court of Cassation to clarify the (...)

Where, unlike its partner, a party to the commercial relationship has its seat and activity in France, it seems logical that it should seek the protection offered by French law. This is the case where the breach of which it is a victim falls, or appears to fall, under the provisions of the (...)

The Commission d’examen des pratiques commerciales (CEPC) was asked to examine a clause contained in a commission contract in the light of the former Article L. 442-6, I, 2° C. com. (which, with Order no. 2019-359 of 24 April 2019, became Article L. 442-1, I, 2° C. com.). The disputed clause (...)

Undoing business relationships that have developed over decades is not easy. The author of the breach exposes himself to the risk of his extra-contractual liability on the basis of the former article L. 442-6, I, 5° C. com. (which, withOrder no. 2019-359 of 24 April 2019, became article L. (...)

The reduction or cessation of orders, even substantial, does not necessarily fall within the scope of Article L. 442-6, I, 5° C. com. However, the relationship that is broken must be an established commercial relationship and the break must be abrupt. The termination must also be attributable to (...)

The abrupt termination of established commercial relations constitutes a civil fault which allows the party who is the victim to engage the extra-contractual liability of the person who caused it (Com. L. 442-6. - Cass. com. 6 Feb. 2007, No. 04-13178, Bull. civ. IV, No. 21; V. égal. Cass. com. (...)

In November 2004, Besson Chaussures entered into a contract with P2M Shoes under which it entrusted the latter with the operation of a business for the sale of footwear, textiles and accessories. A new contract - a management contract for an indefinite period - was signed in September 2008, (...)

The Commission d’examen des pratiques commerciales has been questioned as to the conformity with the provisions of Article L. 442-6 C. com. of a commercial practice consisting of a software package supplier demanding payment of an additional fee from its customer under threat of ceasing (...)

Since 1982, France Ligne has had a business relationship with four companies in the Galeries Lafayette Group (GL companies), including 44 Galeries Lafayette - the Group’s central purchasing unit. The latter notified France Ligne by registered letter dated 26 October 2011 of the termination of (...)

Despite the successive clarifications provided by case law, the system of specialisation of the courts remains a hotbed of litigation. The Commercial Chamber of the Court of Cassation has handed down no less than ten judgments in this area since January 2018, including the judgment of 16 May (...)

Case law offers a new example of a restriction on the application of article L. 442-6 C. com. based on the existence of a special regulation and not on the impossible characterisation of the conditions of implementation of this provision (see not., Cass. com, Oct. 23, 2007, No. 06-16774, Bull. (...)

The CEPC was referred to it by a trade union concerning two clauses inserted in exclusive concession contracts when they are renewed, it being specified that the contracts in question are concluded between a company operating in the agricultural equipment sector and the members of its (...)

The ruling handed down by the Commercial Chamber of the Court of Cassation on 21 March 2018 (No. 16-28412. V. not. F. Buy, Le contentieux et la modulation dans le temps des revirements de jurisprudence, AJ contrats 2018, p. 182 et seq.) underlines both the variety of questions raised by the (...)

The Holder company (franchisor) operates the franchise network of bakeries under the Paul brand. On April 6 and December 11, 2006, it entered into two franchise agreements with the company Coupaul. These agreements cover the operation of a bakery business owned by the franchisee in Poitiers and (...)

Wiesenhof, a company incorporated under German law for the production and marketing of poultry, which has been doing business with a wholesale company since 2005, has announced to its business partner that it is discontinuing its services. A letter dated 25 April 2012 to this effect set the (...)

The ruling handed down on 21 June 2017 by the Commercial Chamber of the Court of Cassation testifies to the difficulty of implementing the monopoly conferred on the specialised courts to hear disputes relating to Article L. 442-6 C. com. under the rules of civil procedure. It also underlines (...)

The GIE Les indépendants was created in 1992 by local radio stations. The aim was for these radio stations to aggregate their respective audiences in order to offer national advertisers a grouped offer of advertising space. After joining the members of the GIE - in 1993 and 2003 respectively - (...)

The establishment of specialized courts with jurisdiction to hear disputes relating to article L. 442-6 C. com. was in response to a concern for legal and judicial efficiency. The specialisation of the courts was intended to ensure the rapid, appropriate and uniform treatment of such disputes. (...)

Litigation arising from the existence of specialised courts with exclusive jurisdiction to hear disputes relating to Article L. 442-6 C. com. is not confined to questions arising from the multiple grounds for the claims or the application over time of the system set up by Law 2008-776 of 4 (...)

Since Law No. 2008-776 of 4 August 2008, Article L. 442-6, III, paragraph 5 C. com. reserves the right to hear disputes relating to the application of Article L. 442-6 of the same Code to the specialised courts listed in Decree No. 2009-1384 of 11 November 2009. The system is supplemented by (...)

The dispute was between a company specialising in the manufacture and marketing of cosmetic products and a former supplier of artisanal soaps manufactured in Aleppo. At the heart of the dispute was the marketing by the former and a company of the same group of a soap under the name "Aleppo (...)

At issue was the scope of the commitment made by the seller in the context of a non-competition obligation subscribed at the time of the sale of the business. Following the sale, the assignee - the company Un jour à Paris - noted the opening of a similar business in premises adjacent to the one (...)

Since Law No. 2008-776 of 4 August 2008, Article L. 442-6, III of the Commercial Code includes a fifth paragraph, which establishes the exclusive jurisdiction of specialized courts. More specifically, it reserves the right to hear disputes relating to Article L. 442-6 of the same Code to (...)

The articulation of the special rules between them and, more particularly, the rules of ordinary labour law and the special rules applicable to non-employee managers of food retail branches - as provided for in Articles L. 7322-1 et seq. of the Labour Code - has given rise to significant (...)

In order to carry out energy projects in Russia, several companies of the Alstom Group and UAPE Holding Usines Applications Poly Expanses have concluded several cooperation protocols and preparatory agreements. The purpose of these agreements is the construction of hydroelectric power stations (...)

On 7 March 2016, the Trade Practices Review Commission (TPRB) was asked for advice on the coordination of domestic and international rules on payment periods. More specifically, the request concerns the application of Article L. 441-6, I, paragraph 9 of the French Commercial Code to an (...)

On 18 February 2016, the Constitutional Council was seized of a priority constitutionality question referred by the Commercial Chamber of the Court of Cassation (ruling no. 286) because of its serious nature. Formulated on the occasion of the appeal against a decision of the Paris Court of (...)

The Commission d’examen des pratiques commerciales has been asked to give an opinion on the compliance with the law of a non-competition clause inserted in contracts concluded between a hotel reservation company and hotel establishments. The disputed clause stipulates that ’the hotel operator (...)

Parasitism is defined in case law as "all conduct by which one economic agent interferes in the wake of another in order to take advantage without spending anything of his efforts and know-how" (Cass. com., 26 Jan. 1999, No. 96-22457). Although sanctioned on the basis of tort liability for (...)

As shown by the decision handed down by the Commercial Chamber of the Court of Cassation on April 12, 2016, the protection of reputed trademarks is distinguished by its scope. While the principle of speciality has been attenuated - the protection applying when the goods or services in question (...)

The inclusion of a non-competition clause in the contract for the transfer of shares may prove particularly useful. First of all, the non-competition clause makes it possible to avoid, at least in part, the debate concerning the existence of a non-competition obligation on the part of the (...)

The requirement of a monetary consideration for the non-competition undertaking is, in labour law, at the heart of a lively dispute. Affirming the specific nature of labour law, the Court of Cassation has made this requirement a condition for the validity of the non-competition clause (see not. (...)

The company Moulin Rouge is the owner of a French word mark "Moulin Rouge", registered on May 3, 1973 and renewed on November 26, 2002. This mark was registered to designate, in particular, in classes 16 and 21, stationery, office articles and glassware. The company Bal du Moulin Rouge - which (...)

Cass. com, Feb. 10, 2015, Mr. X v. Exbanor, No. 13-28263 The Court of Cassation agrees with the trial judges for having dismissed the action for infringement and unfair competition insofar as, on the one hand, it emerges from their findings and assessments that comprehensible and complete (...)

Cass. com. 10 Feb. 2015, SPF c/ SIPG, No. 13-24399 The Court of Cassation points out that, by virtue of the principle of freedom of trade and industry, the canvassing of other people’s customers, even by a former employee or his representative, is free provided that it is not accompanied by an (...)

Cass. com, Feb. 10, 2015, Lehning v. Ecophar, No. 13-24.979 While coexistence agreements allow for the coordination of the exploitation of trademarks to prevent conflicts that may arise, they do not in themselves preclude the existence of unfair commercial practices. At most, it is then (...)

Cass. com, Feb. 10, 2015, Ryanair v. Opodo, No. 12-26.023 The air transport company Ryanair Limited is the owner of the Community word mark ’Ryanair’ (No 4 168 721 registered on 13 December 2004) and the semi-figurative Community trade mark ’Ryanair’ (No 338 301 registered on 21 August 1996 and (...)

Cass. com, 20 Jan. 2015, Tuto4pc c/ SNCF, n° 11-28.567 The Société Nationale des Chemins de Fer (SNCF), the owner of eight semi-figurative and word marks ("SNCF", "TGV", "Transilien", "Voyages-sncf.com" and "voyages-sncf") notes that the site accessible at http://www.lo.st uses them as keywords (...)

Two companies note that a third has marketed shoes reproducing the characteristics of the model of shoe they operate (in this case derby type shoes, reference SR 9900 new rodeo Calf 999, then SR 9900), under the name Serge and Serge bis. Considering themselves to be victims of unfair imitation, (...)

A new software for radiology practice management is marketed from November 2005. Noting that it was being offered to its clients, a competitor company decided to entrust an agency with an investigation mission and to seek the opinion of an amicable expert. At the end of the investigations, the (...)

As part of the operation of its brand, a manager enters into a subcontracting agreement with a consulting firm. This contract includes a non-competition clause aimed at carrying out certain recruitment assignments. When the contract expires, a contractual relationship similar to the first one (...)

After almost 5 years in office, the co-founder of a company specializing in the production of electricity from wind energy resigns from his position as President and Chief Executive Officer. At the same time, he made a three-year contractual commitment not to compete with the company in which (...)

At the origin of the business was a simple contract for the transfer of a business by which the seller undertakes, in particular, not to relocate. The commitment not to relocate is limited both in its geographical scope and duration. Shortly after the sale, the seller relocates in strict (...)

The contractual non-competition obligation on the seller of a business is the source of a particularly lively dispute, one of the most lively aspects of which is undoubtedly the determination of its scope. Beyond the difficulties encountered in determining their validity, these clauses continue (...)

In the present case, at the time of the transfer of a business, the parties to the contract agree to insert in the deed a non-competition clause providing for a non-competition obligation for a period of three years from the date on which the purchaser takes possession of the business. As a (...)

On April 2, 1999, a commercial company sold part of its business. This sale is solely aimed at the business of selling kitchens to private individuals. The transfer agreement includes a non-competition clause in which the transferor "formally refrains from creating, founding, acquiring, (...)

Hired as a sales engineer and consultant in September 2001, then recruited as managing director in March 2002, the employee was finally dismissed for serious misconduct in the context of these two activities. Following his dismissal, he applied to the industrial tribunal to obtain payment of (...)

The turnaround in case law brought about by the Barbier decision of 10 July 2002 has not finished making headlines. After having ipso facto caused the invalidation of all non-competition clauses concluded under previous case law (Cass. soc., 17 December 2004, Bull. civ. V, no. 436), it now (...)

Engaged on December 22, 2008 as a project manager assistance project manager, the employee in breach of the contractual non-competition obligation resigned on January 19, 2010. Subsequently, he applied to the industrial tribunal for payment of a provision on the grounds of the illegality of the (...)

The summary procedure is particularly useful in litigation arising from non-competition clauses in that it allows the violation of the most obvious non-competition clauses to be quickly sanctioned. However, the specific conditions specific to this procedure still need to be met, as evidenced by (...)

This case involved an agreement signed in February 2007 to acquire all the social rights of a real estate company. This agreement contained a non-competition clause to be borne by the assigning partners. However, one of them became an employee of the transferred company after the signing of the (...)