Mary-Claude Mitchell

Under what conditions does a transfer of assets or business lead to the continuation of a relationship previously maintained by the transferor with a commercial partner, and what control should the judge carry out on the length of the notice period subsequently granted by the transferee having (...)

Article L.442-1 II C. com. provides, as we know, that the fact of brutally breaking off an established commercial relationship engages the responsibility of its author. The question of its application to the liberal professions has been the subject of a number of decisions by the Cour de (...)

It is well known that the notice period granted in the event of termination of commercial relations must be carried out under the same conditions as those prevailing during the course of the contract (see for example Cass com, 10 February 2015, No. 13-26414). The decision of the Court of (...)

The contours of the notion of abrupt termination of established commercial relations have been established over time by case law. It is known that, in accordance with article L. 442-6-I-5° C. com. (now L. 442-1-II), a person who breaks, even partially, an established commercial relationship (...)

One recalls the judgements of 29 March 2017, in which the Court of Cassation reversed its case-law concerning the exclusive jurisdiction of the Paris Court of Appeal to hear disputes relating to the application of article L. 442-6 of the Covenant (see Concurrences No. 2-2017, commentary M.-C. (...)

What is the nature, whether contractual or tortious, of an action for the abrupt termination of an established commercial relationship, and does the fact of bringing an action of a contractual nature preclude the plaintiff from relying on the abrupt termination of an established commercial (...)

In this case, the parties were bound by one-year fixed-term distribution contracts in which no tacit renewal was expressly provided for. The Court of Cassation, noting that, on several occasions, relations had continued after the contract expired, before a new contract was signed, inferred (...)

In this case, the contract provided for an obligation on the part of the distributor to achieve a certain amount of turnover, as well as an immediate suspension of the performance of the contract in the event of a serious and flagrant breach of a contractual clause. The Court of Appeal had (...)

The abrupt termination of established commercial relations has been the subject of abundant litigation which, over time, has clarified, in particular, the concept of established commercial relations, the conditions of brutality, the reparable damage, and the procedural regime of article L. (...)

Under what conditions does the launch of a call for tenders constitute notification of the termination of established business relations and the starting point of the period of notice? This is the question answered by the Court of Cassation in its ruling of 14 February 2018. The case was (...)

The Court of Cassation adds a small stone to the edifice concerning the jurisdiction of the specialized courts and the Paris Court of Appeal for actions for abrupt termination of established commercial relations. One recalls the important reversal made by the Court of Cassation, in its (...)

This is what emerges, in substance, from the judgment of the Court of Cassation of 8 November 2017, which gave precedence to the text of Article L. 442-6-I-5° over the provisions of the contract that defined the failures of one of the parties, authorising the other to terminate it without (...)

The solution had already been laid down by the Court in a judgment of 3 April 2012 (Cass. com., 3 Apr. 2012, Etablissements Gabriel Boudier v Baron Philippe de Rothschild France distribution, no. 11-13527, commentary by Muriel Chagny, editor).). It is forcefully reaffirmed in this cassation (...)

The analysis is in line with the long-standing view that, on the one hand, the launch of a call for tenders is equivalent to notification of the breach and the starting point of the notice period (Cass. com., 8 Dec. 2015, No. 14-18228, commentary by Mary-Claude Mitchell, "The use of a call for (...)

Can the effects of Article L. 442-6, I, 5° C. com. be set aside on the occasion of the termination of an international distribution contract which provides for the applicability of foreign law in the event of a dispute? It is on this thorny issue that the judges of the Court of Cassation (...)

The solution, laid down in particular by the Paris Court of Appeal on 14 December 2016 (RG No. 16/22216), concerning the application of a new price scale by a manufacturer substantially modifying the commercial conditions between the parties, is applied here to the hypothesis of a modification (...)

The commented decision is an opportunity for the High Court to reconsider the terms and conditions for the termination of a distribution contract. It recalls here the importance of the contractual terms and the common will of the parties in organising the termination of commercial relations (...)

In a ruling of 11 May 2017, the Court of Cassation confirmed the new rules resulting from its rulings of 29 March 2017 (Comment M-C.M, Concurrences). It overturns a judgment of the Court of Appeal of Riom which had declared inadmissible the appeal against the judgment handed down by the (...)

In two rulings of March 29, 2017, the Court of Cassation reversed a well-established case law, which tends to submit to the Paris Court of Appeal alone all disputes relating (among other things) to the abrupt termination of established commercial relations. Articles L. 442-6-III and D. 442-3 (...)

The case, which was the subject of the Court of Cassation’s ruling of January 11, 2017, involved, among others, Société Impression, Xerox’s concessionaire for 17 years under several successive concession agreements, against which the latter had proposed a new division of the contractual scope (...)

In reaching that conclusion, the Court notes, first, that relations between the parties were not formalised by any contract, did not include any guarantee of minimum orders and that turnover was highly fluctuating depending on the year and the collection, and, second, that relations between (...)

As early as 2004, the Court of Cassation had ruled that the abrupt termination of established commercial relations can be established independently of any situation of economic dependence (Cass. com. 17 March 2004, No. 02-17575). It is even more clearly reaffirmed in its ruling of 16 (...)

Article L. 442-6-I-5°, as is well known, provides for a doubling of the minimum period of notice to be given by the perpetrator to the victim of a breach of established commercial relations, when the relationship relates to the supply of private label products. In the past, the Court of (...)

The case, which was the subject of the Court of Cassation’s ruling of 5 July 2016, involved Société Taurisson, BMW’s dealer, against whom the latter had notified its intention not to renew the contract, in compliance with the six-month notice period provided for by Regulation (EC) No 1400/2002 (...)

This case gave rise to two procedural episodes opposing Société L’Ammoniac Agricole, a supplier of anhydrous ammonia, to its purchasers. Initially, after this company sent them a letter in January 2010 announcing its decision to cease its activity at the end of the 2010 campaign and to (...)

To what extent can a central purchasing body terminate a food supply contract without notice because of problems with the quality of the products delivered? This is the question answered by the Paris Court of Appeal in its judgment of 10 February 2016. The case pitted Groupe Leclerc’s (...)

The conference that took place in Paris on 26th of June, 2015 provided the opportunity to return to the actuality of intellectual property law and competition law. Simon Corbineau-Picci and Pauline Debré open the debates about the rights and duties of the holder of an essential patent to the (...)

This solution is in line with that already put forward by the Cour de Cassation, which ruled out any suddenness of the break when a decrease in the turnover usually achieved with a subcontractor is explained by a decrease in the orders received by the client (CA Paris, 4 April 2013, RG n° (...)

The solution, put forward by the Court of Cassation several years ago, is now well established (see, for example, Cass. Com. 22 October 2013, Appeal No. 12-25992, ConcurrencesNo. 1-2014, pp. 97-98, comments by Jean-Louis Fourgoux).

The first judgment, of the Douai Court of Appeal, had declared inadmissible the appeal lodged before it in disregard of Decree No. 2009-1384, which gave exclusive jurisdiction to the Paris Court of Appeal to hear appeals concerning the termination of established commercial relations. The (...)

Can the business partner of the transferor of a business take advantage of the seniority of his relationship with the transferor when the transferee notifies the termination of the relationship? This is the question submitted to the Court of Cassation in the case that gave rise to its ruling (...)

As is well known, the selective distribution contract is based on the selection, by the head-network supplier, of resellers capable of ensuring a qualitative distribution of its products and on the reservation of the sale of the products to members of the network thus formed, by prohibiting (...)

Regular readers of this section are aware that the provisions of Article L. 442-6-I-5°, originally designed to rebalance commercial relations between mass retailing and its suppliers, relating to the sudden termination of established commercial relations, have seen their scope of application (...)

CA Paris, 29 January 2014, RG n° 12/08976, Cartier c/ Hanna Under what conditions may the supplier, as the head of a selective distribution network, terminate without brutality its commercial relations established with its authorised distributors? Such is the question submitted to the (...)

These are the lessons of the Court of Cassation’s ruling of 13 November 2013, which introduced two limits to the benefit of the provisions of Article L. 442-6-I-5° of the Commercial Code. The case was between a manufacturer of spare parts for the automotive industry, Le Joint Français (LJF), (...)

Actions, based both on the abrupt termination of established commercial relations and on the notion of a significant imbalance in the rights and obligations of the parties, are bound to develop. This is evidenced by the case before the Paris Court of Appeal involving Omnitrade and Poweo (...)

This article brings together contributions from the first panel of the AFEC’s General Assembly of 20 June 2013 in Paris dedicated to the competition class actions. INTRODUCTION Jacqueline RIFFAULT-SILK Counsellor, Commercial Chamber, Court of Cassation 1. The reforms undertaken in (...)

In so doing, the Court of Cassation dismissed the appeal brought by Société Diffusion Vente against the judgment of the Bordeaux Court of Appeal, which had ruled out any brutal severance of relations, considering sufficient the total duration of the notice period granted to the company, (...)

One recalls that the Limoges Court of Appeal ( February9, 2012, BMW France v. Taurisson, this review Concurrencesn° 04-2012, p. 100, comment M.-C. M.) had ordered BMW to compensate its dealer for not renewing its contract when it expired without giving notice. In order to do so, the Court (...)

CA Paris, March 7, 2013, Textile Assistance c/ Coopérative Groupements d’Achats des Centres Leclerc Gallec, RG n° 11/16439 While the notion of abrupt termination of established commercial relations has been the subject of numerous decisions concerning the purchase and distribution of (...)

Its position on the subject has varied over time (see this heading ConcurrencesNo. 4-2010, commentary M.-C. M.). On the other hand, the fact that the relationship continued, even if only for a few weeks, after the expiry of the notice period, obliges the breaker to give a new notice period (...)

CA Paris, April 4, 2013, Darty & Fils v MBCO, RG 10/02735 Statistically, there are few cases in which an action for abrupt termination of established commercial relations is not upheld, on the grounds that it is actually the plaintiff in the action who is responsible for the termination (...)

Cass. com, 25 September 2012, Appeal Nos. 11-24425 and 11-24627, France Télévisions v. Planète Prod. and Presse Planète The Court of Cassation has just handed down a ruling in the turbulent dispute that has been opposing France Télévisions to the company Planète Prod and its subcontractor, (...)

The case before the Paris Court of Appeal pitted the well-known company Louis Vuitton Malletier (LVM) against one of its suppliers, Seraphin, a designer and manufacturer of luxury skin clothing for men. Relations between the parties had been regular since at least 2001. In September 2009, (...)

Cass. com, 15 November 2011, Nike European Operations Netherlands v. Vanam, No. 10-25472 The notion of established commercial relations has been defined and refined over time by the Court of Cassation. It refers to a relationship, whether or not based on a written contract, which may take (...)

Litigation concerning the abrupt termination of established commercial relations, initially thought to concern mainly relations between suppliers and large retailers, has in fact had a much wider scope, since it has to date been illustrated in many other fields of activity, such as audiovisual (...)

Article L. 442-6-I-5° obliges, as is well known, anyone who intends to terminate an established business relationship to give prior written notice to his partner, taking into account the duration of the business relationship. Abundant case law has held in this respect that the launch of a (...)

Cass. com, 28 June 2011, TNT Express National v/ Topstore, No. 10-16867 Cass. com, 7 June 2011, Groupement d’achats des centres Leclerc (GALEC) c/ Textile Assistance, n° 10-12095 Numerous cases regularly arise in the context of litigation concerning the sudden termination of established (...)

Cass. com, 21 June 2011, Easyparapharmacie c/ Pierre Fabre dermo-cosmétique, n° 09-70304 Far from being impregnable, the "fortress" (according to A.’s expression. Pirovano, "Les transformations de l’ordre privé économique : l’exemple des réseaux de distribution sélective", in Philosophie du (...)

CA Paris, 23.03.11, Sagil v. Audemars Piguet France, 09/17149 CA Paris, 23. 03. 11, Alain Michal v. Audemars Piguet France, 09/17148 Are the provisions of Article 442-6-I-5° of the Commercial Code applicable to the termination of contracts of approved retailers motivated by a restructuring of (...)

The decision of the Paris Court of Appeal of 4 March 2011, handed down in a case opposing the Company Publiprint (now Figaromédia) and the Italian law company Studio Calcagno, is of interest to return to the twofold question of the seniority of the relations to be taken into account in (...)

CA Paris, ch. 5-5, 3 February 2011, Contracting and Trading Co Ltd v/ The Walt Disney Company, RG 08/18087 The contours of the various conditions contributing to the notion of abrupt termination of established commercial relations are enriched by case law. This is evidenced by the decision (...)

Cass. com, January 18, 2011, Startex v. Finot and Company, No. 10-11611 Breaking up for fault without notice or breaking up without fault with sufficient notice: you have to choose. This is, in a way, the lesson that can be drawn from the ruling of the Court of Cassation of 18 January (...)

Comparative advertising, which enables economic operators to compare their products and services with those of their competitors, is an important instrument for stimulating competition. It has as its limits both the protection of competitors whose products or services are being compared, and (...)

It is well known that whoever intends to break an established business relationship must, in accordance with Article L. 442-6-1-5° of the Commercial Code, give his partner sufficient written notice. The sufficient length of the notice period has been the subject of extensive case law, which (...)

1. You have just been elected to chair the International League of Competition Law (Ligue Internationale du Droit de la Concurrence - LIDC). You are the first woman to hold this position. Can you come back on your background, career and prior involvement in the League? 2. During the last (...)

Cass. com, 21 September 2010, Transports Graveleau c/ CFF, n° 09-15716 The field of transport has already been a major source of litigation concerning the abrupt termination of established commercial relations, which has been enriched by a ruling of the Court of Cassation on 21 September. (...)

Cass. com, 18 May 2010, Planète Prod et Presse Planète c/ France Télévisions and France 2, n° 08-21681 This is the question raised by the reading of the Court of Cassation’s decision of 18 May 2010. The case was between Société Planète Prod, a designer and producer of magazines, (...)

The interpretation of the legal conditions to which the notion of abrupt termination of established commercial relations is attached is clarified and enriched by the decisions of the judges on the merits of the case, under the careful supervision of the Court of Cassation. In this respect, (...)

The next LIDC Congress will be held in Bordeaux from 30 September to 3 October 2010. The Congress of the International League of Competition Law (LIDC) was held in Vienna (Austria) from 22 to 25 October 2009. Nearly 150 participants, including 7 Presidents and members of the Competition (...)

Cass. 1st civ. 24 September 2009, Panzani v. Saint John, n° 08-14524 Cass. com, 27 October 2009, SNFA c/ Jeudy Agriculture Service, No. 08-19396 As has already been pointed out, the requirement of sufficient advance notice is at the heart of the provisions of Article L. 442-6-I-5° C. Com. (...)

This is essentially the solution that emerges from a decision of the Caen Court of Appeal of 23 April 2009 . The disputed clause, inserted in a subcontracting agreement between the GSM Companies (Groupe Seb-Moulinex) and Alençon Plastic, was worded as follows : "This contract is concluded (...)

Cass. com, 5 May 2009, Sociétés Tecno Plastic et Alprene c/ M. Y, n° 08-11916 Cass. com, April 7, 2009, Société Sodimas c/ Société Transports Fatton, n° 08-11572 What is covered by the notion of "established commercial relations" and what form can or must the announcement of the termination (...)

Cass. 1st civ., 22 January 2009, Mr. X...(biologist) v. Mr. Y... (surgeon), n° 07-21.233 Cass. com, 20 January 2009, Maître X...(notary) c/ Caisse d’épargne et de prévoyance du Val-de-France, No. 07-17.556 To what extent are members of the liberal professions likely to denounce the abrupt (...)

Cass. com, January 13, 2009, Société Delor Vincent v/ Société Renault Agriculture, 08-13.971 While there is still some uncertainty as to the various elements contributing to the notion of abrupt termination of established commercial relations, one thing is certain, and the Court of Cassation (...)

Cass. com, 16 December 2008, Bouygues Bâtiment International (BBI) c/ Les Ateliers d’Origine, n° 07-15589 Cass. com, December 2, 2008, Tomécanic-Benetière v. Castorama, No. 08-10731 Cass. com, 2 December 2008, Tomécanic-Benetière v. Brico-Dépôt, No. 08-10732 Readers of this column are aware (...)

CA Bordeaux, 5 February 2008, SARL So.Go.Bois c/ SAS Seguin Moreau, RG 06/05969 Cass. com, 23 September 2008, Teixagol v. Temaco, No. 07-10.025. To what extent is the fault of one party to an established commercial relationship likely to justify a termination without notice at the initiative (...)

CA Montpellier, 2nd floor, 22 January 2008, Sociétés Alex, SEG et EDL c/ Société Daimler Chrysler Trailer Axle Systems Southern Europe, RG 06/7448 CA Montpellier, 2nd floor, 9 February 2008, Société STIM c/ Société Visio Sys, RG 06/7980 Cass. com, 6 May 2008, Société Tramico v/ Société (...)

CA Lyon, 3rd civil court, January 24, 2008, Gemini France and Comarme Marchetti c / Ridec, RG n° 06/06998 Cass. com, 29 January 2008, Établissements X v BP France, No. 07-12.039 A few days apart, the Lyon Court of Appeal (January 24, 2008) and the Court of Cassation (January 29, 2008) (...)

Cass. com, September 25, 2007, Beaumont Automobiles c/ M. X..., No. 06-15.517 Cass. com, November 20, 2007, Atlantica c/ MMC Sales Europe, France and Bordeaux, n° 06.17.289 The last months of the past year have given the Court of Cassation the opportunity to address the dual issue of the (...)

Cass. com, 15 May 2007, Giedam v. Auchan, No. 05-19.370 Cass. com, June 26, 2007, Goldies v. Rolot and Lemasson, No. 05-21.378. The rules laid down in article 1382 of the Civil Code require the plaintiff in a civil liability action to prove fault, injury and the causal link between the (...)

CA Versailles, 12th Chamber, 3 May 2007, Le Galec v Ministre de l’Économie: Firstpart - Secondpart - Third part The succession of judicial episodes favourable to the Minister of the Economy in his hunt for supposedly restrictive practices in mass distribution has just come to a noticeable (...)

CAVersailles, 12th room, 15 March 2007, Monoprix c/ Ets Chouard In the context of this section, we have had the opportunity to regularly praise the pragmatism of the case law which, over the years, has established the conditions for defining the notion of abrupt termination of established (...)

Cass. com, 6 February 2007, Idéal France and Dudule c/ Guiot, n° 04-13.178 Cass. com, February 6, 2007, "Le Clown est Roi" c/ Favand, n° 03-20.463 Cass. com, February 20, 2007, Daniel Grenin v. Usinor Achats, No. 04-14.446 Cass. com, 6 March 2007, UCT c/ Transports Joyau, n° 05-18.121 The (...)

Cass. com, June 7, 2006, VGA v/ Gam Audy, No. 03-12.659 Cass. com, 25 April 2006, Meech Static Eliminators Ltd v. SJM, No. 02-19.577 CA Lyon, January 5, 2006, Oxena v/ Linossier, RG 04/02.479 The concept of the abrupt termination of established commercial relationships is, as we regularly (...)

Cass. com, October 3, 2006, SFR c/ HAP, No. 04-11.956 Cass. com, 31 October 2006, ETI c/ SDE, No. 04-14.988. Most of the decisions defining the conditions for the interpretation of the concept of abrupt termination of established commercial relations have so far clarified how the established (...)

Cass. com, January 31, 2006, Lamy Lionel as liquidator of the Company Lamy Moto c/ Yamaha Motor France and MBK, n° 03-13.739 The jurisprudential construction of the notion of abrupt termination of established commercial relations is being developed in small steps, as decisions are handed (...)

CA Paris, 4th ch. sect. A, 14 December 2005, SARL Editions Jouvence c/ SARL Cassiopée CA Nîmes, 2nd ch. sect. B, 15 September 2005, SARL d’Exploitation Chouett Bureau c/ SA Spicers France T. com. Evry, 3rd ch., 5 October 2005, SA Kiasma c/ Carrefour Hypermarchés France) The last few months (...)

T. com. Nanterre, 1st chapter, 15 November 2005, Minister of the Economy v. GALEC In September 2001, the central referencing office of the Leclerc group of stores (GALEC), after comparing its purchasing conditions for fresh products with those of Carrefour, found that it had received lower (...)

CA Paris, 5ème ch. A, 8 June 2005, LCJ Diffusion v/ La Roche Posay and Cosmétique Active France In accordance with Article L.442-6-I-6° of the French Commercial Code, the fact that a trader "directly or indirectly participates in the violation of the prohibition of resale outside the network (...)

CA Paris, 4ème ch. A, November 24, 2004, SARL Chaussures Eram c/ SA Europe Style, RG 03/21011 CA Paris, 4ème ch. A, 12 January 2005, Kaligona c/ Dreamnex, RG 03/14152 This issue is on the agenda of the next Congress of the International League of Competition Law, which will be held in Ghent (...)

Cass. com, 7 July 2004, Kiasma v. CIM and Continent Hypermarkets, No. 03-11.472 Cass. com, November 3, 2004, Société Ronyl v/ Sociétés Breitling Suisse and Breitling France, n° 02-17.078 Two rulings of the Court of Cassation have added a few stones to the edifice of jurisprudential (...)

CA Paris, 4ème ch. A, 8 September 2004, SARL Sport Autogalerie c/ Porsche France, RG 04/04631 It is to this useful double reminder that a decision of the Paris Court of Appeal of September 8, 2004, which is also interesting to draw the limits to the choice of a domain name, should be read. (...)