Jean-Louis Fourgoux

The Court of Cassation had censured the Paris Court of Appeal, which had dismissed a distributor’s action against XEROX ’s contractual terms on the grounds of significant imbalance. The Commercial Chamber had ruled that successive contract renewals do not rule out the absence of negotiation (...)

These decisions could be included in the list of the most important rulings in the law of restrictive practices because of the scope of the answers provided to the legal questions raised by the companies. raised by the companies. The analysis of the validity of the action of the Minister of (...)

The decree n°2022-1701 of December 29, 2022 of immediate application, defines the modalities of publicity of the measures, essentially injunctions, taken in application of articles L.464-9 and L.470-1 C. com. regarding competition law and L.521-1 and L.521-3-1 C. cons. (compliance (...)

The litigation initiated by ILEC against Amazon continues to raise questions that allow for a better understanding of French legislation on restrictive competition practices. After having challenged the conformity of article L 442- 1 C. com. with the constitution before the Constitutional (...)

The Paris Court of Appeal ruled in a case involving Franprix licensees and the network head on the transparency of commercial conditions. Franprix was, through the Sedifrais company, certainly a central purchasing agency but refused to reveal the exact conditions of negotiation with suppliers (...)

The Court of Cassation has ruled in some detail on a dispute between the distributor Concurrence and one of its suppliers "Samsung". A termination of commercial relations had been agreed upon with a notice period. Contesting the new commercial conditions that Samsung wished to impose, the (...)

The Paris Court of Appeal, ruling on a referral from a previous Supreme Court, confirmed a judgment of the Rennes Commercial Court, which had ordered a 24-month notice period as compensation for the damage suffered as a result of the brutal termination of commercial relations, on the grounds (...)

The dispute is unusual enough to attract attention: Volkswagen Bank complained about the significant imbalance resulting from clauses in the contract of a bodybuilder who claimed and obtained in the first instance an award of 167,299.20 euros (including VAT). Volkswagen Bank had been late in (...)

The Constitutional Council ruled that the prohibition of an unrequited benefit is not contrary to the Constitution and opens the door to judicial review of the contractual balance. After the significant imbalance which was the subject of two preliminary questions of constitutionality (DCC n° (...)

A transport service provider invoked a commercial relationship dating back to 1978 and complained that it had been severed. The Paris Court of Appeal dismissed the case on the grounds that there was no indication that the parties had intended the commercial relationship formalized in 2007 to (...)

The Paris Court of Appeal, on referral from the Court of Cassation on March 29, 2017, had ruled that dispensing pharmacists who had opted for the SRA pursuant to Article D. 5125-24-1 of the CSP could claim the communication of GTCs reserved for dispensing pharmacists (Pyxis Pharma / Cooper), (...)

The annual report of the DGCCRF is an opportunity for the armed wing of the Ministry of the Economy to take stock of its action to protect the consumer on the one hand, but also to ensure the fairness of commercial relations between professionals. Restrictive competition practices are a sector (...)

Eurelec Trading, a cooperative company under Belgian law created in 2016 between the Leclerc supermarket chain, a cooperative of merchants of French origin, and the Rewe group, a cooperative of merchants of German origin, operates as a central purchasing office for supermarket products for the (...)

The fruit and vegetable supplier Esnault Euro Fruits challenged the conditions under which some fifty Leader Price stores operated by 36 separate Leader Price franchisees had broken off commercial relations. Its claim, initially directed against Leader Price Exploitation and Distribution (...)

Another decision of the Court of Cassation on the imbalance between parties belonging to the distribution sector and whose litigation for once has not been initiated by the Minister of the Economy. This is perhaps the beginning of the recognition of the universal scope of the prohibition of (...)

The facts are revealing of the difficulty of applying the rules of Title IV of Book IV in certain situations, to business life. The company Plaisir Sélection bought a company from the Auchan group specialized in the marketing and export of wines to Japan. In 2008, it entered into a two-year (...)

This case is emblematic because it concerns a case in which the Minister had initiated an action to censor two contractual clauses imposed on suppliers, against an industrial company that markets electric turbines: GE Energy Product France. The Court of Appeal of Paris, in a decision dated (...)

The Concept company had been a Xerox dealer since 2007, under successive three-year renewable concession contracts. The dealer sold Xerox equipment and provided its customers with maintenance services by Xerox under a subcontracting agreement with Xerox. During 2015, and therefore during the (...)

This action was brought by the Minister of the Economy who in February 2018, had summoned both Google Inc (now Google LLC), Google Ireland Limited, Google Commerce Limited and Google France before the Commercial Court of Paris. After investigation, the Minister considered that seven clauses (...)

The cases follow one another but are not all alike, including for the digital giants. Condemned by the Commercial Court of Paris for brutal rupture of commercial relations, the company Google Ireland won its case before the Court of Appeal of Paris. The case was against the company Ulysse (...)

This decision is part of a movement to apply the significant imbalance provided for by the French Commercial Code more broadly than it had been up to now, by moving away from the usual framework of large-scale food distribution, which was decided by the specialized courts. **An unfavorable (...)

This case is remarkable in two respects: on the one hand, on the scope of application of the significant imbalance, which is definitely applicable to areas other than that of supplier-distributor relationships; on the other hand, on the compensation for the damage that may result from the (...)

La SAS Syngenta France a fait l’objet, au titre de la période du 1er janvier au 30 juin 2016, d’un contrôle par les services de la direction régionale des entreprises de la concurrence, de la consommation, du travail et de l’emploi (DIRECCTE) d’Occitanie concernant ses délais de paiement à (...)

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 (...)

The task of the Payment Periods Observatory is to carry out monitoring, analysis and studies on subjects relating to payment periods for businesses. It may also be consulted by the Minister for the Economy on these issues. It brings together the main professional federations, the major (...)

Cette rubrique Livres recense et commente les ouvrages et autres publications en droit de la concurrence, droit & économie de la concurrence et en droit de la régulation. Une telle recension ne peut par nature être exhaustive et se limite donc à présenter quelques publications récentes (...)

This decision marks a strict but logical approach to the concept of significant imbalance between professionals when the prohibition provided for by the Commercial Code is invoked outside the retail sector. The now old facts can be summarized as follows. The company Avenir Telecom, which (...)

The ordinance amends the Commercial Code on the form of agency contracts known as NIPs (Art. L. 441-4, VII and L. 443-2, I. para. 2 C. com.), on payment periods for perishable agricultural and food products which may not exceed 30 days after the date of delivery or, in the case of periodic (...)

The Paris Court of Appeal considers that a pharmaceutical laboratory is entitled to have different general terms and conditions of sale for orders from purchasing pooling companies ["SRA"] and pharmaceutical purchasing groups ["CAP"] and that the practice of retail pharmacists consisting of (...)

In order to upgrade the rules governing digital players operating in the internal market and to improve the regulatory framework for digital services, on December 15th, 2020, the European Commission published two legislative initiatives: the Digital Services Act (DSA) and the Digital Markets (...)

Carrefour had broken off commercial relations after learning through an internal investigation that its buyer had agreed to reference a supplier, I2C, following various advantages including a pleasure trip. The Paris Court of Appeal confirmed the decision of the first judges, stressing that (...)

Saint Gobain emballage, which has become Verallia France ["Verallia"], specialises in the manufacture of glass bottles intended in particular for the wine sector, and since 1990 has entrusted the distribution of its products to the agricultural cooperatives Alsace Appro and Appro du Piémont. (...)

The Paris Court of Appeal ruled that failure to comply with the transparency rules imposed by Articles L. 441-3 et seq. 441-3 et seq. of the Commercial Code in the version applicable to the facts of the dispute, constitutes not only a criminal offence, but also a violation of the provisions of (...)

A law firm asked the CEPC for its opinion on the scope of application of the increase of the resale at loss threshold resulting from the ordinance n° 2018-1128 of 12 December 2018 taken in application of the EGALIM law. The CEPC considers that the increase of the resale at a loss threshold (...)

This very rich judgment, which rules on both significant imbalance and the reality of services rendered, should be read with care, as it seems to open the door to a stricter approach to the notion of negotiation allowing the failure of significant imbalance. In this case, a supplier of the (...)

This set of articles is dedicated to the changes made to the French competition law by the DDADUE bill of December 3, 2020. Both the law on restrictive competition practices and the law on anti-competitive practices are affected by the necessary transposition of EU directives (directives (...)

Since 2006, Dalkia has had a commercial relationship with Isocalor Energie, a company specialising in HVAC engineering and thermal insulation. In 2017, revenue was reduced and Isocalor brought an action against Dalkia for abusively exploiting a situation of economic dependence, partially (...)

The Apodiss company was a service provider for the Cardinal Group in the real estate sector. This collaboration resulted in the creation of Cardinal Consulting, in which Apodiss took a 33% stake. In October 2005, a service agreement was concluded between the Cardinal Group and Apodiss, under (...)

The Paris Court of Appeal has made a surprising decision in a dispute between the company OC Résidences, a builder of individual houses, and the Minister of the Economy. One of its subcontractors, 3 J Charpentes, had complained to the Competition Directorate about the practices of its (...)

The Court of Cassation decides that a wrongful termination of a commercial relationship for failure to comply with the notice period must be compensated by the granting of the gross margin lost, regardless of the actual change in the victim’s turnover after the end of the relationship. As of (...)

As of June 1, 1998, Aluminium Pechiney concluded several industrial cleaning contracts with Daniel. Alteo continued this relationship in place of Pechiney until 2 September 2013, when it informed Daniel of the launch of a bidding procedure for a start date in January 2014. Daniel considered (...)

In a much-awaited decision, the Court of Cassation ruled in the Expédia online hotel reservation platform case, and in particular on the various points raised by the Paris Court of Appeal’s decision, which had annulled the parity clauses and the last available room in a didactic decision that (...)

Following the publication of the report of the committee of inquiry and using the economic crisis and the price war announced by some retailers as a pretext, a group of majority MEPs aims to "put more ethics in the definition of the fair price between the agricultural and non-agricultural (...)

Article 3 of the Ordinance of 12 December 2018, taken in application of the so-called Egalim law (2018-938 of 30 October 2018 for balanced trade relations in the agricultural and food sector and healthy, sustainable and accessible food for all), provides since 1 January 2019 that the (...)

A small reminder on the relationship between prescription and billing rules is given by the Court of Cassation in a ruling that will be published in the Bulletin. The facts were simple, a Hydroc company carried out three studies in March 2008 and October 2009 following quotes sent to its (...)

A non-specialized court shall hear a claim for damages arising from the termination of a transport contract for a fixed period of two years, renewable by tacit agreement, before the end of the contract with immediate effect. The Court of Appeal had held that the commercial relationship had (...)

This judgment confirms the Court of Cassation’s practical approach to the conditions under which a party may be exempted from giving notice proportionate to the duration of the commercial relations. In the present case, the company The machining and metallization department (Sum) had been (...)

The significant imbalance in its initial wording and in the wording applicable since the Order of 24 April 2019 presupposes a precondition: the submission of one partner by the other contracting party to this imbalance. Indeed, while the Order has removed the reference to the "trading (...)

The Paris Court of Appeal upheld the conviction of Carrefour, which had severed commercial relations with one of its suppliers without warning. A cooperative had been supplying ED and then Dia within the Carrefour group since 1996 after various legal restructurings. In 2014, the cooperative (...)

After having put the project out to consultation, the Minister for the Economy published, in the JORF of 21 December 2019, Decree No 2019-1413 of 19 December 2019 relating to the list of consumer products mentioned in Article L. 441-4 C. com. This decree comes into force on 22 December 2019 in (...)

In a judgment on the abrupt termination of commercial relations between a logistics service provider (Dinadis) and its principal (Externis), the Paris Court of Appeal upheld the application for judgment on the ground that the notice period was insufficient and awarded Dinadis compensation with (...)

An expert in car valuations worked with the auction company Artcurial. After founding a Rarecars company, he continued the relationship with this auctioneer’s company through him. After seven years of collaboration, Artcurial decided to terminate the contract. The expert first tries to have (...)

The significant imbalance in its initial wording and in the wording applicable since the Order of 24 April 2019 presupposes a precondition: the submission of one partner by the other contracting party to this imbalance. Indeed, while the Order has removed the reference to the "trading (...)

A fine of 1 500 000 euros has been imposed by the Provence-Alpes-Côte d’Azur regional directorate of companies, competition, consumption, labour and employment (DIRECCTE) on the company SAS Colis Privé for late payment of its suppliers’ invoices. A fine of 1 600 000 euros has been imposed by (...)

After an investigation initiated in 2015, the French Minister of the Economy brought a quasi-tort liability action against three companies of the Amazon Service Europe group, Amazon Payments Europe and Amazon France Services (APE, ASE AND AFS) for practices observed during commercial relations (...)

Beverage suppliers complained about the new financial conditions adopted by the Wane group from 2015 to be remunerated for the installation of beverages in its refrigerated cabinets. The monthly billing per door was significantly higher than in the past. The Wane group, which had several (...)

It is a long battle that seems to be turning to the advantage of dispensing pharmacists who had opted for the SRA pursuant to Article D. 5125-24-1 of the CSP. The SRA is unique in that it is made up of dispensing pharmacists and acts on behalf of member pharmacies. In the present case Pixis (...)

The species was quite original and deserves a little explanation. A castle in the Bordeaux region (Chateau Baret) had been in a commercial relationship with a merchant for about thirty years without any reason to change it. The 2009 vintage will be a casus belli between the parties. The (...)

This judgment is very significant because it was handed down in a relationship between a manufacturer and its suppliers and not between a distributor and its supplier. In the present case, GE Energy Product France (GE EPF) is a major manufacturer of medium and large gas turbines which was the (...)

The transparency of negotiations in distribution networks is a source of major disputes sometimes linked to the notion of mandate between the network head and the members. The Court of Cassation in a dispute between a Bricorama franchisor and its franchisee approved the Paris Court of Appeals (...)

This case is quite revealing of the difficulty of including in the termination of commercial relations the notion of industrial relations within a group. In the first years of application of the text, the case law was fairly flexible with the victims and accepted that they could include in the (...)

The case involved a former Renault agent and his counsel, who himself had succeeded a Renault subsidiary. Indeed, in 2009 Renault had sold a branch to an independent dealer who had retained the Renault agents, the Renault agent and Dacia in place since 1980 in the contract territory. The new (...)

For a complete and detailed study of the reform, read also the proceedings of the conference "The rewriting of Title IV of Book IV of the Commercial Code", organised on 4 April 2019 in Nanterre, under the direction of A.-S. Choné-Grimaldi, Revue ConcurrencesN° 3-2019, www.concurrences.com. (...)

The directive on unfair commercial practices in business-to-business relations within the food supply chain was adopted after much hesitation and multiple phases of negotiations (for the historical Emilie Prouzet at the conference "La réécriture du titre IV du livre IV du code de commerce", (...)

The proposal for a directive on unfair commercial practices in business-to-business relations in the food supply chain presented on 12 April 2018 included a number of prohibited clauses (Concurrences n° 3-2018, Art. n°87606, pp. 119-120 J.-L. F.) During the trialogue negotiations, an agreement (...)

The Comité national de sécurité des usagers (CNSUE) is an association under the law of 1901, approved by the public authorities, which issues electricians with certificates of conformity for electrical installations. After having outsourced its IT service to a service provider, the Committee (...)

See also this issue, under "Practices", C. Grimaldi, Price Control in Distribution Contracts: Controlling the Evolution or the Level of Prices? Opponents of the significant imbalance introduced in the Commercial Code in 2008 had placed high hopes on the QPC transmitted by the Court of (...)

In a somewhat original case, the fund judges had ordered the beneficiary of the transferred contract to pay an indemnity but had not attached to this amount the penalty provided for by the C. com. The Court of Cassation refused to allow the intermediary’s appeal because "the provisions of (...)

The Order of 1 December 1986, by repealing the Orders of 30 June 1945, led to a profound overhaul of competition law, on the one hand, by establishing the principle of freedom of prices and competition and entrusting the Competition Council with the task of sanctioning anti-competitive (...)

Shopping centre leases often require the lessee to join a merchants’ association, the purpose of which is to promote the centre. In order to challenge certain clauses of the statutes, lessees have had the idea of having certain statutory clauses invalidated on the grounds of freedom of (...)

Article 15 of the Act empowers the Government to take by ordinance, within four months of the publication of this Act, any measure falling within the scope of the Act and falling within the scope of the Com. com. necessary to provide for a period of two years : To apply a coefficient equal to (...)

In a dispute between them and the Minister of the Economy, Interdis and Carrefour had convinced the Paris Commercial Court to ask two priority questions of constitutionality: one on the significant imbalance (Art. L 442-6 2° C com.) and the other on the annual agreements (Art. L 441-7) (see (...)

The Commercial Chamber of the Paris Court of Appeal had issued a ruling on the punishment of false commercial cooperation and had sentenced a distributor (Système U) at the request of the Minister of the Economy to reimburse the full amount of the commercial cooperation it had received from (...)

The Paris Court of Appeal has applied the established case law limiting the challenge to the validity of an arbitration clause in a case that is nevertheless original in the context of the review of the order for enforcement of an arbitral award. A Subway franchisee in Narbonne was opposed to (...)

The Minister of the Economy has referred a request to the Paris Commercial Court, under Article L 442-6 I 2° prohibiting significant imbalance, for a ruling against the companies in the Carrefour group for attempting to impose an additional distribution discount as a precondition for (...)

The parliament is examining a bill aimed at strengthening control over the establishment of large supermarkets. Article 1 reduces the threshold of sales area to 400 m² as opposed to the current 1 000 m², above which authorisation is required for any creation or commercial extension in the (...)

These two judgments, handed down on the same day and promised for publication, deal with the relationship between a lawyer and his professional clients and confirm that the ordinary law on payment periods also applies to regulated professions. Both cases involved disputes between a lawyer (...)

Interview conducted by Jean-Louis Fourgoux, Partner, Fidal, Paris. Daniel Fasquelle, you defended a doctoral thesis on the rule of reason in European competition law before becoming a professor of law and, since 2007, Member of Parliament for Pas-de-Calais. You are also a holder of the CAPA. (...)

French law on practices restricting competition is being emulated. France is often singled out for its abundant regulations designed to preserve the precarious balance between suppliers and distributors. This trend is not about to be reversed, particularly in the agricultural sector. The (...)

The Court of Cassation censors on a plea raised ex officio the courts of appeal and the non-specialized commercial courts which rule on claims falling within the limitation of jurisdiction. The Commercial Chamber points out in this case that the Basse-Terre Court, which was itself devoid of (...)

Since the law on the modernisation of the economy, known as the LME of 4 August 2008, the payment periods agreed between the parties to a contract between professionals have been capped. These contracts may not provide for payment periods that exceed the legal ceilings: 60 days net from the (...)

Article L. 442-6-I-2° C. com. which prohibits "subjecting or attempting to subject the trading partner to obligations a significant imbalance" could be presented as a safeguard against the purchasing power of mass distribution. The first decisions of the Paris Court of Appeal, a specialized (...)

The first case concerns Club Opticlibre, a central purchasing body in the optical sector, bringing together independent opticians, which acquires products in order to resell them to its members on the basis of the commercial terms negotiated with suppliers, and Alliance Optique, carrying on (...)

The identical double disciplinary censure by the Court of Cassation of the Courts of Appeal of Versailles and Montpellier in less than a month is indicative of a certain ignorance by the judges of the merits of Article L. 441-6 C. com... The facts were quite similar in both cases. In the (...)

This case marks the confirmation of the Caterpillar-CMI jurisprudence (Cass. com., Feb. 12, 2013, J-L. F), which states that a sudden break in the market presupposes a decision by the author and not a simple passing on of a market downturn, but goes further by specifying that the provider who (...)

This judgment underlines the complexity of business life and the delicate borderline between tariff negotiations and practices restricting competition. The company Jonction 3B was the supplier of textile articles to the company Alinéa France (the company Alinéa), since July 29, 1999. In May (...)

Several companies of the Cafom Group, which operates furniture distribution stores under various trade names, have entrusted the transport of goods for more than 20 years to a freight forwarder (the Somatrans company). When they discovered that Somatrans had invoiced its subcontractors for (...)

In the context of a dispute between the national central company Système U and the Minister for Economic Affairs and Finance, the latter raised the unconstitutionality of the interpretation of Article L 442-6III of the Civil Code, thereby, according to Système U, violating the principle of (...)

In a contract dated 21 August 2012, the G6 alliance entrusted, after a call for tenders, the exclusive handling of the ships of the shipowner companies of its grouping at a terminal in the Port of Le Havre to the company TN. On 5 August 2016, the Grouping informed its service provider of its (...)

In this case, a former franchisee of the Bricorama network left the network to join the Weldom network. In the context of the dispute which arose with Bricorama following his departure, that former franchisee demanded payment of end-of-year discounts from Bricorama and documents justifying the (...)

The Court of Cassation ruled, in a case not involving mass distribution, on Article L 442-6 I 2°, which refers to the fact of "subjecting or attempting to subject a trading partner to obligations that create a significant imbalance in the rights and obligations of the parties", and sets out (...)

The Court of Cassation, in the context of relations between a laboratory and pharmacies, recalls the need for suppliers to establish the categorical conditions of sale on the basis of objective criteria. In this case, a pharmaceutical company had brought before the Paris Tribunal de Grande (...)

Payment periods are subject to mandatory regulations for certain products or services such as the sale of live cattle and fresh meat for which payment must be made within twenty days following the day of delivery, the sale of perishable food products for which payment must be made within (...)

The Court of Cassation considers that a non-competition clause which only covers the territory initially entrusted to a commercial agent is not applicable if this territory has been modified three times without amendment. Morality either it is a resurgence of the notion of cause in the (...)

The DGCCRF is no longer solely in charge of investigations - even if the control of practices has been very sustained (in 2016, DGCCRF agents carried out 13,356 control actions concerning the balance of trade relations) - but now has the power to impose administrative sanctions, extended since (...)

For the Court, it is important for the person claiming to be a victim to prove that the break-up is attributable to him or her. The judgment adds that the supplier cannot hide behind the unbalanced balance of power, nor the fact that most of the discussions were oral. This decision deserves to (...)

The third edition of “Entretiens de la concurrence”, focusing on the new economic and legal opportunities before ordinary courts, aimed to emphasise on the specific nature and assets of those jurisdictions in competition law. Having to implement competition law rules in a globalized economy, (...)

In that judgment, the Paris Court of Appeal was asked whether a succession since 1998 of seasonal commercial leases granted by Pierre et Vacances to ATS for the operation of several mini-markets within holiday resorts could be subject to the provisions of Article L. 442-6, I, 5°. In 2011, (...)

The somewhat tangled facts of this case will lead the Court of Cassation to issue a ruling of principle that is promised to be published. The Rubis company had contracted with the insurance company Allianz vie, a credit institution and the association Groupement de prévoyance des armées (...)

The Bigard Group ended its commercial relations with a service provider, Nordesosse, after two months’ contractual notice, as it had not obtained social label certification following an audit by Veritas. The Court of Cassation agreed with the trial judges, who noted that the purpose of the (...)

H&M contested the behaviour of its lessor on the grounds of a fault during negotiations for the renewal of a commercial lease, but also on the grounds of the significant imbalance to which the lessor had attempted to subject it during those negotiations. The Commercial Court of Paris had (...)

At a time when the extensive application of Article L. 442-6 I 5°) is being criticised for undermining the ability of businesses to adapt, this ruling confirms the essential protection of economic partners, including those outside the food distribution sector, so that greater fairness in (...)

This is an important practical issue that the Court of Cassation seems to rule in favour of greater protection for evicted partners. One carrier (Marchal) had a two-year contract with a lighting company (Eclatec) and terminated it after 5 years and then stopped all commercial relations with (...)

The Court of Cassation seems to be shifting somewhat from a direction that had reduced the notion of an established commercial relationship to situations in which several companies succeed one another. The facts are fairly traditional. A communications agency provides design and publishing (...)

The question of the seniority of trade relations is becoming increasingly complex. The Court of Cassation has already suggested that each commercial relationship within a group should be treated independently in the absence of consultation between the various entities (Cass. com., 6 Oct. 2015, (...)

The facts are fairly traditional, since they are between an exclusive dealer, Bénéteau, which since 1992 has been marketing the manufacturer’s range of boats under a contract, the last of which was not renewed for five years. The licensor, in order to do so, sent a notification within the (...)

This is a censorship judgment which was handed down by the Commercial Chamber in a case where the Lyon Court of Appeal had, in application of the principle of specialisation, refused to examine an appeal against a judgment handed down by the Lyon Commercial Court before the entry into force of (...)

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 (...)

The company International Esthétique operated a franchise network under the Epil center banner. The contracts contained a clause prohibiting the creation of a competing network with post-contractual effect. During the course of the contract, the franchisor had substituted its brand name with (...)

This decision, which includes other rather questionable answers on the procedure before the Competition Authority (respect of the adversarial process...), was issued in a dispute between Google and an advertiser who contested the termination of its Adwords contract on the grounds that the (...)

After an extensive interpretation of the notion of established commercial relationship, the Commercial Chamber of the Court of Cassation seems to want, with precautions, to give the impression of returning to a stricter and more literal application of the specific text. The facts of the case (...)

An installation company collaborating with Castorama contested the termination of business relations, accusing the distributor of abuse of economic dependence and brutal termination. The Court dismissed the allegation of anti-competitive practices on the grounds that many retailers, not just (...)

Very detailed decision on the delimitation of the market which leads to a dominant position of NGK but which nevertheless considers that the distributor who is the victim of a refusal to sell has alternative solutions and that NGK’s products are easily accessible to consumers on the French (...)

The Court, in accordance with settled case-law, verifies whether the contractual period of notice, which is respected, is sufficient in view of the nature of the activity and the duration of the relationship, and dismisses the claim based on interprofessional use in the absence of evidence of (...)

On the occasion of a rather banal dispute between a supplier of wood paneling (the company Isoroy) and a customer, the Commercial Chamber of the Court of Cassation took the opportunity to issue a landmark decision on late payment penalties, which was published. The Isoroy company had obtained (...)

This ruling is a very firm call to order imposed by the Commercial Chamber on the Douai Court of Appeal and a lesson for all non-specialist courts of appeal. Indeed, cassation on a plea raised ex officio is a matter of principle and has no real impact on the case, other than the complexity of (...)

Without hesitation, the Court verifies whether the breaches are sufficiently serious to deprive the general agent of a notice period proportionate to the duration of the commercial relations in application of Article L 442-6 of the Commercial Code. In this case, the failure to pay the bonuses (...)

In a ruling dated 1 July 2015, the Paris Court of Appeal, on appeal by the Minister of the Economy, accepted that Article L. 442-6-I-2° of the French Commercial Code is applicable to end-of-year rebates. The implementation of this rule was challenged in principle by the distributor on the (...)

In two notices published on 23 June 2015, the Trade Practices Review Commission had to rule, at the request of undertakings, on the compliance of pricing practices with the law. In one case, the Commission was questioned on the rate of remuneration practised by a business introducer, up to 50 (...)

This is the first time that the High Court has ruled on the notion of significant imbalance since the controversial introduction of this text into the Commercial Code by the LME Act of 4 August 2008. The position adopted clearly supports the Paris Court of Appeal, a specialised court whose (...)

In this judgment, which is to be published in the Bulletin, the Commercial Chamber clarifies the conditions under which the termination of commercial relations may be contractualized and organized by the parties. Ikea has appealed to the Cour de Cassation against a decision of the Paris (...)

To learn more about this case, click on Reference above.

In a Communication of 15 July, the European Commission set out its Action Plan to combat unfair commercial practices ("UCP") in the food supply chain, which largely advocates the use of self-regulation. In view of the very different negotiating powers of the actors in the food supply chain (...)

Unsurprisingly, the European Court of Justice (CJEU) recalled on 10 July that the rule it keeps hammering home, according to which Member States must not prohibit by operation of law practices not listed in Annex I of Directive 2005/29/EC, known as "unfair commercial practices" (Directive of (...)

Trib. com. Paris, 6 June 2014, Ethical Coffe c/ Nespresso, RG 2012077904 Ethical COFFEE which is a manufacturer of compatible capsules for NESPRESSO machines, put on the market as from 2010, considers itself victim of anti-competitive and unfair practices from NESTLE NESPRESSO, consisting in (...)

In this case, a company has a commercial relationship with a business agent. The latter claims the status of business agent, and not obtaining satisfaction, sues the company for damages, including termination of the relationship. For its part, the company attributes the termination of the (...)

CA Paris, March 18, 2014, RG no 12/13601, Sept de Coeur c/ Babybjörn In the present case, a French company, SARL Sept de Coeur, was entrusted in 1985 with the exclusive distribution in France of the childcare products of the Swedish company Babybjörn AB. Babybjörn AB terminated this contract (...)

The contributions of the Hamon law: One step forward, two steps backward The law relating to consumption, known as the "Hamon law", adopted on 13 February 2014 by the National Assembly, then validated, for the most part, by the Constitutional Council on 13 March 2014. (No 2014-690DC), was (...)

In a ruling handed down on October 22, 2013, the French Supreme Court of Appeal censured the Montpellier Court of Appeal, which had ordered Areva to pay compensation to its logistics provider for the abrupt termination of an established commercial relationship, not on the principle but on the (...)

The Court of Appeal considered that ’the Minister for the Economy rightly maintains that, in the present case, by attempting to subject its suppliers to an obligation to repay the sums which the Commercial Court had ordered it to repay to them by way of recovery of sums unduly paid, GALEC has (...)

The Commission d’examen des pratiques commerciales (CEPC) has been asked by several organisations representing hotel professionals to examine the conformity with competition law of various contracts concluded with the companies operating the main hotel reservation sites. After dealing with the (...)

In 2004, Aprest, the central purchasing office of a food supply group, awarded a contract to a supplier to supply a catering clientele affiliated to this group. The listing contract provided that ’in consideration for the priority given to suppliers and the services provided by Aprest in (...)

The dispute between a partnership of several lawyers and a supplier of photocopiers and a finance company with which it had entered into a long-term lease led the Paris Court of Appeal to hand down a very interesting ruling on 7 June 2013 regarding the rule in Article L. 442-6-I 2° of the (...)

A dispute arose between a dispensing pharmacist and his drug supplier over the agreed commercial terms criticized because of the wholesaler’s demand for interest at the rate of 6% to reimburse unpaid invoices. The Versailles Court of Appeal dismissed the claim of abuse of the state of economic (...)

Opinion No. 13-07 on late payment penalties was issued on 27 May 2013, following a referral from an international group which questioned the applicability of the late payment penalty rate in the context of an international contract. Article L. 441-6 of the French Commercial Code stipulates (...)

CA Paris, May 23, 2013, RG n° 12/01166 This very detailed ruling highlights the practical difficulties that may exist in the development of commercial relations between an industrialist and a major retailer. Green Sofa Dunkerque (GSD) has been supplying furniture to Ikea for the group’s (...)

CJEU (ord.), 7 March 2013, Euronics Belgium CVBA v Kamera Express BV and Kamera Express Belgium BVBA, case C-343/12 The list of unfair commercial practices declared incompatible with the Directive of 11 May 2015 (2005/291EC) is extended, this time burying the general ban on resale below cost (...)

http://legifrance.gouv.fr/affichJuriJudi.do?oldAction=rechJuriJudi&idTexte=JURITEXT000026742676&fastReqId=403567882&fastPos=1" target="_blank">Cass. Com, December 4, 2012, No. 11-21743. The liquidator of a supplier to the mass retail sector had initiated proceedings for abrupt (...)

Cass.com, February 12, 2013, No. 12-11.709. The Court of Cassation is starting to examine the first cases of termination of commercial relations following the economic crisis of 2008 and takes the opportunity to approve the judges on the merits who maintain a very pragmatic approach. The (...)

"Cass. com., November 20, 2012, No. 11-22660." A company specialising in the repair of household appliances (STPM) has been providing services for Bosch since 1986, first without a written contract, then through a succession of contracts, initially for an indefinite period and then for a (...)

Cass. com, Sept. 11, 2012, Carrefour c/ Jean-Marc Valensi, N° 11/14620 Delivered on the same day as another judgment concerning the same major retailer (Cass. com., n° 11/14608, Salins du midi hereafter), the Commercial Chamber of the Court of Cassation is moving forward step by step in (...)

Cass. com. September 11, 2012, Carrefour Interdis v/ Compagnie des Salins, n° 11/14608 The ruling handed down on 11 September 2012 by the Chamber of Commerce can only strengthen the suppliers of the mass distribution sector who, once evicted, take advantage of the legal recourse to obtain (...)

The specialisation instituted, for Article L. 442-6 of the Commercial Code alone, by the Economic Modernisation Act of 4 August 2008, has not been much criticised in itself. On the other hand, its too narrow implementation (8 Tribunals and a single Court of Appeal) decided by Decree No. (...)

In a very detailed judgment, the Versailles Court of Appeal applied an extensive analysis of the concept of an established relationship, considering that a commercial relationship initially entered into by 3 P Pred, a company responsible for commercial prospecting among dentists, with Sanofi (...)

As many disputes relating to an allegedly brutal termination are legion, those in which the former prohibition of abuse of the relationship of dependence set out in point 2 b of the same article L. 442-6-I is invoked are rare. It is true that these two rules are used with unequal success, as (...)

This is a new important stage in the war between the Minister of Economy and the major distributors, which had given rise to some media hype since the Minister of Economy, at the time, had announced that he had taken legal action against nine distribution companies, including Darty. A first (...)

The Paris Court of Appeal has just handed down one of the first landmark decisions on listing premiums in the contract catering sector. The contract provided that "in return for the priority given to suppliers and the services provided by Aprest in setting up supplies", the supplier would pay (...)

A distributor of Kronenbourg beers in the French Overseas Departments and Territories considered himself the victim of a brutal break-up by the Kronenbourg Company. He claimed that despite a letter of June 2004, in which the subsidiary of his supplier implied that the contract would not be (...)

The judgment of the Court of Bordeaux is significant because it completely reverses the solution adopted by the first judges and makes a detailed assessment of the parties’ conduct in order to rule out any abrupt break in commercial relations. The case brought against SDV: exclusive (...)

Law No. 2012-387 of 22 March 2012 on the simplification of the law and the simplification of administrative procedures, JORF No. 71 of 23 March 2012, p. 5226. The framework for payment periods was strictly regulated by the LME law, which was intended to lead to a reduction, by 1 January 2012 (...)

As is well known, the autonomous procedure under Article L 442-6 of the Commercial Code still gives rise to considerable debate and the summonses issued by the Minister against distributors trigger an armada of challenges. While some courts allow the applications (see T. com. Lille, 6 January (...)

23,313,681 for transactions considered to correspond to advantages without consideration (Versailles, 29 October 2009, Minister of the Economy v. GALEC, Revue Lamy de la Concurrence, 2010, No. 22; the Versailles Court of Appeal submits to the case law of the Court of Cassation), he intends not (...)

Cass. com, 18 October 2011, Minister of the Economy v/ GALEC, No. 10-28005 Cass. com. 18 October 2011, Minister of the Economy c/ Carrefour, n° 10-15296 The first judgment (No. 10-28005) does not merely decide a procedural question relating to the competent court; it also highlights the (...)

As part of a national survey, the CFRB reviewed the contracts entered into in fiscal year 2006 between the retail groups and their suppliers. During this survey, it focused in particular on the partnership agreements entered into between the Carrefour group and sixteen of its suppliers, and (...)

Cass. com, January 31, 2012, Paris modes éditions c/ A Prime Group, n° 11-12899 A broadcaster that edits a television channel had entrusted the production of programs to two companies. It notified them that the programmes would no longer be broadcast in the next season, due to falling (...)

The facts of these two cases are relatively old: in 2005 and 2006, DGCCRF investigators carried out checks on commercial cooperation contracts in several Leclerc supermarkets and hypermarkets. They drew up a report from which it emerged that many commercial cooperation services, in particular (...)

A travel agency found that, under strictly equivalent conditions, the ticket prices of the airlines British Airways and Emirates from London were approximately 400 euros lower than those offered by those two airlines from Paris. At the time, the agency had booked air tickets from London for (...)

Cass. com, October 4, 2011, Gefco c/ Frigo 7-Locatex, n° 10-20240 It is by a ruling of principle that the Court of Cassation dismisses the application of Article L. 442-6 of the Commercial Code in favour of the period of notice provided for in the standard transport subcontracting contract. (...)

Cass. com, 20 September 2011, YF c/ Habitat France, n° 10-15750 The Habitat distribution group has had its catalogue formatted and printed for many years by a specialist company, outside the strict contractual framework. Following a reorganisation, Habitat informed its publisher of its wish (...)

Cass. com, September 6, 2011, Racer v. Decathlon, No. 10-30679 The supplier of a large specialised retailer after complaining of a significant drop in orders was deregistered after six months’ notice. He then brought an action for damages against his customer, whom he claimed had abruptly (...)

Cass. com, 6 September 2011, Lesaffre v/ Commercial Company of Siam and Denis frères, No. 10-11975 A company specializing in the manufacture and sale of yeast had established relations with a French import-export company for the distribution of its products in Thailand through a local (...)

Jean-Marc Valensi, a jewellery manufacturing company, has had regular commercial relations with the Carrefour-Promodes group since 1990 and has participated in the development of the "Manèges à Bijoux" in Carrefour stores. In February 2003, the Carrefour group informed Jean-Marc Valensi of its (...)

CE, 10 June 2011, Ordre des avocats au barreau de Lyon e.a., n° 335584, 335593 and 335595 The Bar Associations of Lyon, Strasbourg, Toulouse, Lille, Rennes, Colmar and Mulhouse have asked the Council of State to annul for excess of power Decree No. 2009-1384 of 11 November 2009 relating to (...)

The papers gathered in this section devoted to significant imbalance in the parties’ rights and obligations study, not only the rule in itself from a theoretical and practical point of view and the consequences of the French Constitutional Court’s decision, but also in its links with other (...)

CA Paris, 23.03.11, G.I.E. Accorequip and Accor Paris v. Minister of the Economy and Transfer, 07/07337 The Paris Court of Appeal considers that the use of a call for tenders may constitute a sham of competition and reveal a discriminatory practice intended to conceal a sudden break in (...)

A firm of property administrators had been managing a property complex in Marseille for 30 years, following various contracts. The owner, due to an overall overspending of more than 25% over the validated budget, expressed his strong dissatisfaction and asked the manager to make a claim. (...)

This judgment is part of an extensive interpretation of Article L. 442-6-I-5° since it allows its application in a dispute between an audiovisual production company and a television channel devoted to horse racing (EQUIDIA). While the audiovisual producer had been entrusted with various (...)

In its ruling of January 19, 2011, the Paris Court of Appeals heavily sanctioned a distributor whose commercial relations with one of its suppliers had deteriorated to the point of total breakdown. Since 1974, Compagnie des Salins du Midi had been supplying at least the PROMODES hypermarkets, (...)

This decision was eagerly awaited, and not only by lawyers practicing distribution law. Its starting point dates back to October 2009, when the Minister of the Economy initiated eight proceedings before various commercial courts against distributors to have this or that clause in the contracts (...)

The company Villeroy et Boch had a stand contract and operated a sales area within Le Bon Marché which, after 14 years, was subject to a contractual renewal providing for 6 months’ notice in the event of termination. A year and a half after this renewal, Le Bon Marché terminated this agreement (...)

This important decision of the Constitutional Council underlines the contributions of the "Priority Constitutionality Question" (PQPC) in all areas of law, including economic law. In this case, on 17 June 2010, the Criminal Court of Tours, in proceedings relating to the resale of a product at (...)

As in the case decided on 28 October by the First Chamber of the Paris Court of Appeal (see above), the panel ruling in summary proceedings proceeded to a strict interpretation of EC Regulation 44/2001 in order to exclude the jurisdiction of the judge hearing summary proceedings in a dispute (...)

This decision underlines the will of the Paris Court of Appeal to give the litigation of the abrupt termination of commercial relations a contractual qualification and thus to move away from the approach of the Commercial Chamber of the Court of Cassation, which advocates the qualification of (...)

This set of 3 articles concentrate on the issue of terms of payment as provided by the LME Act. The first contribution deals with the conformity of the French regime with regard to the EC Directive of the 29 June 2000. This study tries to shed light on this problem and in particular on the (...)

Introductory remarks Laurence Idot Professor, Universtité Paris II, European College Director of the Scientific Committee of Concurrences Madam President, Ladies and Gentlemen, Dear friends, As the afternoon is busy, I will not go into the substance of the colloquium, but on behalf (...)

Since 1996, in French restrictive trade practices law, a written notice proportionate to the duration of relationship is necessary before a complete or even a partial breakdown. This provision has been widely applied in a protective way by the case law, both on the notion of "established" (...)

Whereas in the enforcement system of Articles 81 and 82 EC resulting from Regulation No 17/62, it was usual to distinguish between the application of these texts, on the one hand, by the Commission and, on the other hand, by the national authorities and courts, which led to a preference for a (...)

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