Nicolas Éréséo

A company operating a beer bar enters into a beverage supply contract on May 3, 2017. In return, it obtains from the supplier the guarantee of a loan and the provision of the necessary equipment to draw the beer. Difficulties arose, as the supplier suspected a breach of exclusivity. The (...)

Selective distribution is not reserved for luxury products, as demonstrated by the present case, which pitted a famous manufacturer of gardening and forestry products (Husqvarna) against a company operating an online sales site for various DIY products (Brico Privé). (Husqvarna) to a company (...)

Coty France operates a distribution network for luxury cosmetics and perfumery products of various brands for which the parent company is the exclusive licensee for the entire world. For several years, the company has been the source of a large amount of litigation concerning parallel resale, (...)

What are they for? The question arises from the decision of the Constitutional Council of 6 October. This decision concerned the provision of article L. 442-1, I, 1° of the French Commercial Code, which punishes the fact that any professional " obtains or attempts to obtain from the other (...)

The facts. The Bissate company operates two stores selling luxury fabrics in Morocco. It has been supplied by Boussac-Fadini since the 1990s, but the latter’s assets were taken over by Pierre Frey under a transfer judgment of April 6, 2004. Pierre Frey then ensured the continuation of supplies (...)

The Foncia case has just reached its epilogue with a decision of the Court of Cassation rendered on September 7, 2022 after several procedural twists and turns. Until December 31, 2006, Foncia Groupe headed a network of 300 branches and decided to create a subsidiary(Foncia Franchise) to (...)

The marriage of banking law and distribution law will not take place. At least that is the feeling that dominates on reading the of the decision rendered on June 15 by the Court of Cassation. By condemning advances on remittances in the name of the monopoly, it puts an end to nearly 40 years (...)

This article was first published in the Lettre de la distribution published by the Centre du Droit de l’Entreprise of the University of Montpellier. The sale of private label products represents a significant share of total product sales on supermarket shelves (around 30% in volume in (...)

Cet article a fait l’objet d’une première publication dans la Lettre de la distribution publiée par le Centre du Droit de l’Entreprise de l’Université de Montpellier. Deux millions d’euros d’amende pour un chiffre d’affaires de plus de 257 milliards de dollars en 2021… La sanction (...)

The regime applicable to refusals of approval is struggling to stabilize, as evidenced by the decision rendered on February 16 by the Paris Court of Appeal, which looks like a reversal of the reversal (and therefore a return to the starting point). The facts can be summarized simply: the (...)

Glinche has the status of an authorized repairer for the Peugeot network under several successive contracts, the last of which took effect on June 1, 2011. At the beginning of 2014, the manufacturer noticed that new vehicles were being offered on the repairer’s site (without approval for this (...)

Cet article a fait l’objet d’une première publication dans la Lettre de la distribution publiée par le Centre du Droit de l’Entreprise de l’Université de Montpellier. Faits. La société « N » est membre depuis 1998 d’une société coopérative de commerçants regroupés sous l’enseigne Expert. (...)

Carrefour is going through a major crisis, judging by the persistent rebellion of some franchisees, which ARTE recently reported on in a highly acclaimed documentary ("Hypermarkets, the fall of the empire", by Rémi Delescluse). Caught between the decline of its hypermarkets and the arrival (...)

Created in practice, the partnership contract is sometimes presented as a kind of "light" franchise (not to say at a discount). Those who promote it prefer to insist on its horizontal nature: unlike the operation of a franchise, the parties would act on an equal footing and the contract (...)

It is well known that off-network distributors often use platforms such as eBay or Amazon Market Place to reach a larger number of customers. In this context, manufacturers, network promoters and other brand owners have every interest in directing actions towards these platforms in order to (...)

Coty France, prestige division, operates in France a distribution network for luxury cosmetics and perfumery products of various brands for which the parent company is the exclusive licensee worldwide. For several years, it has been at the origin of a major dispute concerning parallel resale, (...)

Coty France, prestige division, operates in France a distribution network for luxury cosmetics and perfumery products of various brands for which the parent company is the exclusive licensee worldwide. For several years, it has been at the origin of a major dispute concerning parallel resale, (...)

Unfair competition by denigration, unlawful advertising and misuse of a customer file* Facts. The company Fenêtres et portes du soleil (FPS) operates a business of windows, doors and shutters. It accused two former employees of unfair competition when they created a competing company (Label (...)

Vorwerk manufactures the famous Thermomix and various other household appliances which it markets and maintains through distributors and approved repairers. It had the resale and repair of its products by an unauthorised online operator, already convicted for the same facts, noted and sued the (...)

Large retailers put strong pressure on suppliers for all products for which a promotional communication is planned. In practice, service and penalty rates are systematically increased in order to guarantee the availability of products at the time announced in the communication. This case (...)

The crises of the last few decades have favoured the gold trade and in particular the development of shops specialising in the purchase of this metal from private individuals; shops which are often franchises or dealerships of a national brand, as illustrated by the present case. In this (...)

The management of theintuitu personae in franchise agreements is sometimes a real headache, as shown by the decision rendered on 27 January by the Paris Court of Appeal. The facts of the case are quite complex and will be roughly summarized: a franchisor operating in the field of temporary (...)

Cet article a fait l’objet d’une première publication dans la Lettre de la distribution publiée par le Centre du Droit de l’Entreprise de l’Université de Montpellier. La vente de produits à marque de distributeur (MDD) représente une part significative des ventes totales de produits dans (...)

After observing the sale of its products on the ’marketplaces’ operated by Amazon, a Dutch company which owns the Cluse trade mark and specialises in the design, manufacture and marketing of watches and jewellery applied for and obtained an injunction to discontinue the disputed activity, (...)

Puma designs and produces sports and leisure articles, marketed under the eponymous brand name through a selective distribution network. It sued Lidl, a company which, without being part of that network, had sold shoes and backpacks under the Puma brand as part of a promotional operation (...)

Despite the free negotiability of prices resulting from Article L. 410-2 of the French Commercial Code and reaffirmed by the Economic Modernization Act of 4 August 2008, France has gradually equipped itself (in Title IV of Book IV of the Commercial Code) with a system for monitoring (...)

Taking advantage of the wind of freedom that is blowing on the regime applicable to selective distribution, car manufacturers no longer hesitate to substantially reorganise their networks and to oust the least efficient (or most recalcitrant) distributors, giving rise to a great deal of (...)

Sued for infringement by the company owning the mark Pierre Cardin, a wholesaler and its exclusive distributor successfully assert exhaustion of the rights in the title invoked. They counterclaim the anti-competitive nature of certain clauses in the trade mark proprietor’s licence agreements (...)

Faits. Un fournisseur spécialisé dans la confection d’articles de bonneterie et de sous-vêtements fabriqués en Asie conclut plusieurs contrats avec une centrale d’achat à partir de 2001. Après avoir constaté une baisse significative des commandes à compter de l’année 2011 consécutive à la (...)

When a franchisee leaves the network, the franchisor generally forces the franchisee to give up anything that may recall the know-how and distinctive signs previously exploited. The present case falls within this framework and concerns an original stipulation which has the effect of forcing (...)

The reorganisation of selective distribution networks has been at the heart of the judicial news for several years, mainly in the automotive sector where the non-renewal of a contract is generally badly experienced by the distributor or repairer. The latter rarely hesitates to take legal (...)

A franchisor in the motor vehicle rental industry is proposing to a former general insurance agent to take over a franchised business in Orléans. The pre-contractual disclosure document (PID) is submitted on April 2, 2012, training is provided in April, the franchise agreement is signed on (...)

This In Memoriam pays tribute to Professor Didier Ferrier. On January 5, 2020, Professor Didier Ferrier passed away. He was one of the fathers of distribution law. He was also its watchdog. His exceptional career bears witness to this. It’s not just the university professorship he held for (...)

In distribution matters, when the courts examine claims based on unfair competition (Civil Code, art. 1240), it is generally at the initiative of network operators wishing to be compensated for damage caused by a parallel reseller (for a reminder of the applicable solutions, see above in this (...)

The phenomenon of parallel resale fuels an inexhaustible litigation as illustrated by the river case which has just been settled before the Court of Appeal of Paris on 29 January 2020 (on the same subject, see below the obs. of N. Ferrier on CA Rennes, 25 Feb. 2020, RG n° 17/03287). In the (...)

Rendered on referral after cassation (Cass. com., 28 Nov. 2018, n° 17-18.619), the judgment of the Paris Court of Appeal of 13 December 2019 had to rule, inter alia, on the validity of a post-contractual non-competition clause provided for by a franchisor in the education sector. Under two (...)

Most distribution contracts are concluded intuitu personae where the parties usually agree that the distributor will have to obtain the supplier’s consent before being able to dispose of its contractual position, shares or goodwill. Clauses of this type are normally to be interpreted strictly, (...)

The decision handed down on 27 November 2019 by the Paris Court of Appeal will not fail to interest specialists in distribution law in that it returns to the much-discussed qualification of refusal of authorisation and brings about a surprising reversal of case law. Let us go back a few (...)

The judgment under comment deserves particular attention in that it illustrates a worrying phenomenon: the increasing pollution of the entire distribution law by provisions which were originally intended for the large-scale distribution sector alone. In the present case, two companies (...)

The ruling handed down on 6 November 2019 by the Paris Court of Appeal deserves particular attention in that it illustrates a worrying phenomenon: the increasing pollution of the entire distribution law by provisions that were initially intended for the large-scale distribution sector alone. (...)

The judgment under comment does not concern distribution contracts but will be of interest to all professionals who practice them in that it deals with well-known subjects such as the possibility of invoking an implicit exclusivity or the conditions of application of the so-called "Doubin" (...)

French Polynesia is an overseas collectivity (COM) made up of five archipelagos and 118 islands, and enjoys a large degree of autonomy from mainland France. Among other specificities, it is only very recently that Polynesia abandoned the model of an administered economy in favour of a more (...)

On the subject of the selection of distributors, the rulings follow one another and are similar, as evidenced by the decision handed down on 31 July by the Paris Court of Appeal. The judges confirmed that victims of refusal of approval no longer have little interest in going to court. In fact, (...)

Most franchise agreements contain clauses restricting the freedom of supply of franchisees. In fact, whether production, service or distribution franchises are involved, the franchisee is almost always required to obtain all or part of its needs for resold or processed products from the (...)

A company operating a restaurant enters into a 5-year contract with a drinks wholesaler under which the restaurant operator undertakes to obtain supplies exclusively from the wholesaler in return for the payment of an advance on discount of 5,000 euros. Less than a year later, the wholesaler (...)

The obligation on the distributor to communicate its customer file to the supplier is multiplied in distribution contracts, particularly in franchise agreements, as shown in the judgment under comment. In the present case, a company specialising in the retail trade in furniture and household (...)

In a case brought by three companies operating motor vehicle garages, the Competition Authority answered the question whether the Korean manufacturer Hyundai should be sanctioned for an anti-competitive cartel due to a policy of discriminatory selection of its authorised repairers. Victims (...)

In a case brought by three companies operating motor vehicle garages, the Competition Authority answered the question whether the Korean manufacturer Hyundai should be sanctioned for an anti-competitive cartel due to a policy of discriminatory selection of its authorised repairers. The (...)

In application of the EGALIM law of 30 October 2018 (Lettre distr. nov. 2018, p. 12, obs. T. Leichnig), the order of 24 April 2019 gives rise to the most important reform known by Title IV of Book IV of the Commercial Code since the codification in 2000 and after multiple legislative (...)

The Paris Court of Appeal confirms and refines its case law on the selection of distributors, as illustrated by the ruling handed down on 27 March. In this case, an approved Jaguar Land Rover repairer had been forced out of the network in 2016 and asked the court to order the manufacturer to (...)

Do distributors who are victims of refusal of authorisation still have an interest in bringing an action before the courts in order to invoke a violation of competition law? This is doubtful in view of the developments in case law in recent years (on the whole issue, see N. Ferrier, La (...)

The freedoms enjoyed by the promoters of selective distribution networks continue to assert themselves in case law, as confirmed by the ruling handed down by the Paris Court of Appeal on 20 February this year. In this case, a motor vehicle distributor complained about the termination (...)

An authorised distributor of spare parts contested in summary proceedings the termination for fault notified to him by the supplier and requested the continuation of the relationship, citing the need to prevent imminent damage and to stop a manifestly unlawful disturbance. Infirming the (...)

The freedoms currently enjoyed by the promoters of selective distribution networks have been affirmed in case law, as confirmed by two decisions handed down on the same day by the Paris Court of Appeal. Both decisions concerned distribution contracts in the motor vehicle sector which at the (...)

The regime applicable to qualitative selective distribution has been continuously liberalised in recent years. Abandoning the principle which required suppliers to approve any distributor meeting the selection criteria, case law has finally enshrined the right to select them on a discretionary (...)

The regime applicable to qualitative selective distribution has been continuously liberalised in recent years. Abandoning the principle which required suppliers to approve any distributor meeting the selection criteria, case law has finally enshrined the right to select them on a discretionary (...)

A company based in Hong Kong operates a website and offers French customers the sale of watches subject to a selective system. A second company domiciled in France provides collection and after-sales service. They are both assigned by the brand owner and the promoter of the selective (...)

A manufacturer in the sports and leisure goods sector sues a supermarket chain for infringement of its selective distribution network and acts of unfair competition. In response, the defendant produced 73 invoices showing third-party supply to the network. The Court concluded that there was (...)

The decision under comment was particularly eagerly awaited. The Constitutional Council was once again called upon to rule on the constitutionality of Article L. 442-6, I, 2° of the Commercial Code, which penalises the submission of bonds creating a significant imbalance. In an initial (...)

Created by the Macron law of 6 August 2015, the new Title IV of Book III C. com. includes two provisions applicable to "commercial distribution networks". The first requires a common term when several contracts are involved in the operation of a retail shop and provides for indivisibility (...)

It is now a given that a franchisor is perfectly free to reorganize his network, i.e. to modify its density (Com., Jan. 7, 2014, No. 12-17154, Distr. letter Feb. 2014, N.E. obs.), the sign (Paris, Feb. 5, 2014, No. 12/18858, Distr. letter March 2014, N.E. obs.) and even the concept. This (...)

It is now a given that a franchisor is perfectly free to reorganize his network, i.e. to modify its density (Cass. com., 7 Jan. 2014, No. 12-17154, Letter distributed Feb. 2014, obs. N. Eréséo), the sign (CA Paris, 5 Feb. 2014, n° 12/18858, Letter distributed March 2014, obs. N. Eréséo) and (...)

Ensuring the coexistence of several forms of distribution is a delicate art, as evidenced by the 8 decisions handed down on the same day by the Commercial Chamber of the Court of Cassation. The case concerned Foncia Groupe, which until December 31, 2006 was at the head of a network of 300 (...)

The judgment under comment is part of a complex procedure, the main stages of which should be outlined. Caudalie, a company known for marketing cosmetic products through a selective distribution network authorizing online sales (since Cons. conc., DC No. 07-D-07 of March 8, 2007) but (...)

The practice is never short of contractual innovations, as the new figure of the partnership contract has shown in recent years. Presented as a more collaborative alternative and above all less cumbersome to implement than franchising, the formula has everything to seduce apprentice (...)

Competition law makes a clear distinction between selective and exclusive distribution when it comes to determining the conditions under which such systems can benefit from a block exemption. Taking up solutions acquired over many years, Regulation (EU) No 330-2010 now lays down the (...)

For any obligation to provide information, it is accepted that it is up to the debtor to prove that he has fulfilled his obligations, in accordance with case law that has been well established for some twenty years and is now taken up by the legislature (Cass. civ. 1ère, 9 Dec. 1997, No. (...)

The CEPC is increasingly referred to the CEPC by legal professionals, as evidenced by Opinion 18-3 issued on the initiative of a pharmacist’s lawyer. The commission ruled on the conformity with the law and, in particular, with articles L. 442-6, I, 1° and 2° C. com. of the "commercial (...)

Until relatively recently, it was accepted that a supplier having set up a qualitative selective distribution system had to select any distributor meeting the selection criteria in order for its system to escape Article 101(1) TFEU, in accordance with the principles adopted by the Court of (...)

Most distribution contracts contain clauses which restrict the freedom of purchase of distributors by depriving them of the possibility to acquire competing products and/or by requiring that the contract products be acquired exclusively from a specific person. The contract usually designates (...)

Coty II case: the CJEU validates the ban on the use of electronic platforms* Can suppliers who have set up selective distribution prevent authorised distributors from selling products via electronic platforms such as Amazon or eBay? For some years now, the issue has been stirring up the (...)

The dispute between JPL Café Coton, a company engaged in the wholesale and retail trade of textile products, and BLT Développement, a company specialising in the sale of products online, has just been settled by a judgment of 15 November 2017 handed down by the Paris Court of Appeal after a (...)

The promoters of selective distribution networks must guarantee their watertightness by stipulating that distributors are prohibited from passing on products to unauthorised operators. The clause is naturally exempted from the prohibition on cartels in that it is part of the very essence of (...)

Coty case: Advocate General supports ban on sales on electronic platforms* The position of the Court of Justice on the prohibition on authorised distributors selling via electronic platforms is eagerly awaited. Currently before the Court for a preliminary ruling by a German court, the Court (...)

Significant imbalance and manifest disproportionality: same battle!* Article L. 442-6, I, C. com. currently contains two redundant provisions: the 1° which punishes the fact of " obtaining or attempting to obtain from a commercial partner any advantage whatsoever which does not correspond to (...)

Loyalty rebates: the Court of Justice annuls the Intel judgment and upholds the effects approach* On 6 September, the Court of Justice handed down one of the most important judgments on competition matters in the last twenty years. Beyond the spectacular annulment of the record conviction (...)

The litigation currently opposing Samsung and Competition on the application of the clause prohibiting the latter from using electronic platforms has given the Court of Cassation the opportunity to review the rules for determining the competent court when damage is caused by resales from (...)

The liberal trend currently enjoyed by the promoters of selective distribution networks does not allow for all types of behaviour, as illustrated by the conviction for refusal to sell decided against a manufacturer by the Paris Court of Appeal on 5 July 2017 (see Lettre distribution, Sept. (...)

"The situation of any franchisee is by nature precarious". This formula, hammered like a slogan by a remarkable series of judgments handed down by the Versailles Court of Appeal, clearly underlines the risks inherent in the adventure of franchising (CA Versailles 24 Jan. 2017 (6 judgments), RG (...)

Eviction of a selected distributor: common law v/ competition law* Despite the liberal regime, to say the least, that promoters of selective distribution networks enjoy today (CA Paris, 19 Oct. 2016: Concurrences No. 1-2017, p. 113, obs. N. Eréséo - Cass. com. 21 June 2016, pourvoi n° (...)

The arrangements for withdrawing from an EIG are not subject to control of the significant imbalance* The questions surrounding the scope of application of article L. 442-6 of the Commercial Code are the subject of an ever-increasing amount of litigation. It is true that the text offers the (...)

Variations on Article L. 442-6 of the French Commercial Code The decision handed down on April 19 by the Paris Court of Appeal provides a good overview of the various provisions of Article L. 442-6 of the French Commercial Code in a dispute between a specialist retailer (Bricorama) and a (...)

The development of online commerce poses a threat to selective distribution systems, which case law has been making vulnerable for nearly 30 years by establishing a principle of lawfulness of offline resale (Cass. com., 10 Jan. 1989, note A). Bénabent, D. 1989, p. 427 - Cass. com. 27 Oct. 1992 (...)

A company that has patented a flexible medical needle entrusts its exclusive distribution to a partner under a contract signed on September 27, 2009 for a period of three years renewable by tacit agreement. Complaining, on the one hand, about the existence of numerous competing products on (...)

Anticipating the entry into force of a new European exemption regulation, a car manufacturer gives notice of termination of contracts with dealers with 24 months plus one week to give them time to inform the agents with whom they have contracted. A dealer notifies an agent of the termination (...)

The brutal exclusion of a member of a cooperative does not fall under article L. 442-6, I, 5° of the Commercial Code* Do the internal relations of the companies fall under article L.442-6, I, 5° C. com. relating to the brutal rupture of established commercial relations? The question is (...)

Introduced nearly 30 years ago by the so-called "Doubin" law of 31 December 1989, the obligation of pre-contractual information provided for today by Article L. 330-3 of the French Commercial Code has given rise to recurrent disputes which case law is struggling to contain. In the franchise (...)

The qualitative selective distribution network set up by Rolex is the subject of regular litigation, as attested by various comments published in recent months (Cass. com., 21 June 2016, appeal no. 15-10438, obs. D. Ferrier Letter of distribution Sept. 2016, p. 4, obs. N. Eréséo - CA Paris, (...)

Recognizing the originality of the franchise agreement in relation to other distribution agreements presupposes a strict appreciation of the notion of know-how. The favourable treatment that competition law reserves to franchising is moreover conditioned by a triple requirement firmly stated (...)

The beer contract is based on a coherent set of obligations: the supplier invests in the outlet (usually by lending equipment free of charge) and makes sure that his investment is amortised by stipulating a minimum duration and minimum quantities to be reached, thereby satisfying the (...)

Two operators of a catering business, who had signed an exclusive supply contract with a drinks supplier, argued that this was in fact a franchise agreement and that the provisions of Article L. 330-3 of the Commercial Code relating to pre-contractual information due from certain suppliers (...)

Defending a selective distribution network presupposes being able to demonstrate its lawfulness, as illustrated once again by the ruling handed down on 25 May by the Paris Court of Appeal. In the present case, a French subsidiary of a group made up of two entities whose business is to create (...)

On the sidelines of a case dealing mainly with the abrupt termination of an established commercial relationship, a ruling handed down on 12 April by the Court of Cassation raises an interesting question concerning the unilateral termination option that may be provided for in exclusive (...)

The setting of quotas (minimum quantities to be bought or sold in), of minima (minimum quantities to be resold or sold out), or of market penetration coefficients (market shares to be gained) accompanies practically all network distribution contracts, whether selective, exclusive or franchised (...)

After a long discussion, the solution finally settled in case law: a franchise agreement does not imply that exclusivity is granted to the franchisee if success can be achieved in the absence of such a stipulation (D. and N. Ferrier, Droit de la distribution, 7th ed, Lexisnexis 2014, No. 723). (...)

The setting of quotas (minimum quantities to be bought or sold in), of minima (minimum quantities to be resold or sold out), or of market penetration coefficients (market shares to be gained) accompanies practically all network distribution contracts, whether selective, exclusive or franchised (...)

The management of a distribution network implies reconciling the necessary changes that the network has to undergo with the principle of the inviolability of all the contracts that materialise its existence (N. Ferrier, Évolution de la politique du réseau et intangibilité contractuelle, JDS n° (...)

The failure of the franchisee’s business generally leads its manager or possibly the liquidator to seek the cancellation of the contract and, subsidiarily, its termination to the exclusive detriment of the franchisor, as illustrated in this case by the claims made by a restaurant franchisee. (...)

Competition in the motor vehicle aftermarket sector still suffers from many shortcomings as the Competition Authority has explained at length (Aut. conc., Opinion No 12-A-21 of 8 Oct. 2012, on the competitive functioning of the vehicle repair and maintenance sector and the manufacture and (...)

The franchisor’s failure to comply with his pre-contractual obligations of information, reinforced by Article L. 330-3 of the Commercial Code, often leads the franchisee to invoke the nullity of the contract for error and sometimes for fraudulent concealment (Civil Code, Art. 1116), as (...)

The fate of stocks after the termination of the relationship between a supplier and a distributor fuels a rather rare but worthwhile dispute, given the lack of consensus on the solutions to be adopted. Although unpublished, the ruling handed down on 9 September 2015 by the Court of Cassation (...)

Do proceedings pending before the Competition Authority allow the subject of the proceedings to suspend the performance of its obligations on the grounds that they are likely to have an anti-competitive object or effect? This is essentially the problem that the Paris Court of Appeal was (...)

Distribution agreements in the beer sector are generally based on the commitment by the lessee to obtain supplies only from the other party to the agreement. In return, the other party makes an investment for the benefit of the outlet operator, usually in the form of a loan of equipment. In (...)

In a previous column, attention was drawn to a decision of the Paris Court of Appeal which had originally decided that a bank in relation with the manager and guarantor of a franchised company "should have drawn the attention of[ this client] to the inadequacy of the pre-contractual (...)

What remains of contractual solidarity in jurisprudence? Not much, if we read the decision handed down on 24 June 2015 by the Paris Court of Appeal in a context - the automobile - which was nevertheless the chosen terrain for the generous theses defended in the past by certain authors (see (...)

As a precondition for the conclusion of a franchise agreement with a candidate for the network, the franchisor often proposes a contract for the search for business premises, in return for the payment of a lump sum to be used against the entrance fee and returnable in the event of an (...)

For some years now, many overseas compatriots have been denouncing a phenomenon of "high prices", accusing certain local operators of taking advantage of a distribution monopoly. On the occasion of an opinion delivered in 2009 (Opinion No. 09-A-45 of 8 September 2009, on the mechanisms for (...)

In barely three months, the French retail landscape has undergone a major upheaval following the conclusion of three merger agreements between the main distribution groups. These agreements concern A first agreement of September 10, 2014 by which Système U mandated Auchan to negotiate a part (...)

Cass. soc. 18 Feb. 2015, Ms X c/ Médias diffusion conseil and Média Plus communication, n° 13-28231 Contracts concluded between suppliers and travellers, sales representatives (VRP) are subject to the rules laid down in Articles L. 7311-1 et seq. of the Labour Code, the mandatory nature of (...)

CA Limoges, 18 Feb. 2015, BMW France v/ Taurisson, RG n° 13/01488 On the sidelines of a dispute between a car manufacturer and a dealer relating in particular to the application of Article L. 442-6, I, 5° of the Commercial Code concerning the abrupt termination of the established relations, (...)

CA Montpellier, 17 Feb. 2015, Bar Le Corsaire c/ Brasserie Milles, RG n° 14/01926 The Montpellier Court of Appeal was seised of an exclusive supply contract concluded between a drinks supplier and a pub owner and examined the recurring questions raised by these contracts. It began by (...)

CA Paris, 11 Feb. 2015, F. Hebert v/ Oil France, RG n° 12/22507 Contractual relations between oil companies and pump attendants are often based on two institutions: the management lease of a business and the mandate as governed by Articles 1984 et seq. of the Civil Code. In view of the (...)

The organisation of distribution often calls for arrangements involving two or more indivisible contracts. The motor vehicle sector has been a good example since the European Commission began separating the fate of sales agreements from that of after-sales agreements, which raise specific (...)

Cass. com, Feb. 10, 2015, CFG Patrimoine c/ ACT Patrimoine, n° 13-25667 The post-contractual non-competition clause imposed on a commercial agent is subject to compliance with Article L. 134-14 of the Commercial Code, which provides that it "must be drawn up in writing and must relate to the (...)

CA Montpellier, 3 Feb. 2015, Brasseries Milles c/ G.R. Noel, RG n° 13/07364 Exclusive supply contracts concluded between beverage suppliers and cafe owners, hotels or restaurants generally include a clause setting minimum quantities to be purchased during the performance of the contract as (...)

CA Metz, 27 Jan. 2015, Klemon c/ Carrefour Proximité France, RG nos 15/00042 and 12/02421 The Metz Court of Appeal issued a decision in line with a ruling handed down by the Court of Cassation at the end of last year. Seized by a franchisee who had not been able to sell his business to a (...)

CA Paris, Jan. 15, 2015, Bio Service Antilles c/ Olympus France, RG n° 12/12120 A French company that is a member of a Japanese group specializing in the manufacture and marketing of very high-tech equipment, particularly in the field of medical imaging and endoscopy, had given another (...)

CA Paris, 14 Jan. 2015, Era Global Management v REQ2PAY, RG n° 12/18716 When a franchisee brought an application for annulment based on Article L. 330-3 of the Commercial Code, the Paris Court of Appeal held that although "the law does not require the ’transmission of the criminal record of (...)

CA Paris, Dec. 17, 2014, André Gobbo v/ Cash Express, RG n° 13/08615 Seized by a franchisee placed in judicial liquidation after having operated in the sector of the sale of second-hand products put on deposit by private individuals, the Paris Court of Appeal ruled that the pre-contractual (...)

As the Competition Authority demonstrated in its opinion of 7 December 2010, competition in the food distribution sector works very badly (Opinion No 10-A-26, on affiliation agreements of independent shops), particularly in Paris where the market is particularly concentrated (Opinion No. (...)

A franchisor wishing to protect the integrity of its network by stipulating exclusive supply or non-reaffiliation clauses must ensure that it has sufficient know-how to justify the existence of such restrictions of competition. In the food sector, network promoters often come up against this (...)

The decision of the Paris Court of Appeal on 29 April went relatively unnoticed. Reading it, one can understand the embarrassment it must have caused the French banking community. Essentially, the judges decided that a bank may be held liable, as part of its duty to provide information and (...)

CA Rennes, April 24, 2014, RG n° 12/08326, Agri Placement c/ Agri Following the termination of his franchise agreement, a franchisee had sued his franchisor for nullity of the agreement for lack of elements characteristic of a franchise (know-how, technical and commercial assistance). The (...)

CA Lyon, 27 February 2014, RG n° 12/02379, Distribution Casino France CA Lyon, 27 February 2014, RG n° 12/07174, Langloyx Traiteur In a first case, the Lyon Court of Appeal awarded a franchisee damages for loss of opportunity to "contract on more advantageous terms than those [he] had (...)

Aix-en-Provence Board of Directors, February 20, 2014, RG n° 12/01385, Holding Financière Seguy CA Paris, February 19, 2014, RG n° 11/19868, Hervé A&N associés c/ Assurtis In a first case, the Court of Appeal of Aix-en-Provence ruled out the existence of fraud at the origin of the (...)

CA Paris, February 19, 2014, RG n° 11/20167, M. D. c/ Assurtis The director of a franchised company had, in parallel with his company’s claims for breach of the franchisor’s pre-contractual disclosure obligation, made a personal claim for compensation in his capacity as a third party victim (...)

CA Paris, January 15, 2014, RG n° 12/13845, Europe Auto/Volkswagen Group France Already mentioned on the subject of network reorganisation (see this column, supra), the ruling handed down by the Paris Court of Appeal on 15 January 2014 still deserves some comments in that it also deals with (...)

CA Paris, January 15, 2014, RG n° 12/13845, Europe Auto c/ Volkswagen Group France CA Paris, February 5, 2014, RG n° 12/18858 EPIL SUN c/ SELARL AJA Reconciling freedom of enterprise with contractual law, case law regularly sets out the solution whereby any supplier is free to modify the (...)

The motor vehicle aftermarket sector suffers from serious malfunctions which are regularly denounced by the competition authorities (see, most recently, Aut. conc., Opinion No 12-A-21 of 8 Oct. 2012, on the competitive functioning of the vehicle repair and maintenance sector and the (...)

A company with a wholesale business involving discount products acted as a central purchasing office and franchisor for the benefit of various distributors. It had acquired cosmetic and make-up products bearing the CHANEL brand at an auction following a judicial liquidation, before reselling (...)

The Paris Court of Appeal has issued a well reasoned ruling that will be of interest to both commercial leasing practitioners and competition law specialists. The dispute was between the companies Le Polygone, which has operated a shopping centre in the heart of Montpellier since 1975, and (...)

Cass. com, January 15, 2013, No. 11-17797 and 11-24155. The French Competition Authority deplored this at length in its opinion of 7 December 2010: the food sector is the scene of contractual commitments entered into for excessively long periods of time, which have the effect of blocking (...)

Among other grievances, a former franchisee alleged that the franchisor had failed to provide fair, accurate and prudent information on the viability of the business and claimed to have been the victim of an error regarding the economic profitability of the operation. She pointed to the (...)

A distributor of multi-brand motorcycles was being sued by a manufacturer (Honda) for importing a number of products not intended for the European market, thereby infringing the supplier’s trademarks. In an action for infringement, the Parisian advisers pointed out that, under Article 7 of (...)

Opinion No. 12-A-21 of 8 Oct. 2012 on the competitive functioning of the vehicle repair and maintenance and spare parts manufacturing and distribution sectors. In law as in fact, the motor vehicle sector is divided into two quite distinct markets: the market for the sale of vehicles, (...)

In force until 1 June 2013, Regulation (EC) No 1400/2002 lays down the exemption conditions applicable to agreements for the sale of new motor vehicles (N. Eréséo and D. Ferré, Rep. Dr. comm. Dalloz, V° Automobile). In accordance with the intrusive policy inaugurated with the adoption of the (...)

CJEU, 14 June 2012, Auto 24, Case C-158/11 Particularly awaited by all the players in the automotive world, the Court of Justice has just handed down an important decision which offers manufacturers great freedom of organisation of their distribution networks. The case concerned the (...)

The Competition Authority has explained it at length: the food distribution sector is the scene of abnormal conditions of competition that would justify numerous behavioural remedies (Opinion No. 10-A-26 of 7 December 2010 on affiliation agreements for independent shops, etc.).). The (...)

It will be recalled that, in three judgments handed down on the same day, the Paris Court of Appeals had ordered the online broker eBay to compensate several companies in the perfume sector to the tune of 5.6 million euros (CA Paris, September 3, 2010, Sté eBay Inc and eBay AG v. Louis Vuitton (...)

Cass. com, 20 March 2012, Mr. X v. Ms. Y, No. 11-15287 Because of its financial stakes (Com. C., art. L. 134-12), the status conferred on commercial agents is very frequently claimed or contested before the courts. In these circumstances, it is generally the status of the agent which is (...)

Cass. com, 29 November 2011, Bovami v. Valgest, No. 10-25799 Can a supplier compete with its distributors? This was the question put to the Court of Cassation in a dispute in the specific context of the "Relais des mousquetaires". Set up by the Intermarché brand, these relays ensure the (...)

Cass. com, 17 January 2012, Karlsbrau v. Farigoulette, No. 11-10641 The so-called "beer contract" is probably the most basic of all distribution contracts. Only three stipulations contribute to its content. The first is an exclusivity clause, which obliges the distributor to obtain beer and (...)

Cass. com, October 4, 2011, Hyper Saint-Aunès c/ Carrefour hypermarkets, n° 10-21862 Since the establishment of comparative advertising in the early 1990s (see C. conso., art. L. 121-8 et seq.), commercial communication has become increasingly aggressive, particularly when the first (...)

Cass. com, 6 September 2011, Carrefour proximité France and CSF c/ ITM Sud-Est France, n° 10-23051 Cass. com, 6 September 2011, Carrefour proximité France and CSF c/ Distribution Casino France, n° 10-20776 Almost systematically arbitrated, disputes in the context of food distribution (...)

Context of the judgment Since the mid-1990s, the European exemption regulations applicable to the automotive sector have included provisions designed to guarantee the independence of the distributor. In this respect, both Regulation 1475/95 and its successor Regulation 1400/2002 provide in (...)

Cass. com, March 29, 2011, Land Rover v. Auto 24, #10-12734 Fully enshrined in Regulation (EC) No. 1400/2002 (Article 1.1.g), the quantitative selection of motor vehicle distributors is regularly disputed by manufacturers when they refuse to grant approval (see also recently: Cass. com, 28 (...)

Cass. com, 15 March 2011, Mikit France v. M. X..., No. 10-11871 Context of the judgment The obligation to provide pre-contractual information, which is currently set out in Article L. 330 3 of the French Commercial Code, and which was introduced by the Doubin Act of 31 December 1989, is a (...)

The non-reaffiliation clause has been providing abundant news in recent months. After a controversial ruling by the Cour de cassation calling for the application of a more flexible regime than that reserved for true non-competition clauses (Cass. com., 28 September 2010, appeal no. 09-13888, (...)

Cass. com, September 28, 2010, BMW c/ Sodac, n° 09-16424 and 09-16753 In the motor vehicle sector, the transition from one exemption regulation to another generally favours the reorganisation of distribution networks and, consequently, the exclusion of distributors whose approval had (...)

In the course of the 1990s, social, commercial and then civil case law on non-competition clauses gradually became stricter: in addition to the traditional requirement of limiting the scope of the clause (e.g. Cass. com., 12 Jan. 1988, Bull. civ. IV, No 31), a condition of proportionality to (...)

CA Paris, September 3, 2010, eBay Inc and eBay AG v/ Christian Dior Couture, JurisData no. 2010-015040 CA Paris, September 3, 2010, eBay Inc and eBay AG v/ Louis Vuitton Malletier, JurisData n° 2010-015044 CA Paris, September 3, 2010, eBay Inc and eBay AG v/ Parfums Christian Dior, JurisData (...)

The prohibition of sudden break of established business relationships, as introduced by the 1996 Galland Act, was intended to correct the imbalance provoked by the purchasing power of the large retail distribution. The case law however considerably widened the field of application of this (...)

It has been known since 1998 that failure to comply with the obligation to provide information under article L. 330-3 C. Com. only leads to the annulment of the distribution contract if it has resulted in vitiating the distributor’s consent (Cass. com., 18 Feb. 1998, Bull. civ. IV, No. 71; D. (...)

The non-reaffiliation clause stipulated as an accessory to a franchise agreement is a recurrent dispute, as franchisors are reluctant to see a point of sale switch to a competing brand (See lastly CA Paris, 17 Sept. 2009, ConcurrencesNo. 1-2010, p. 119, obs. D. Ferrier). In this case, a (...)

Cass. com, January 19, 2010, Groupe Expert v. Spouse C., n° 09-10980, published in the Bulletin More than twenty years after its adoption, the law known as the "Doubin" law, now set out in article L. 330-3 C. Com. still gives rise to novel questions, as is apparent from the judgment (...)

Regulation (EC) No 1400/2002, which entered into force on 1 October 2002, exempts certain agreements for the distribution of new motor vehicles, spare parts or repair and maintenanceservices. Replacing Regulation (EC) No 1475/95, the new system put an end to the cumulation of selectivity and (...)

Cass. com, May 28, 2009, Auchan v. X... International, No. 08-11520 Exclusive distribution systems set up by manufacturers are, like selectivedistribution systems, confronted with parallel distribution phenomena. The defence of the coherence and economic viability of these networks cannot, (...)

ECJ, 23 April 2009, Copad v. Christian Dior Couture, case C-59/08 Any selective distribution system is confronted with parallel distribution phenomena which the network promoter seeks to combat in order to preserve the coherence and economic viability of its distribution model. In this (...)