Valérie Durand

University Littoral-Cote d’Opale (Boulogne/Mer)
Lecturer

After a Master in private law, Valérie Durand did a PhD in civil law and criminal sciences, entitled "the prescription in civil law", at the University of Saint-quentin-en-Yvelines. She has then been hired as an Associate Professor in private law at the University of Littoral Côte d’Opale since September 2009. She is now teaching various aspects in civil law and focus her research on contract law and mechanisms of responsibility.

Articles

11344 Review

Valérie Durand Non-competition clause: The French Supreme Court specifies the condition of geographic scope required for the validity of a non-competition clause (Nutrisens, Bocage, Nutrisens médical / Clarelia)

42

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 (...)

Valérie Durand Guidelines: The General Directorate for Competition Policy, Consumer Affairs and Fraud Control publishes a new version of the guidelines on the supervision of promotions

86

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 (...)

Valérie Durand Sudden termination: The French Supreme Court recalls that an established commercial relationship may be terminated without notice in the event of a sufficiently serious breach (Système U / M. B.)

41

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 (...)

Valérie Durand Sudden break: The French Supreme Court rules that the announcement of a business transfer has no effect on the established character of the commercial relationship (Garage Sylvestre / Automobile Citroën)

105

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 (...)

Valérie Durand Sudden termination: The French Supreme Court applies Article L. 442-6, I, 5° of the French Commercial Code to a sudden termination of an international commercial relationships (Acciaierie Bertoli Safau Sisak / Phocéenne)

326

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 (...)

Valérie Durand Compensation for termination: The French Commission for Examination of Unfair Commercial Practices examines the compliance with the former Article L. 442-6, I, 2 of the French Commercial Code of a compensation due in the event of non-renewal of a commission contract (Commission contract in the pharmaceutical sector)

155

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 (...)

Valérie Durand Sudden termination: The French Supreme Court recalls the meaning of non-combination of contractual and extra-contractual liabilities in case of sudden termination of commercial relationships (TIM / Laboratoire URG)

187

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. (...)

Valérie Durand Sudden termination: The French Supreme Court rules that a sudden termination of established business relationships may be justified by the existence of an economic crisis (Iplus / Icade EMGP)

297

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 (...)

Valérie Durand Damage quantification: The French Supreme Court rules on the quantification of economic damage and refuses to take into account avoided costs (RPM Compagny / Texto France)

219

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. (...)

Valérie Durand Lawfulness: The Paris Court of Appeal examines the conformity of a non-competition clause with regard to Community law and internal law (P2M Shoes / Besson Chaussures)

266

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, (...)

Valérie Durand Software package: The French Commission for examination of unfair commercial practices examines the compliance of a trade practices of a software package provider with Article L. 442-6 of the French Commercial Code (Trade practices of a software package provider)

88

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 (...)

Valérie Durand Notice period: The French Supreme Court decides that Article L. 442-6, I, 4° of the French Commercial Code does not apply to manoeuvres that occurred after the breach of the commercial relationship (France Ligne / 44 Galerie Lafayette)

99

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 (...)

Valérie Durand Absence of jurisdiction: The French Supreme Court holds that a non-specialized court may not rule on a defence on the merits based on Article L. 442-6 of the French Commercial Code (Pharmacie de la Croix Verte / Pharmagest)

111

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 (...)

Valérie Durand Exclusion: The French Supreme Court rejects the application of Article L. 442-6, I, 5° of the French Commercial Code to the exclusion of a cooperative member (Système U Centrale Régionale Est / Les Magasins longoviciens)

154

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. (...)

Valérie Durand CEPC: The French Commission for Examination of Unfair Commercial Practices examines compliance with the law of clauses introduced in exclusive concession contracts as from renewal of those contracts (Agricultural equipment)

162

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 (...)

Valérie Durand Franchise agreements: The Paris Court of Appeal confirms the sanction of the violation of a non-competition clause during the execution of franchise agreements (Paul service)

156

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 (...)

Valérie Durand Jurisdiction clause: The French Supreme Court retains the application of a jurisdiction clause to a dispute relating to the sudden breach of established commercial relationships (DSL Distribution c/ Wiesenhof International)

242

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 (...)

Valérie Durand Specialised jurisdiction: The French Supreme Court holds that an action based on contractual provisions may defeat exclusive jurisdiction of specialised courts to hear actions based on Article L. 442-6 of the French Commercial Code (GTM c/ Speedy France)

91

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 (...)

Valérie Durand Economic interest grouping: The French Supreme Court states that Article L. 442-6, I, 2 ° of the French Commercial Code does not apply to the internal rules of an Economic Interest Grouping (Les indépendants c/ RadioNova)

198

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 - (...)

Valérie Durand Specialized jurisdictions: The French Supreme Court decides on an arbitration clause and a clause conferring jurisdiction in the context of litigation relating to Article L. 442-6 of the French Commercial Code (Cabinet maîtrise d’œuvre / Lavalin international)

185

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 (...)

Valérie Durand Non specialized jurisdiction: The French Supreme Court considers the jurisdiction of a non-specialized court when, at first instance, the request is solely based on Article 1134 of the Civil Code (Messer France / Norgaz)

106

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 (...)

Valérie Durand Misleading commercial practices: The French Supreme Court specifies the conditions for unfair competition action based on deceptive marketing practices (Laboratoires Léa et La Boutique Léa Nature / Najjar)

198

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 (...)

Valérie Durand Non-compete: The French Supreme Court reiterates the need to investigate if the non competitive clause was respected by the transferor of a business (Un jour à Paris / Le Manège)

108

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 (...)

Valérie Durand Temporal application of the law: The French Supreme Court holds that Article D. 442-3 of the Commercial Code is not applicable to proceedings introduced before its entry into force (La Redoute ; Generalis)

162

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 (...)

Valérie Durand Non-compete clause: The French Supreme Court holds that the non-compete clause in a non-employee management contract must provide for a financial consideration otherwise the clause would be void (Distribution Casino France)

194

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 (...)

Valérie Durand Specialized Courts: The French Supreme Court holds that the breach of Article D. 442-6 of the Commercial Code is punishable by a plea of non-admissibility and affirms the impossibility of a separate instance (Alstom Switzerland, Alstom Holdings, Alstom / UAPE Holdings Usines Applications Poly Expases)

140

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 (...)

Valérie Durand Term of payment: The French Commission for Examination of Unfair Commercial Practice excludes the application of legal thresholds for term of payment in national law applicable to international sale contracts

190

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 (...)

Valérie Durand Preliminary ruling on constitutionnality: The French Constitutional Court declares the third sentence of Article L. 442-6, III, paragraph 2 of the Commercial Code (concerning the civil fine) conform to the Constitution (ITM Alimentaire international)

111

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 (...)

Valérie Durand Non-compete clauses: The CEPC holds that a non-compete clause may be not in accordance with contract law, the law of restrictive practices and the law of unfair practices

274

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 (...)

Valérie Durand Parasitism: The French Supreme Court holds that the protection of famous marks is not depending on likelihood of assimilation or confusion (Maison du monde / Gifi et Gifi Mag)

149

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 (...)

Valérie Durand Non-compete clause: The French Supreme Court approves the trial judges for condemning the transferor and the company in which he pursues an activity in violation of the non-compete clause inserted in the share transfer agreement (M. X… et PBES / MM. Y… et Z… )

235

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 (...)

Valérie Durand Non-competition clause : The French Judiciary Supreme Court holds that the reduction in the financial compensation provided by the parties in case of breach of work agreement shall be deemed unwritten (M. X./Fidecompta)

195

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. (...)

Valérie Durand Counterfeit : The French Judiciary Supreme Court recalls the conditions of infringement proceedings, unfair competition and parasitism in the event of third party use of a name (registered as a trademark) to designate a tourist site on sold products (Moulin Rouge)

253

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 (...)

Valérie Durand Trademark coexistence : The French Supreme Court specifies the assessment criteria of counterfeit and unfair competition in case of disrespect of a trademark coexistence agreement (Lehning, Ecophar)

274

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 (...)

Valérie Durand Abuse of rights : The French Supreme Court approves of the trial courts having characterized an excessive use of unfair competition and infringement action (Gemlog)

212

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 (...)

Valérie Durand Inadmissibility : The French Supreme Court approves judges having declared an unfair competition action inadmissible due to the defendant’s lack of standing (Florian Mantione Institut)

179

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 (...)

Valérie Durand Aggregation of actions : The French Supreme Court holds that a victim may bring both an action in contract and an unfair competition action against the same debtor if each action is based on separated facts (Global Ecopower)

659

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 (...)

Valérie Durand Non-competition clause : The French Supreme Court holds that the seller of a business is free to resettle beyond the area stipulated in the non-competition clause (Mme X...)

167

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 (...)

Valérie Durand Non-competition clause: The French Supreme Court consideres there is no prohibited or unfair competition as far as the non-competition clause is valid and respected by the transferor of a business asset and as there is no evidence of transferor actions intending to divert the business customers (GL3E)

137

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 (...)

Valérie Durand Non-competition clause : The French Supreme Court holds that when the transferee only invokes the non-competition clause in order to recover compensation in respect of the damage resulting from its breach, the Court of Appeals is not required to examine the warranty of quiet possession (M. Y...)

131

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 (...)

Valérie Durand Privity: The French Supreme Court considers that the non-competition clause only imposes obligation on the debtor and not on the third-party purchaser of the business assets (INOVA)

261

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, (...)

Valérie Durand Employment contract: The French Supreme Court considers that the non-competition clause which provides the payments of financial consideration before the termination of contract is void (Laser Symag)

117

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 (...)

Valérie Durand Non-competition clause: The French Supreme Court decides to stay the proceedings and to refer the case to the administrative courts in order to assess the legality of the art. R. 242-65 of the Code Rural (Mme X…)

144

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 (...)

Valérie Durand No competition clause : The French Supreme Court considers that the voidance of the non-competition clause in a contract of employment is always at the detriment of the employee (M. X c/ Egérie Osia)

110

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 (...)

Valérie Durand Liberal activity : The French Supreme Court approves the judgment of the Court of Appeal stating that the lawfulness of the non-competition clause is not certain enough for temporary measures to be pronounced (Mme X c/ M. Y et Mme Z)

126

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 (...)

Valérie Durand Shareholders : The French Supreme Court considers that a non-competition clause stipulated in a social rights transfer agreement is licit towards the signatory shareholders as long as it is limited in time and space and proportioned to the interests justifying protection (M. X. c/ Point G immobilier Tours c/ Crédit agricole Touraine-Poitou immobilier)

242

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 (...)

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