Frédéric Buy

Readers of the journal Concurrences may be surprised to find in these columns a commentary on a civil law decision. But, apart from the fact that it was eagerly awaited and that it is the first to rule, at the highest level, on the question of the scope of application of article 1171 C. civ., (...)

The Rassemblement des Opticiens de France, a professional association whose mission is to moralize and defend the ethics of the optician profession, organized "mystery customers" to visit various optical stores in order to verify the possible fraudulent practice of falsifying invoices by (...)

The question of the relationship between the texts of the Civil Code and the Commercial Code relating to significant imbalance is not yet settled, and it is always with interest that one welcomes the judgments rendered by the judges of the merits, even if they are summarily motivated, which (...)

This section selects books on themes related to competition laws and economics. This compilation does not attempt to be exhaustive but rather a survey of themes important in the area. The survey usually covers publication over the last three months after publication of the latest issue of (...)

Non-solicitation clauses are not non-competition clauses. For an employer, it is not a matter of prohibiting his employee from engaging in a competing activity at the end of his contract, but, for a company, of prohibiting a commercial partner from soliciting (canvassing or hiring) its (...)

In the last issue of this journal, one of our columnmates reported on a decision of the Paris Court of Appeal which had ruled, in a somewhat peremptory manner, that "judicial review of the price (...) does not take place outside of the significant imbalance", so that "the provisions of (...)

Here is a very interesting decision, which shows the limits of the "L. 442-1 argument" in typically contractual disputes(i.e. outside the Minister’s regulatory action). In this case, Mobilead had entered into a contract with France brevets with the aim, on the one hand, of strengthening and (...)

Readers will recall that, in a decision handed down on 15 January 2020, the Commercial Chamber of the Court of Cassation made an important clarification concerning the notion of "commercial partner", within the meaning of the former Article L.442-6, I, 2° C. com. (Cass. com., 15 Jan. 2020, n° (...)

The recasting of Title IV and the creation of a new article L. 442-1 succeeding the former article L. 442-6 did not extinguish, in one fell swoop, the difficulties of application of the old texts. A dispute recently submitted to the Paris Court of Appeal thus raised the question of the (...)

We won’t even pretend to be surprised anymore. Reforms of the law of commercial relations are being carried out at great speed without having had time to direct the previous ones and without always measuring their interest (on this phenomenon, G. Canivet, "L’histoire sans fin fin des lois (...)

The Paris Court of Appeal enters in resistance. While the Court of Cassation now considers that the provisions of former article L. 442-6 C. com. constitute police laws within the meaning of international law (Cass. com., 8 July 2020, No. 17-31536, Concurrences 4-2020, p. 151, obs. F. Buy), (...)

Should an action for liability for abrupt termination of an established commercial relationship brought by a consultancy firm against SNCF be brought before the courts or not? This is, in substance, one of the questions (the law of anti-competitive practices was also at issue) that the Court of (...)

The reader will no doubt recall the judgment of the International Chamber of the Paris Court of Appeal dated June 3, 2020, which we reported in the previous issue of this column (CA Paris, ch. com., June 3, 2020, No. 19/03758, Concurrences 3-2020, obs. F. Buy). In response to the question (...)

Conflict of doctrines at the Paris Court of Appeal! Chambers 5-4 and 5-5 have so far disagreed as to whether or not the provisions of the former Article L. 442-6, I, 5° C. com. which became L. 442-1, II, constituted a police law: yes for the former (CA Paris, p5 Jul. 2017, RG no. 15/19988; 9 (...)

Litigation over "written agreements" is rare enough to draw the reader’s attention to the judgment handed down by the Aix Court of Appeal on 28 May 2020. The question that was asked there was most interesting from a practical point of view: does the fact that a service provider has not concluded (...)

"Only the party who directly maintains an established commercial relationship with the other party may, on the basis of this text, seek the latter’s liability in the event that he has, brutally and without written notice, broken this relationship, even partially third parties may claim (...)

Here is a timely ruling (Paris, 5-5, Feb. 27, 2020, AJ Contrat 2020, forthcoming, obs. F. Buy). A few months ago, the Plenary Assembly of the Court of Cassation decided to uphold its Boot shop jurisprudence (Cass. ass. plén., Oct. 6, 2006, no. 05-13255), solemnly reaffirming that "a third party (...)

It is safe to say that the Cristal de Paris judgment is one of the most important judgments that the Court of Cassation has ever handed down on the subject of unfair competition, and on compensation for economic loss more generally. This innovative decision is promised to the greatest publicity (...)

Late payments are, as we know, a real scourge. Because the ordinary law, which only grants interest at the legal rate (art. 1231-6, Civil Code), "has never discouraged bad payers" (D. Mainguy, note JCP E 2009, 1543), the Commercial Code has long provided for a derogatory rule: penalties for (...)

How does the law on abrupt breakups deal with corporate groups? The ruling handed down by the Court of Cassation on 16 October 2019 (CCC 2019, no. 199, obs. N. Mathey) provides an opportunity to take stock of a question that is certainly classic, but always delicate (see not. F. Buy, L’article (...)

On 2 October 2019, the Court of Cassation handed down an important and noteworthy ruling (D. actu 17 October 2019, obs. X. Delpech; CCC 2019, No. 198, obs. N. Mathey; AJ Contrat 2019, p. 483, note N. Dissaux; adde F. Buy, De quelques conflits de lois internes en droit des affaires, D. 2019, p. (...)

Question: Can an acquiring company be ordered to pay a civil fine for an unfair commercial practice (in this case, the obtaining of manifestly disproportionate advantages by a large distributor) previously committed by the company it has absorbed? Yes, and three times yes! Yes, firstly, for (...)

The law of unfair commercial practices is now leading practitioners and academics to "revisit the relationship between ordinary law and special law" (J. Klein, Les rapports entre le C. com. et le C. civ, Concurrences No. 3-2019, art. 90980.). Especially in the case of abrupt break-ups, the (...)

Unfair competition is one of those notions that are sometimes thought, with little naivety, to be easily tamed. On the one hand, unfair competition does not, at least officially, belong to the family of unfair commercial practices as defined by the recent reform of Title IV of Book IV C. com (...)

The time has come for administrative judicial litigation in commercial relations. After the introduction, by the Hamon law of 17 March 2014, of the administrative fine penalty to sanction the violation of a whole series of provisions of Title IV of Book IV C. com. the administrative judge (...)

By the time the reader reads these lines, the judgment under commentary will perhaps no longer be more than an illustration of the Byzantinisms on which article L. 442-6 C. com. has been based for too long. In this case, judges had rejected a lawyer’s claim for damages, directed against the law (...)

Here is a most common contractual clause, housed in a franchise agreement: the distributor is prohibited from "creating a competing network[ in the same field] in all the cities where the franchised institutes are located, for one year from the termination of this contract". The clause is a (...)

Recasting of the law of commercial relations by means of ordinances, Act I! In accordance with the authority given to it by the "EGalim" Act (Article 15), and in record time, the Government therefore adopted a first ordinance on raising the threshold for resale at a loss and regulating (...)

That’s it, the big works are underway! Article 17 of the "EGalim" law has, in fact, authorized the Government to take by ordinance, within a period of six months from 1 November 2018, any measure falling within the scope of the law necessary to amend Title IV of Book IV C. com . At the time of (...)

Created by Act No. 2018-727 of 10 August 2018 for a State at the service of a trust company (Article 21), the new Article L. 441-6-2 C. com. will undoubtedly be of interest to professionals. Indeed, the technique of rescripting is appearing in a particularly sensitive field: that of payment (...)

Is it possible to renegotiate during the year the single agreement concluded pursuant to Article L. 441-7 C. com, and if so, under what conditions? The answer given by the Paris Court of Appeal in this decision handed down on 16 May 2018 is important (AJ Contrat 2018, p. 385, obs. L.-M. (...)

The judgment handed down on 15 February 2018 by the Third Civil Chamber of the Court of Cassation (AJ Contrat 2018, p. 143, obs. K. Magnier-Merran) can be placed in the family of "grands arrêts du petit droit" (F. Buy, Les grands arrêts du petit droit, D. 2017, p. 1481). It is one of a growing (...)

The movement to block the application of Article L. 442-6 C. com. is still in progress. The reported judgment is perhaps not the most spectacular illustration of this, but it has the merit of reminding us that the law of commercial relations is not a "trick" that could be conveniently wielded (...)

The judgment is not published in the bulletin, which is unfortunate (see CCC 2018, comm. 87, obs. M. Malaurie-Vignal). For the Court of Cassation is making an important decision here, which defuses an attempt to import so-called "economic" reasoning in civil law. Certain practices observed in (...)

The bill for balanced trade relations in the agricultural and food sector does not merely lay the foundations for a reform of agricultural trade relations (see our commentary above). It also, and perhaps above all, in its articles 9 and 10, announces the future reform of Title IV of Book IV of (...)

The law on the sale of agricultural products, as it has been known since the law on the modernisation of agriculture and fisheries (LMAP) of 27 July 2010 (for a general presentation, F. Buy, M. Lamoureux and J.-C. Roda, Droit de la distribution, LGDJ, 2017, n° 393 et seq.; and for a detailed (...)

With a simple "pedagogical" dimension, but with a very valuable content, the fact sheet published on the Paris Court of Appeal’s website represents a sort of instruction manual for assessing the damage resulting from a sudden termination of an established commercial relationship. In short, this (...)

The commented judgment is important (obs. C. Mouly-Guillemaud, Lettre distr. nov. 2017; note N. Dissaux, JCP E 2017, 1665; chron. F. Buy, RLDC Jan. 2018, forthcoming). It constitutes a new illustration of the current "ebb" of article L. 442-6 C. com (Flux et reflux de la rupture brutale d’une (...)

We reported and approved in these columns, a few months ago, the excellent decision of the Court of Appeal of Paris of February 3, 2016 which had refused, in substance, to apply the rules on significant imbalance and abrupt rupture to the relations maintained by a cooperative society of retail (...)

The solution set out in the Court of Cassation’s ruling of 20 September 2017 is self-evident. Nevertheless, it shows that the rule of jurisdictional specialisation laid down in Article L. 442-6, III C. com. sometimes gives rise to improbable disputes. In the present case, in declaring (...)

We had recently reported in these columns an original decision of the Paris Court of Appeal (CA Paris, 5-5, Jan. 28, 2016, RG n° 14/13036, Concurrences No. 2-2016, p. 131, obs. F. Buy JCP G 2016, 288, note C. Grimaldi; RTD civ. 2016, 361, obs. H. Barbier) which had entered into resistance (...)

The ruling of the Court of Cassation handed down on 5 July 2017 will be of particular interest to practitioners. Its lesson could be that, if legal rigor is not in order with regard to "the fundamentals", the law of restrictive practices, however attractive it may be, could well be a mirror for (...)

The practices of hotel reservation platforms have not gone unnoticed for some time now. Lawyers have discovered the so-called "parity" clauses that these platforms impose in their contracts with hoteliers: the "parity of rates" clauses, which ensure that the best rates are automatically (...)

Here is an unpublished decision of the Court of Cassation which, out of the blue, seems to have settled, for the first time, one of the major questions relating to the regime of article L. 442-6, I, 2° C. com. In the case in point, a company had signed a contract with a telephone operator for (...)

After the signs of the large food distribution, the signs of the specialized distribution are, in their turn, under the spotlight of the Court of Cassation. The scenario is well known, with an action initially launched by the Minister who considered that two clauses inserted in the contracts (...)

Among the questions raised by Article L. 442-6, I, 5° C. com., that of the delimitation of its field of application is certainly one of the most delicate (Obs. F. Buy, L’article L. 442-6, I, 5° du Code de commerce, Lamy droit du contrat, 2016, n° 2495 et seq. ; adde notre article Rupture brutale (...)

The decision of the Commercial Chamber of the Court of Cassation of 25 January 2017 (Obs. F. Buy, D. 2017, p. 481; obs. M. Béhar-Touchais, JCP G 2017; obs. S. Pech-Le Gac, JCP E 2017, 1135), presided over for the occasion by First President Louvel, is probably the most important decision that (...)

The law on transparency and practices restricting competition has just been amended by the imposing law n° 2016-1691 of 9 December 2016 on transparency, the fight against corruption and the modernisation of economic life, known as "Sapin 2". One hardly dares, so well known is it, to sing the (...)

Can a candidate for integration into a selective distribution network challenge the refusal of approval on the basis of discrimination? This is the beautiful question posed by the decision of the Paris Court of Appeal handed down on 19 October 2016 (see Vogel & Vogel blog: vogel-vogel.com). (...)

This is the latest episode in the fight, for the moment victorious, led by the Minister of the Economy against the players in the mass distribution sector. In a ruling handed down on 4 October 2016 (CCC 2016, comm. 253, obs. N. Mathey; blog Vogel & Vogel), the Commercial Chamber of the (...)

Strangely, the central condition of the offence of brutal termination of an established commercial relationship was, until now, only imperfectly understood (see, however, the enlightening study by C. Mouly-Guillemaud, "Répercussion de la crise économique, perte de rentabilité d’une relation ou (...)

Litigants are called upon to put their work back on the job! For the application of the Brussels I European Regulation, the Court of Justice of the European Union has just ruled, in a break with the solution that was up to now defended by the Court of Cassation, that "Article 5(3) of Council (...)

Groupe Planet Sushi, which specialises in the catering and delivery of Japanese cuisine, which it carries on, notably through its subsidiaries and its network of franchisees, is assigned by one of its service providers, Blue Oceans Venture, on the basis of an abrupt termination of an (...)

It is well known that Article L. 442-6 of the French Commercial Code, which was originally created to govern distribution relationships, has long since fallen out of bed. Can it now be applied to the relationship between a company and its own partners? This is the very interesting question (...)

With this new Trends issue related to the last evolutions of the French distribution law, the review Concurrences carries on its work on the most important competition issues raised by the Macron law adopted on August 6th, 2015. From small adjustments in transparency law to genuine developments (...)

Practitioners familiar with the litigation of abrupt terminations will not fail to appreciate the originality of this decision of the Paris Court of Appeal "discovered" by our colleague Cyril Grimaldi (JCP G 2016, 288), which runs counter to the current case law of the Court of Cassation on a (...)

Although foreseeable (the judgment is not published in the Bulletin), the solution adopted in this case by the Commercial Chamber of the Court of Cassation will certainly attract the attention of legal professionals. Indeed, the High Court decided, for the first time to our knowledge, that the (...)

It is customary to say, perhaps a little quickly, that the concept of the corporate group, which is more economic than legal, is difficult to grasp properly in law. But, precisely because it does not run on classical civil law concepts, is the law of abrupt breaks in commercial relations not (...)

After a few years of waiting, the decisions of the Court of Cassation on the "significant imbalance" are beginning to flourish. The reported ruling, dated 29 September 2015, confirms and consolidates, in the form of a lengthy rejection decision, what three other noteworthy rulings handed down (...)