Fidal (Paris)

Régis Pihéry

Fidal (Paris)
Lawyer (Partner)

Régis Pihéry joined Fidal in July 2008. He provides legal assistance to many French groups of international dimension and SMEs, and is in charge of litigations regarding competition (cartel, restrictive practices...), distribution (franchising, selective distribution, exclusive distribution, internet...) and consumer law (unfair commercial practices, advertising, abusive clauses), in front of French Courts or arbitrators. Régis graduated from the Law School of the University of Exeter (LL.M. in International Business Law, 2008) and from the University of Rennes 1 (Master II in Business and Taw Law - DJCE, 2007).

Linked authors

Fidal (Paris)
Fidal (Paris)

Articles

102084 Review

Dominique Ferré, Régis Pihéry Restrictive practices: Study of the 2013 CEPC Report

595

Ever since the enactment of the Dutreil Act on August 2, 2005, France’s commercial practices oversight committee (the CEPC) has, each year, prepared a report on case law developments in the area of restrictive practices (Title IV of Book IV of the Commercial Code). The report is drawn up on the (...)

Régis Pihéry Sudden breach: The Cour de cassation considers sudden rupture resulting from the obscure and vague indication of the intention of the author to continue the relationship (Taurisson/BMW France)

99

Cass. com, 14.05.2013, Taurisson v. BMW France, No. 12-15.390 A car dealership contract entered into on October 1, 2003 for a period of 5 years stipulated that each party had to notify the other party at least 6 months before the end of the term of the contract of its intention not to renew (...)

Régis Pihéry Sudden breach : The French Supreme Court decides that the established relationship with an advisor on industrial property does not fall within the scope of Article L. 442-6, 1, 5 ° of the Commercial Code (Inlex IP expertise/Galeries Lafayette)

136

Cass. com, 03.04.2013, Inlex IP expertise v. Galeries Lafayette, No. 12-17.905 A company managing a department store had decided to terminate its contractual relationship with an intellectual property consulting firm managing its portfolio of trademarks and domain names. The IP consultancy (...)

Régis Pihéry Franchise: The Dijon Court of Appeal reminds that the involvement of the franchisor in the business of the franchisee does not automatically make him an employee (Telima Dijon)

93

Dijon CA, 21.03.2013, Mr. M. / Telima Dijon, RG n° 12/00699 Ruling on an application to re-characterise a franchise agreement as a contract of employment, a court of appeal noted that the franchisor : Drafted the employment contracts of the personnel recruited by the franchisee, validated their (...)

Régis Pihéry Branch manager : The French Supreme Court holds that article L. 7321-2 of the French labour Code is in conformity with article 6 § 1of the ECHR (Total raffinage marketing)

89

No. 11-22.365; No. 11-20.460; No. 11-21.278 While service station operators had been granted the status of "branch manager", the oil company claimed that the criterion of quasi-exclusivity laid down in Article L. 7321-2 of the Labour Code was not defined and did not allow the supplier to (...)

Dominique Ferré, Régis Pihéry Restrictive practices: The 2012 CEPC’s report

557

Ever since the enactment of the Dutreil Act on August 2, 2005, France’s commercial practices oversight committee (the CEPC) has, each year, prepared a report for the French Government and Parliament on case law developments in the area of restrictive practices (Title IV of Book IV of the (...)

Régis Pihéry Unfair competition : The Metz Court of Appeal considers that a company has not committed an act of unfair competition by hiring the employees of a competitor in lack of non competition clause (Coiffure Moderne/Look and Coiff)

115

Metz CA, 13.09.2012, Coiffure Moderne c/ Look and Coiff, RG n° 09/03409 A company operating a hair salon accused a rival salon of massively poaching several members of its staff and then capturing its clientele. An appeal court rejects unfair competition: A former employer cannot defeat the (...)

Régis Pihéry Discriminatory clause: The Paris Court of Appeal retains that the practices implemented by the two airlines are agreements contrary to Article 101, paragraph 1 of the TFEU and L. 420-1 of the French Commercial Code (Les connaisseurs du voyage/British Airways)

337

CA Paris, December 14, 2011, Les connaisseurs du voyage c/ British Airways PLC, RG n° 09/20639 Comments The General Terms and Conditions of Sale (GTS) of two airlines prohibited travel agents from benefiting from the more advantageous tariff conditions in other Member States by reserving the (...)

Régis Pihéry CGV: The Paris Court of Appeal holds that the practices of two airlaine companies constitutes concerted practices under Article 101 (1) TFEU and Article L. 420-1 of the French commercial code

295

CA Paris, December 14, 2011, Les connaisseurs du voyage c/ British Airways PLC, RG n° 09/20639 The General Terms and Conditions of Sale (GTS) of two airlines prohibited travel agents from benefiting from the more advantageous tariff conditions in other Member States by reserving the fares they (...)

Régis Pihéry Commercial Agency : The French Supreme Court holds that serious default of commercial agent is assessed not only in consideration of the breach of the contract (Bareyre)

110

Cass. com, 21 June 2011, Bareyre, Appeal No. 10-19.902 A court of appeal had dismissed a sales agent’s claims for compensation in lieu of notice and for termination of contract for serious misconduct on the grounds that, "having failed to make certain visits to customers at agreed intervals, he (...)

Régis Pihéry Sudden breach: The Versailles and Paris Courts of Appeal hold that according to Article L. 442-6, I, 5° of the French Commercial Code the use of an invitation to tender does not always justify a sudden breach of commercial relationships (Terre de Sienne, Carrefour, Accor)

1122

CA Versailles, March 10, 2011, Terre de Sienne c/ Carrefour, RG n°09/09875 Paris Board of Directors, March 24, 2011, Accor, RG n°07/07337 The decisions handed down on the termination of commercial relations show that brutality cannot be invoked when the relationship is not stable and therefore (...)

Régis Pihéry Comparative advertising: The Court of Justice holds that non-identical food products may be the subject of price-comparative advertising provided that they do not mislead the consumer (Lidl)

745

CJEU, 18 November 2010, Lidl v Vierzon Distribution, Case C-159/09 A major retailer had run an advertisement reproducing receipts for the purchase of some thirty food products, identified by generic names ("margarine", "cream spread", "tomato purée", etc.), at its premises and at the premises (...)

Régis Pihéry Service providers: The Legislator imposes new information obligations on service providers through Act no. 2010-853 of July 23, 2010 on the chambers of commerce, commerce, craft industries and services

1014

The law of 23 July 2010 on consular networks, trade, crafts and services transposing the European directive 2006/123/EC of 12 December 2006, placed new information obligations on service providers with regard to the recipients of these services, regardless of whether the latter are consumers or (...)

Régis Pihéry Unfair commercial practices : The French Supreme Court follows ECJ case law regarding the application of Directive 2005/29/EC concerning unfair commercial practices (SFR / Free)

921

The Court of Cassation agrees with the Paris Court of Appeal that, in accordance with the case law of the Court of Justice of the European Union, Directive 2005/29/EC concerning unfair business-to-consumer commercial practices must be interpreted as meaning that it "precludes national (...)

Régis Pihéry Sales agent : The French Supreme Court holds that the principal may invoke a serious fault committed by its sales agent before termination of the contract but discovered after (ADT France / Boss production)

979

In the event of termination of his relations with the principal, the commercial agent is entitled to compensation for the loss suffered (Art. L. 134-12 C. com). This compensation is not due if the termination of the contract is caused by the agent’s serious fault (Art. L. 134-13 C. com.). The (...)

Régis Pihéry Consumers’ association : The Paris Court of Appeal holds that a consumers’ association that urges consumers to join an action against a company found guilty of an illegal cartel thereby engages in the illegal marketing of legal services (UFC Que Choisir / Bouygues Télécom)

2573

Facts A mobile telephone company had been sanctioned by the Competition Authority for having taken part in an illegal cartel within the meaning of Article 81 of the EC Treaty (now Article 101 TFEU) and L. 420-1 of the French Commercial Code, the Authority observing in particular that the (...)

Corinne Hovnanian, Régis Pihéry Sales agent: The French Supreme Court holds that a sales agent is not entitled to an indirect commission unless he has been assigned a specific sector (Amg2r / Marini Silvano)

2145

Facts A commercial agent whose contract had been terminated had summoned his principal in payment of commissions and compensation in lieu of notice and severance pay. The Court of Appeal had rejected the request for payment of a termination indemnity on the grounds that the termination was (...)

Régis Pihéry Commercial negotiations : Various French Courts assess the legality of distributor’s practices under Art. L. 442-6 Commercial code (Carrefour / Mr Bricolage / Galec)

2667

Commercial Court of Evry, 14 October 2009, Minister of the Economy v Carrefour Hypermarkets, n°2008F00380; CA Versailles, 29 October 2009, GALEC v. Minister of the Economy, RG n°08/07356; Paris Board of Directors, 18 November 2009, SACCA v. Carrefour Hypermarchés, RG n°09/00341; Orléans Commercial (...)

Régis Pihéry Advertising : The French Supreme Court pronounces on the legality of an advertisement that depicts the price of non-reimbursable drugs as excessive (Univers Pharmacie / Galec)

2255

The central purchasing office of a supermarket chain had carried out an advertising campaign questioning the price of non-reimbursed medicines, with the message: "with the increase in the price of medicines, treating a cold will soon be a luxury", illustrated by a drawing of a bust showing a (...)

Régis Pihéry Vertical restraints: The French Competition Authority publishes an opinion on the review of the Regulation (EC) 2790-1999 and the Guidelines relating to vertical restraints

2132

The Competition Authority has issued an opinion on the revision of Regulation (EC) No 2790/1999 and the Guidelines on Vertical Restraints. The Commission summarises the relevance of these texts, which it has had occasion to apply in four opinions and 42 decisions (mainly in the fields of fixed (...)

Régis Pihéry Liability for defective products : The EU Court of Justice holds that Directive 87/374/EEC relating to liability for defective products, does not conflict with the French rules on compensation for damage to an item of property intended for professional use (Moteurs Leroy Somer)

5253

Directive 85/374/EEC provides that the producer of a defective product is liable not only for personal injury to the victim, but also for damage to his property provided that it is "of a kind normally intended for private use or consumption and was used by the victim primarily for his private (...)

Régis Pihéry Agency relationship : The French Supreme Court holds that an agency relationship is characterized as being in the principal’s and agent’s “mutual interest” where they have a shared interest in developing the customer base (Lechevin)

3969

A real estate agent had concluded a "contract of mandate with a representative with the status of a commercial agent". As the representative had summoned the real estate agent to record the breach of contract and to pay various sums, the latter counterclaimed for the nullity of the contract. (...)

Régis Pihéry NCA’s opinion : The French Competition Authority initiates for the first time proceedings ex officio in view of rendering an opinion on the questions raised by the upcoming opening of the railway sector to competition (Land transportation)

1719

Making use of its new prerogatives for the first time, the Competition Authority has taken up the matter on its own initiative in order to give an opinion on the questions raised by the forthcoming opening up of the rail sector to competition. The Authority thus wishes to shed light on the (...)

Régis Pihéry Salesperson : The French Supreme Court holds that a contract cannot preclude a sales person from receiving a commission when it is the employer who prevents the commission-triggering event from occurring (Périmètre)

1599

In the relations between a company and a sales representative, the Social Chamber of the Court of Cassation stresses "that if it can be contractually provided that orders not carried out successfully do not give rise to commission, it is on the condition that it is without fault on the part of (...)

Didier Ferrier, Régis Pihéry Trade intermediary : The EU Court of Justice holds that a trade intermediary, by selling products in its own name but on behalf of its principal, uses the trademark within the meaning of Article 9 of the EC regulation on the Community trademark (Brandtraders)

2370

Facts Brandtraders operates a website on which Internet users can anonymously place an ad as a seller or as a buyer and where they can also anonymously negotiate their transactions. Brandtraders, as soon as it is informed of the acceptance of the offer of sale, concludes a contract of sale (...)

Dominique Ferré, Régis Pihéry Resale at a loss : The Paris Court of Appeal decides on the retroactive application of the amendments provided to Articles L. 441-7 and L. 442-2 of the Commercial code (Carrefour)

2470

CA Paris, January 28, 2009, Carrefour et Interdis c/ Ministère public and UFC Que Choisir, RG n° 09-000647 Facts 1st species: Following several DGCCRF inspections between 04 October 2004 and 25 August 2005, a distributor was prosecuted for reselling at a loss. Considering that the law of (...)

Dominique Ferré, Régis Pihéry Imperative provisions of the Consumer code : The French Supreme Court holds that judges may seize on their own motion of breach of imperative provisions of the Consumer code (Crédit mutuel de Saint-Marcelin)

4055

Facts In a dispute with an individual over the repayment of a loan, a credit company was challenging the court’s decision to reject its claim for payment of contractual interest. It argued that the provisions of Articles L. 311-8 et seq. of the Consumer Code relating to the credit agreement (...)

Dominique Ferré, Régis Pihéry Sales representative : The French Supreme Court recalls that the existence of a legal dependance is not a criteria of the sales representative status (Gestrim)

2127

Facts The signatory of a contract entitled "mandate", which expressly excluded the application of the provisions of the Labour Code relating to the sales representative in favour of the commercial agency system, claimed before the industrial tribunal the status of exclusive sales (...)

Anne-Cécile Martin, Régis Pihéry Sudden termination of a commercial relationship : The CEPC issues its 2009 report on the decisions rendered with respect to restrictive practice issues and reveals the importance of the "sudden termination of a commercial relationship" argument

1513

Commission d’examen des pratiques commerciales, activity report for 2009 The publication of the CEPC’s latest annual activity report (transmitted to the Government and Parliament pursuant to the Act of 2 August 2005) shows, once again (see the CEPC report for 2006, 2007 and 2008), in the review (...)

Dominique Ferré, Régis Pihéry Non re-affiliation clause : The French Supreme Court validates the non re-affiliation clause which prohibits for a time period limited to one year the use of a known trade name within a radius of five kilometres from the store (ITM Entreprises)

1982

Facts The promoter of a large distribution network had inserted in the affiliation contract it had granted to a company a non-reaffiliation clause prohibiting the latter, in the event of termination, for one year and within a radius of five kilometres, from using a "sign of national or (...)

Régis Pihéry Trade negociation in supermarkets: The French Ministry of Finance publishes an instruction tax relating to the tax treatment of items for negotiation referred in Art. L. 441-7 Commercial Code

2169

The tax instruction (3 E2 08) of 19 November 2008 relating to value added tax, commercial negotiations in the retail sector, and invoicing procedures, provides details on the treatment of the negotiation items referred to in Article L. 441-7 of the French Commercial Code. It seems to be (...)

Régis Pihéry Commercial agent : The French Supreme Court recalls the conditions for assessing the damages due to the commercial agent in case of cease of relationships (Gosteau / Eurelco)

2193

Facts Two commercial agents who considered that the breach of their agency contract was attributable to their principal had summoned the latter to pay termination indemnities, notice, commission and damages. In their defence, the principal argued, inter alia, that the two commercial agents had (...)

Régis Pihéry Franchising : The French Supreme Court holds that a franchising contract is an intuitu personae contract in favor of the franchisee (Diapar / Prodim - Lesage / Casino)

2861

Cass. com, 3 June 2008, Lesage v. Distribution Casino France, appeal no. 06-18.007 Facts A franchisee had prematurely terminated its franchise agreement with a grocery store chain and affiliated with a competing chain. The former franchisor had then assigned the franchisee and had obtained an (...)

Régis Pihéry Predatory pricing : The French Competition Council considers that the “consumer” referred to in Article L. 420-5 of the Commercial Code regarding unfairly low prices is one lacking special experience (Segard)

2285

Facts A hospital centre had issued a call for tenders for the provision of general assistance to the contracting authority, a mission related to the construction of an establishment for the accommodation of dependent elderly persons. A bidder, denouncing the "abusively low price" bid made by (...)

Régis Pihéry Cease of commercial relationships : The Paris Court of Appeal holds that a retailer can not apply for damages where the supplier has made known on its website the name of the futur new retailer (Bayo/Garmin)

1814

Facts A supplier of aeronautical and electronic equipment had notified its regular distributor of the termination of their business relationship with six months’ notice. Prior to the expiry of this notice period, the supplier had informed its customers of the identity and contact information of (...)

Régis Pihéry Commercial agent : The Paris Court of Appeal holds that a so-called "commercial agency" contract is in fact a brokerage contract (Etam Intn. Sourcing /Turkey Tekstil Mumessilik)

2534

Facts A commercial agency contract had been concluded between EIS and TTM, under which the latter had been entrusted with a "mission to monitor the market, search for suppliers and follow up orders placed by the EIS] group[". EIS wished to terminate this contract by means of an amendment, (...)

Régis Pihéry Delivering of goods to consumers : The French Commission of Study of Restrictive Practices issues a negative opinion on goods delivery services by retail distributors

1839

The Commission d’examen des pratiques commerciales observes that "certain employees of undertakings which supply products or services are called upon by the undertaking receiving these products or beneficiaries of these services to perform on behalf of the latter tasks of a generally logistical (...)

Régis Pihéry Comparative advertising : The French Supreme Court holds that an undertaking using comparative advertising may be held liable on the basis of unfair competition (Thiers Distribution/LIDL)

2136

If, since the opening up of television advertising to distribution as of January 1, 2007, the brands emphasize in their advertising messages the values they intend to represent, they should quickly make use of comparative advertising, thus trivializing a form of advertising that has been little (...)

Régis Pihéry 175. Selective distribution: The French Competition Council decides on practices in the area of selective distribution equipment Hi-fi and home cinema (Bose-Focal-Triangle)

2188

By a decision of 5 October 2006, the French Competition Council accepted the commitments submitted by Bose, Focal JM Lab and Triangle to modify the contractual provisions binding them to their resellers in order to allow the latter to market their products via the Internet. These changes (...)

Régis Pihéry Trade show: The Government regulates sale of goods on the spot at a trade show (Decree No. 2006-768 of 29 June 2006 on the ceiling value of the goods offered for sale locally and for the personal use of the purchaser in during a trade show)

1785

The new Article L. 762-2 of the French Commercial Code, inserted by Order No. 2006-673 of 8 June 2006, states in its first paragraph: "a trade show is a commercial event devoted to the promotion of a set of professional activities reserved for visitors with a permit. It only offers for sale on (...)

Régis Pihéry Commercial agent: The Paris Court of Appeal rules that the commercial agent who claims another statute is deprived of his right to a termination indemnity (Gailhou Durdos)

1732

Facts A commercial agent informed his principal of his wish to replace his status with that of V.R.P. and was struck off the register of commercial agents. When the principal rejected his claim, the agent summoned him to pay his severance pay. When his claim is dismissed at first instance, (...)

Régis Pihéry Prior information to the future manager-agent: The Governement adopts a decree on information to be provided to the manager-agent by the client before signing the contract

1626

Article L. 146-2 of the French Commercial Code, resulting from the Dutreil law, stipulates that the principal must provide the managing agent, before signing the contract, with all the information necessary for its mission in order to enable it to commit itself in full knowledge of the facts. A (...)

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