Philippe Vanni

Fidal (Bordeaux)
Lawyer (Managing Partner)

Philippe Vanni heads the "Competition & Distribution" Department for FIDAL Law firm in the Bordeaux and Limoges offices. In that capacity Philippe Vanni has extensive experience advising clients on National and European Competition Law, restrictive practices rules and consumer regulatory constraints. In particular, he regularly assists suppliers and retailers and also provides legal assistance to distribution networks. As a partner of the Bordeaux and Montpellier Universities, Philippe leads a large number of conferences on Competition and Distribution Law subjects.

Linked authors

Fidal (Paris)
Loi & Stratégies

Articles

71569 Review

Philippe Vanni Commercial agency: The Versailles Court of Appeal rules on the link between failure to achieve objectives and failure to prospect and on the delimitation in space of a post-contractual non-competition clause (Egetra)

31

The commercial agency contract is definitely at the heart of this quarter’s case law. The terms and stakes of the qualification (Cf. CJEU 4 June 2020 V. supra. note N.F.) should not overshadow the importance of the issues that otherwise arise in relation to its execution. A decision of the Court (...)

Philippe Vanni Commercial agency: The Orleans Court of Appeal considers the clause instituting a trial period to be lawful even though the parties had already collaborated together and evaluates the amount of the termination indemnity by taking into account the duration of this previous collaboration (Villa / Fadin)

34

It is now known that the commercial agency contract may include a clause under the terms of which the agent must serve a trial period and that he is entitled to payment of the termination indemnity provided for in Article L. 134-12 of the Commercial Code, including when the termination of the (...)

Philippe Vanni Franchise: The French Supreme Court censures the trial judges for not having investigated whether the granting of illegal payment delays by the franchisor, within the franchise network, had not had the effect of unfairly advantaging its franchisees to the detriment of those of a competing network (Speed Rabbit pizza / Domino’s pizza France)

105

The control of the "fairness of commercial practices" is first of all ensured, between professionals, by specific provisions of the Commercial Code (Chapter II, Title IV of Book IV C. com. resulting from Order No. 2019-359 of 24 April 2019).) which penalise practices restricting competition and (...)

Philippe Vanni Selective distribution: The Paris Court of Appeal refuses to sanction a refusal of approval on the grounds that it constitutes neither an agreement nor a breach of the general duty of good faith, which is assessed without distinction according to the type of network (Garage de Bretagne / Mercedez-Benz France)

98

The articulation of case law solutions rendered on the basis of general liability law and competition law regarding the refusal of approval of network candidates meeting the selection criteria set by the promoter of a selective distribution network is still at the heart of this quarter’s case (...)

Philippe Vanni Franchise: The Paris Court of Appeal confirms the serious and non-wilful wrong of the franchised company and the personal liability of its director for having created, during the franchise contract, a competing company using the distinctive signs of the franchisor’s concept (Buffalo Grill / Val Trappeur)

109

While it may be possible for a former franchisee to continue in business after the termination of the franchise agreement in defiance of a post-contractual non-competition clause, much rarer is the situation in which he creates a competing business, using the distinctive elements of the concept (...)

Philippe Vanni Commercial agency: The Besançon Court of Appeal rules that intermediary cannot be qualified as a commercial agent in the absence of a power of representation conferred by a mandate (France Épargne)

110

In the present case, an intermediary had concluded a partnership agreement under which he had to seek buyers wishing to invest in residential property in return for remuneration payable after signing the authentic deeds of sale and receiving the funds. A clause in the contract provided for the (...)

Philippe Vanni Restrictive practices of competition: The Cour de cassation states that the refund of the overpayment shall be only on the amount exceeding the actual value of the services actually rendered (Carrefour hypermarchés)

89

Cass. com, September 10, 2013, Carrefour hypermarkets, No. 12-21.804 A major distributor had been summoned by the Minister of the Economy to annul the clause relating to the remuneration of "separate services" stipulated in agreements concluded in 2005 and 2006 with 15 suppliers, as well as to (...)

Philippe Vanni Excessive clauses: The Court of Justice specifies the role of the judge in the presence of an excessive penalty clause (Erika Jőrös/Aegon Magyarország Hitel Zrt. ; Dirk Frederik Asbeek Brusse, Katarina de Man Garabito/Jahani)

167

CJEU, 30.05.2013, Erika Jőrös v. Aegon Magyarország Hitel Zrt; Dirk Frederik Asbeek Brusse, Katarina de Man Garabito v. Jahani BV, cases C-397/11 and C-488/11->doc19955 In two rulings handed down on the same day, the ECJ confirmed its case law on the office of the judge and clarified its role (...)

Philippe Vanni Mediation clause : The French Supreme Court holds that the mediation clause related to a contract concluded in 2006 shall not apply to a commercial relationship established in 2002 (Eurauchan/Moyrand Bally)

99

One company had entered into a commercial relationship with an SEO centre as early as 2002, and then concluded several SEO contracts with it, the last one in 2006. In 2007, the company claimed that the central had abruptly terminated their business relationship and had sued the company for (...)

Philippe Vanni Abrupt termination of established commercial relationship: The Court of Cassation approves an appellate court decision granting a provision to the victim of an abrupt termination and orders a measure of expertise to estimate his prejudice provided the causal link between the damage and the behaviour of the commercial partner (Stim/Visio Sys)

130

Cass. com, 20.03.2012, Stim v. Visio Sys, No. 08-14.062 A distributor felt that it was the victim of a partial termination of a commercial relationship by its supplier, who without notice increased prices and worsened payment terms. An appeal court had ordered the supplier to pay the (...)

Philippe Vanni Commercial cooperation agreements: The Court of Cassation renders a court decision against a large retailer for having procured benefits that were manifestly disproportionate to the value of the services it had provided to its suppliers (Carrefour France)

119

Cass. com, April 27, 2011, Carrefour France, appeal n° 10-13.690 Facts At the end of an investigation into all the commercial cooperation contracts concluded between a Carrefour retail outlet and its suppliers, the DDCCRF found that the retailer would have received, for 22 different contracts, (...)

Philippe Vanni Sudden break-offs : The French Supreme Court recalls that the non-profit status of a services activity does not preclude application of Article L. 442-6, I, 5° of the French Commercial Code, sanctioning sudden break-offs of established commercial relationships (MACIF)

821

Following the termination by mutual insurance companies of two approval agreements entered into with a car repairer, the latter had sued them for wrongful termination on the basis of Article L. 442-6, I, 5 of the French Commercial Code. In refusing to apply Article L. 442-6, I, 5 of the (...)

Philippe Vanni Unfair terms: The CJEU holds that the EU Directive on unfair terms does not preclude Member States from maintaining more restrictive provisions in favor of consumers (Ausbanc)

1009

A question had been referred to the Court of Justice of the European Union (CJEU) for a preliminary ruling as to whether the provisions of Directive 93/13/EEC on unfair terms in consumer contracts precluded a Member State from providing in its legal system, for the benefit of consumers, for (...)

Philippe Vanni Abusive clause: The French Supreme Court holds that an arbitration appraisal agreement signed between an insurer and an insured further to a dispute does not constitute a clause in a B-to-C contract (AGPM Vie)

1583

The victim of an accident had signed a protocol of arbitration expertise with his insurer in order to determine the date on which he could be considered totally and permanently disabled, the parties declaring that they would rely on the arbitrator’s decision and waive all subsequent disputes. (...)

Philippe Vanni Article L. 441-7 of the French Commercial Code: The French Supreme Court approves of the judgment of the Court of Appeal that considered that single agreement between a supplier and a distributor must contain all the items provided for in Article L. 441-7 of the French Commercial Code (Interdis)

2023

Facts The Paris Court of Appeal had sentenced a distributor for having concluded between December 2005 and March 2006 commercial cooperation agreements and separate service contracts "not specifying the content of the services rendered" in accordance with Article L. 441-7 of the French (...)

Philippe Vanni Price-comparison websites: The French Supreme Court decides on the burden of proving the inaccuracy of prices indicated on price-comparison websites (Carrefour / Galec)

1564

A cooperative society of purchasing groups had opened a website for the purpose of comparing the prices charged by the major retailers for the sale of numerous products. Seized by a competing distribution company, the judge ordered the suspension of the operation and publishing of this site in (...)

Philippe Vanni Incorrect invoices : The French Supreme Court holds that companies that issued incorrect invoices are found guilty of forgery (Compagnie générale de conserves)

2104

A check carried out by the Morbihan competition department revealed that a producer of canned vegetables (Société CGC) which sold products under private labels had been charged higher selling prices than those it had offered by SCA Légumes, a subsidiary of Intermarchandises France (ITM) and the (...)

Philippe Vanni Commercial cooperation : The Colmar Court of Appeal confirms the case law having considered admissible action of the Minister of the Economy in lieu of the retail distributor against fake commercial cooperation agreements

2010

Facts An investigation conducted by the DGCCRF in a hard discount store revealed the existence of commercial cooperation contracts "without any real consideration", and the Minister of the Economy brought an action on the basis of Article L. 442-6 III of the Commercial Code. As these (...)

Philippe Vanni Breach of commercial relationships: The Douai Court of Appeal rules that a sudden modification of tariffs and payment conditions may be sanctioned under Article L. 442-6, I, 5° of the Commercial code (GMBH / Agrotronix)

1698

Facts A German supplier, which has had a business relationship with its French distributor since 1991, informed the French distributor in September 2002 that from 1 January 2003 it would supply its three largest customers directly. Three years later, it decides, without notice and (...)

Philippe Vanni Commercial cooperation agreement: The Nîmes Court of Appeal confirms that the Ministry of Economy has no power to claim any civil sanction against a supplier in the place of the distributor (EMC Distribution)

2318

Facts In the context of commercial relations between the central purchasing office of a supermarket chain and a supplier, agreements have been concluded in implementation of commercial cooperation agreements. Arguing the fictitious nature of certain contractually agreed services and therefore (...)

Philippe Vanni Breach of relationships : The French Supreme Court confirms that recourse to tenders amounts to the decision of the partner to cease relationships and may serve as a starting point in order to calculate the duration of the notice (Sony/Dall’Agnol)

2272

Facts A company had notified an industrial cleaning service company with which it had a commercial relationship of the decision to put the contract concerned out to tender, in which the company was invited to participate. Since this notification was made in May and the announcement of the (...)

Philippe Vanni Cessation of commercial relationship : The Paris Court of Appeal holds that the fact for a supplier to start relationships with other retailers may constitute a breach of established commercial relationships with regard to the fomer sole retailer (Laboratoire Adequat)

1901

Facts A dental prosthesis supplier had had a three-year business relationship with two dental centres. As the orders had ceased, the supplier had solicited its contracting partners, who notified it of their willingness to continue the business relationship, but only dealing with one of the (...)

Philippe Vanni Commercial cooperation : The Reims Court of Appeal holds that the Minister of Economy can not act in lieu of the retailer in case of fake commercial cooperation contracts

1801

Facts In the context of commercial relations between the central purchasing office of a supermarket chain and a supplier, four commercial cooperation contracts had been concluded. Arguing the fictitious nature of some of the services provided for in the contract and therefore the nullity of (...)

Philippe Vanni Commercial agent : The French Supreme Court recalls that in order to benefit from a commercial agent status, a representative must have the power to negotiate in the name and on behalf of its principal (Bonnet/Bacchus)

2109

Facts A contract entitled "distribution contract" was signed between F. Bonnet and Bacchus. This contract stipulated that the Bacchus company’s mission was to market F. Bonnet’s champagnes. Customers would be invoiced directly by Bonnet. The contract also stipulated that Bacchus would be (...)

Philippe Vanni De facto exclusivity: The French Competition Council grants interim measures against alleged de facto exclusivity clause having taken into account terms of termination (Emettel/TDF)

1893

Facts In 2003, a dominant terrestrial broadcasting provider concluded exclusive seven-year contracts with several public channels. A competitor of this supplier, believing that the latter was abusing its dominant position on the grounds that it was foreclosing the market by reducing the (...)

Philippe Vanni Commercial cooperation: The French Supreme Court holds that the lack of precision or errors in the wording of commercial cooperation agreements cannot constitute proof that the services were not rendered (Vierzon Distribution)

1886

Facts One distributor had concluded commercial cooperation agreements with some of its suppliers providing for "non-management services" and "range optimisation services". Taking the view that the services contained in these agreements did not correspond to a commercial cooperation service (...)

Philippe Vanni Distribution of beer : The Paris Court of Appeal holds that the amount of the penalty clause provided by an exclusive purchasing contract may be amended only whether it is clearly excessive (Société Brasseries Kronenbourg)

2650

Facts Brasseries Kronenbourg has concluded a ’brewery contract’ with a pub operator whereby the latter undertakes, on an exclusive basis and for a period of three years, to serve a certain volume of beer. The beer wholesaler designated by this contract shall avail himself of a penalty clause (...)

Philippe Vanni Out of the distribution contract: The Paris Court of Appeal rules that the distributor has to bear the costs of the stocks’ destruction if he does not fulfil the terms of the clause resume stock (Laboratoires Décleor/Fox Kosmetik)

3195

Facts A distributor of cosmetic products terminated its distribution contract in January 2000, with effect from the termination in December 2001. His contract providing for a "contractual] obligation [to buy back stock (...) at the end of the contract,] covering[all fresh produce less than (...)

Philippe Vanni Selective distribution : The French NCA decides on the merits and the request for provisional measures in the sector of selective distribution on the Internet (Bijourama/Festina France)

1751

Facts Bijourama, a company specialising in the sale of watch and jewellery products on the Internet, wishes to join the Festina group’s selective distribution network. The latter having rejected its request for approval, Bijourama referred the matter to the Competition Council, considering (...)

Philippe Vanni Payment deadlines : The Legislator publishes a new interpretation of the new paragraph of Arti. L. 441-6 C. com. on the deadlines for payment for transport (Law 2006-10)

2081

The interpretation of the new paragraph of Article L. 441-6 of the French Commercial Code relating to payment periods for transport raises questions. A literal interpretation of the new paragraph may lead one to think that agreeing to a payment term of more than thirty days (fine of 15°000 (...)

Philippe Vanni Break of commercial relationships : The Paris Court of Appeal specifies the elements to take into account to determine the duration of the notice required to break of commercial relationships (Interm’enzo)

1883

Facts Following the leasing of an operation, the services entrusted for ten years to a service company for operating purposes are interrupted without notice. The Commercial Court of Paris condemns the holder of the holding to pay damages for abrupt termination of established commercial (...)

Philippe Vanni Common minimum sale price : The French Competition Council sanctions an organization of white tuna productors which set common minimum sale prices (Secteur du thon blanc)

1729

Facts Several albacore tuna producer organisations were prosecuted for fixing common minimum selling prices. Decision "The fact that these producer organisations participate in meetings where common minimum prices are decided leaves no doubt as to their willingness to participate in a price (...)

Philippe Vanni Resale price maintenance: The Paris Court of Appeal confirms the French Competition Council’s decision having heavily fined a resale price maintenance case and applied the transaction proceeedings (Calculatrices scolaires)

2238

Facts During the years 1993 to 1996, two suppliers, Noblet and Texas Instrument together holding 89% of the market share in the market for scientific and utility calculators. have set up a commercial policy of recommending their products to schools. mathematics teachers and a pricing policy (...)

Philippe Vanni Opinion : The Commission for the study of commercial practices renders an opinion on the validity of some practices with regard to article L.°442-6 of the French Code de commerce

2237

Commission d’examen des pratiques commerciales, notice n° 04-02 relating to the compliance of certain practices with article L.°442-6 of the Commercial Code Facts Pursuant to Article L. 440-1, paragraph 4, of the French Commercial Code, the President of the French Competition Council has (...)

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